Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
118568360
label
JGR/Exclusionary Rule (1 of 2)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
118568360
contentType
document
title
JGR/Exclusionary Rule (1 of 2)
citationUrl
identifierLocal
485
collections
Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
118568360
coverageEndDate
logicalDate
1986-12-31
year
1986
coverageStartDate
logicalDate
1982-01-01
year
1982
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
686ca6907be8439c
ocrText
Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Exclusionary Rule (1)
Box: 24
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
71 Box 24 - JGR/Exclusionary Rule (1) - Roberts, John G.: Files
SERIES I: Subject File
Ex clus. Rok
THE WHITE HOUSE
WASHINGTON
January 4, 1983
MEMORANDUM FOR T. KENNETH CRIBB, JR.
ASSISTANT COUNSELLOR TO THE PRESIDENT
FROM:
JOHN G. ROBERTS are
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
New Study on Exclusionary Rule
I am attaching a recent story and editorial on the new NIJ
exclusionary rule study, which I mentioned at the last
Saturday Group meeting at Bruce Fein's. The study shows
that the exclusionary rule resulted in the release of 29% of
05 Angeles felony- drug- arrestees in Los Angeles in one year -- a far
ding 0.4% crywfroms the highly misleading 0.4% figure usually bandied
be highly about. Thise studya should be highly useful in the campaign
clusionary to amend or abolish the exclusionary rule.
Attachment
wer 18, 1982
LA HERALD EXAMINER
Page Al
Rule errors voided
out.
LAPD spokesman Commander
Bowers said the Los Angeles County
29% of L.A. drug
William Booth said of the report,
frample included more than 2,000 felony
"It's certainly a sad commentary
scases.
Robert Schirn, head of the Organized
cases, study shows
that in one out of three cases
where you've got the narcotics
Crime and Narcotics Division of the
district attorney's office, pointed out
suspect in one hand and his narcot-
ics in the other hand, someone
that a higher percentage of drug-related
By Susan Christian
arrests than others are thrown out
Herald Examiner staff writer
says, 'Oh, we have to let him go
because somebody stumbled along
because "wirtually every narcotics arrest
the way and some technicality
is the result of search and seizure" -
Nearly 4,000 people arrested in
while other felony cases don't always
Los Angeles on felony drug
wasn't followed."
involve evidence obtained by search and
charges last year were freed with-
The report's summary states
out standing trial because of viola-
that the study was "initiated to
seizure.
tions of complex search and seizure
provide current information on the
"And in other cases, if evidence
rules, according to a study released
impact of the exclusionary rule on
obtained through search and seizure is
yesterday.
state felony prosecutions."
thrown out, there is other evidence -
Ron Bowers, a deputy district
such as witnesses - to proceed with."
The survey, by the National
attorney who helped obtain statis-
This (search and seizure laws) is
Institute of Justice in Washington,
tics for the study, said the survey
something I've been upset about for a
D.C., found that 29 percent of the
was done in California because of
long time," said Schirn. "The officer is
11,965 felony drug arrests by the
the state's sophisticated data
expected to make a split-second judg-
Los Angeles Police Department in
1981 were rejected at the initial
processing system. "The figures are
ment about a law that attorneys and
easier to come by here," he said.
judges don't even understand. The
case review because police made
mistakes in seizing evidence. Re-
The exclusionary rule origi-
refficer is put on trial in narcotics cases
nated from a 1914 Supreme Court
Instead of the criminal." Schirn said.
sults for Los Angeles County were
decision that "evidence obtained in
"There should be a good faith excep-
similar, showing that 32.5 percent
tion to the exclusionary rule," be added.
of felony drug arrests were thrown
violation of Fourth Amendment safe-
"I think well over 90 percent of all
guards against improper search and
officers conduct searches in good faith
seizure would not be admissible in
unaware they are breaking some
federal prosecutions."
rule
PREDCT
"The exclusionary rule was rather
rule."
District attorney's spokesman Al Al-
started
simple when it started out," Bowers
the
bergate said the survey's results were no
Isaid. However, over the years there
surprise to him. "(District Attorney
have been thousands of court decisions
John) Van de Kamp has been working
that have come down, and each of those
for reform of the exclusionary rule for a
decisions spells out a different rule
regarding when an officer has probable
long time," he said.
cause to investigate.
"They're not really rules in the sense
that they are in a rule book," Bowers
continued. "The police officer is ex-
pected to know each one of those
appellate decisions, and what we're
seeing is that no one can know all of
!them."
The report indicated that the per-
centage of narcotics arrests rejected on
the grounds of improper search was
highly disproportionate to the percent-
age of total felony arrests rejected on
the same grounds. Only 4.8 percent
statewide and 11.7 percent in Los
Angeles County of all charges - narcot-
etcs, assaults, burglaries, murders, rapes
- were dismissed because of search and
seizure problems, according to the
study.
mber 22, 1982
LA HERALD EXAMINER
Page A14
LOS ANGELES
HERALD
EXAMINER
Francis L Dale/Publisher
N. S. Hayden/President
Mary-Apne Dolan
Theodore P. Grassi
David W. Feldman
Editor
General manager
Director of sales
Stanley W. Cloud/Executive editor
Leo J. Kelly/Circulation director
John P. Lindsay/Managing editor
Ray Willis/Production director
Sheena Paterson/Associate editor
John Reid/Director of finance
Joseph Farsh/Executive news editor
Milo Sutton/Director of marketing services
Bernee D.L. Strom/Assistant to the editor
Robert N. Schoenbacher/Advertising manager
Lee Beauregard/Ciassified advertising manager
Cops and the law
The
A new study questions the 'exclusionary rule'
that
should
new study by the National
that the exclusionary rule should be
Institute of Justice indi-
eliminated. We don't know, for in-
cates that the "exclusionary
stance, whether the local search-and-
rule," banning illegally ob-
seizure errors were "good-faith" slip-
tained evidence from court, has frus-
ups, or knowing violations of some-
trated law enforcement more than
one's constitutional rights. Still,
had earlier been documented. Ac-
stricter evidentiary rules have un-
cording to the study, the rule resulted
questionably made the job of the
in the release of one out of three
police more difficult, which, in itself,
people arrested in Los Angeles last
is neither good nor bad. But if the
year-on felony drug charges. Of those
exclusionary rule has, indeed, un-
released, most had serious records
fairly tilted the balance, changes are
and apparently returned to their
in order.
criminal ways.
The suggestions so far aren't very
Such statistics are disturbing -
promising, however. We still think the
and surprising. We have defended the
"Victims' Bill of Rights," which all but
rule, in part because there was little
threw out the exclusionary rule, is no
evidence that it hampered law en-
answer. The "good faith" exception
forcement. A 1978 federal study
(allowing illegally seized evidence,
showed, on the contrary, that search-
provided police thought they were
and-seizure errors accounted for just
obeying the law at the time) seems to
0.4 percent of all federal cases re
offer too great a loophole.
jected for trial, and for only 1 percent
More ideas are needed. As à curb
of overturned convictions. But the
to illegal or overzealous police behav-
new study suggests that the federal
for, the exclusionary rule has merit.
experience is not typical. In one L.A.
The challenge lies in preserving the
County office alone last year, the
protection it provides to all citizens,
rejection rate was 14.6 percent.
while giving the police a fighting
It'would be wrong to leap from the
chance.
study's statistics to the conclusion
excluing made
NOTE: Where it is feasible. a syllabus (headnote) will be released. as is
being done in connection with this case. at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been pre-
pared by the Reporter of Decisions for the convenience of the reader. See
United States V. Detroit Lumber Co.. 200 U. S. 321. 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
IMMIGRATION AND NATURALIZATION SERVICE is
LOPEZ-MENDOZA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
gued
April
16.
Decided
July
J.
1004
No. 83-491. Argued April 16, 1984-Decided July 5, 1984
were ordered deported by an imRespondent Mexican citizens were ordered deported by an Immigration
opez-Mendoza unsuccessfully objected Judgeg Respondent Lopez-Mendoza unsuccessfully objected to being
heating nonowing ms anegenly umasummoned to the deportation hearing following his allegedly unlawful ar-
rest by an Immigration and Naturalization Service (INS) agent, but he
did not object to the receipt in evidence of his admission, after the ar-
rest, of illegal entry into this country. Respondent Sandoval-Sanchez.
who also admitted his illegal entry after being arrested by an INS agent.
unsuccessfully objected to the evidence of his admission offered at the
deportation proceeding, contending that it should have been suppressed
as the fruit of an unlawful arrest. The Board of Immigration Appeals
(BIA) affirmed the deportation orders. The Court of Appeals reversed
respondent Sandoval-Sanchez' deportation order. holding that his deten-
tion by INS agents violated the Fourth Amendment. that his admission
of illegal entry was the product of this detention. and that the exclusion-
ary rule barred its use in a deportation proceeding. The court vacated
respondent Lopez-Mendoza's deportation order and remanded his case to
the BIA to determine whether the Fourth Amendment had been vio-
lated in the course of his arrest.
Held:
1. A deportation proceeding is a purely civil action to determine a per-
son's eligibility to remain in this country. The purpose of deportation is
not to punish past transgressions but rather to put an end to a continuing
violation of the immigration laws. Consistent with the civil nature of a
deportation proceeding. various protections that apply in the context of a
criminal trial do not apply in a deportation hearing. Pp. 5-6.
2. The "body" or identity of a defendant in a criminal or civil proceed-
ing is never itself suppressible as the fruit of an unlawful arrest. even if
I
II
INS L: LOPEZ-MENDOZA
Syllabus
it is conceded that an unlawful arrest, search. or interrogation occurred.
On this basis alone. the Court of Appeals' decision as to respondent Lo-
pez-Mendoza must be reversed. since he objected only to being sum-
moned to his deportation hearing after an allegedly unlawful arrest and
did not object to the evidence offered against him. The mere fact of an
illegal arrest has no bearing on a subsequent deportation hearing. Pp.
6-7.
3. The exclusionary rule does not apply in a deportation proceeding:
hence, the rule does not apply SO as to require that respondent Sandoval-
Sanchez' admission of illegal entry after his allegedly unlawful arrest be
excluded from evidence at his deportation hearing. Under the balanc-
ing test applied in United States V. Janis. 428 U. S. 433. whereby the
likely social benefits of excluding unlawfully obtained evidence are
weighed against the likely costs. the balance comes out against applying
the exclusionary rule in civil deportation proceedings. Several factors
significantly reduce the likely deterrent value of the rule in such pro-
ceedings. First. regardless of how the arrest of an illegal alien is
effected, deportation will still be possible when evidence not derived di-
rectly from the arrest is sufficient to support deportation. Second.
based on statistics indicating that over 97.7 percent of illegal aliens agree
to yoluntary deportation without a formal hearing, every INS agent
that any particular arrestee will end knows-that it is unlikely that any particular arrestee will end up chal-
of his arrest in a formal deportation inlenging the lawfulness of his arrest in a formal deportation hearing.
wn comprehensive scheme for deterring Third.lthe INS has its own comprehensive scheme for deterring Fourth
its agents. And finally. the deterrent Amendment violations by its agents. And finally. the deterrent value of
the exclusionary rule in deportation proceedings is undermined by the
availability of alternative remedies for INS practices that might violate
Fourth Amendment rights. As to the social costs of applying the exclu-
sionary rule in deportation proceedings. they would be high. In particu-
lar, the application of the rule in cases such as respondent Sandoval-San-
chez' would compel the courts to release from custody persons who
would then immediately resume their commission of a crime through
their continuing, unlawful presence in this country. and would unduly
complicate the INS's deliberately simple deportation hearing system.
Pp. 7-17.
705 F. 2d 1059, reversed.
O'CONNOR. J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, III, and IV, in which BUR-
GER. C.J., and BLACKMUN. POWELL. and REHNQUIST. JJ., joined. and an
opinion with respect to Part V. in which BLACKMUN, POWELL. and REHN-
QUIST. JJ., joined. BRENNAN, WHITE. MARSHALL. and STEVENS. JJ..
filed dissenting opinions.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions. Supreme Court of the United States. Wash-
ington. D. C. 20543. of any typographical or other formal errors. in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 83-491
IMMIGRATION AND NATURALIZATION SERVICE,
PETITIONER i: ADAN LOPEZ-MENDOZA ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 5. 1984]
[July 5, 1984]
OR delivered the opinion of the CJUSTICE O'CONNOR delivered the opinion of the Court.
mres ns in decide an Thisditigation requires us to decide whether an admission
of unlawful presence in this country made subsequent to an
allegedly unlawful arrest must be excluded as evidence in a
civil deportation hearing. We hold that the exclusionary
rule need not be applied in such a proceeding.
I
Respondents Adan Lopez-Mendoza and Elias Sandoval-
Sanchez, both citizens of Mexico, were summoned to separate
deportation proceedings in California and Washington, and
both were ordered deported. They challenged the regular-
ity of those proceedings on grounds related to the lawfulness
of their respective arrests by officials of the Immigration and
Naturalization Service (INS). On administrative appeal the
Board of Immigration Appeals (BIA), an agency of the De-
partment of Justice, affirmed the deportation orders.
The Court of Appeals for the Ninth Circuit, sitting en
banc. reversed Sandoval's deportation order and vacated and
remanded Lopez-Mendoza's deportation order. 705 F. 2d
1059 (1983). It ruled that Sandoval's admission of his illegal
presence in this country was the fruit of an unlawful arrest,
and that the exclusionary rule applied in a deportation pro-
*THE CHIEF JUSTICE joins all but Part V of this opinion.
83-491-OPINION
2
INS l'. LOPEZ-MENDOZA
ceeding. Lopez-Mendoza's deportation order was vacated
and his case remanded to the BIA to determine whether the
Fourth Amendment had been violated in the course of his ar-
rest. We granted certiorari, 464 U. S. 1984.
A
Respondent Lopez-Mendoza was arrested in 1976 by INS
agents at his place of employment, a transmission repair shop
in San Mateo, Cal. Responding to a tip, INS investigators
arrived at the shop shortly before 8 a. m. The agents had
not sought a warrant to search the premises or to arrest any
of its occupants. The proprietor of the shop firmly refused
to allow the agents to interview his employees during work-
ing hours. Nevertheless, while one agent engaged the pro-
prietor in conversation another entered the shop and ap-
proached Lopez-Mendoza. In response to the agent's
questioning, Lopez-Mendoza gave his name and indicated
with
no
close
family
that the was from Mexico with no close family ties in the
agent then placed him under United States. The agent then placed him under arrest.
rwent
further
questioning
Lopez-Mendoza underwent further questioning at INS of-
fices, where he admitted he was born in Mexico, was still a
citizen of Mexico, and had entered this country without in-
spection by immigration authorities. Based on his answers,
the agents prepared a "Record of Deportable Alien" (Form
I-213), and an affidavit which Lopez-Mendoza executed, ad-
mitting his Mexican nationality and his illegal entry into this
country.
A hearing was held before an Immigration Judge. Lopez-
Mendoza's counsel moved to terminate the proceeding on the
ground that Lopez-Mendoza had been arrested illegally.
The judge ruled that the legality of the arrest was not rele-
vant to the deportation proceeding and therefore declined to
rule on the legality of Lopez-Mendoza's arrest. Matter of
Lopez-Mendoza, No. A22 452 208 (INS, Dec. 21, 1977), re-
printed in App. Pet. for Cert. 97a. The Form I-213 and the
affidavit executed by Lopez-Mendoza were received into evi-
83-491-OPINION
INS v. LOPEZ-MENDOZA
3
dence without objection from Lopez-Mendoza. On the basis
of this evidence the Immigration Judge found Lopez-
Mendoza deportable. Lopez-Mendoza was granted the op-
tion of voluntary departure.
The BIA dismissed Lopez-Mendoza's appeal. It noted
that "[t]he mere fact of an illegal arrest has no bearing on a
subsequent deportation proceeding," In re Lopez-Mendoza,
No. A22 452 208 (BIA, Sept. 19, 1979), reprinted in App. Pet.
for Cert. 100a, 102a, and observed that Lopez-Mendoza had
not objected to the admission into evidence of Form I-213
and the affidavit he had executed. Id., at 103a. The BIA
also noted that the exclusionary rule is not applied to redress
the injury to the privacy of the search victim, and that the
BIA had previously concluded that application of the rule in
deportation proceedings to deter unlawful INS conduct was
inappropriate. Matter of Sandoval, 17 I. & N. Dec. 70 (BIA
1979).
als vacated the order of deportatioThe Court of Appeals vacated the order of deportation and
ermination whether Lopez-Memanded for a determination whether Lopez-Mendoza's
rights had been violated when Feurth Amendment rights had been violated when he was
arrested.
B
Respondent Sandoval-Sanchez (who is not the same indi-
vidual who was involved in Matter of Sandoval, supra) was
arrested in 1977 at his place of employment, a potato process-
ing plant in Pasco, Wash. INS Agent Bower and other offi-
cers went to the plant, with the permission of its personnel
manager, to check for illegal aliens. During a change in
shift-officers stationed themselves at the exits while Bower
and a uniformed Border Patrol agent entered the plant.
They went to the lunchroom and identified themselves as
immigration officers. Many people in the room rose and
headed for the exits or milled around; others in the plant left
their equipment and started running; still others who were
entering the plant turned around and started walking back
out. The two officers eventually stationed themselves at the
83-491-OPINION
4
INS 2: LOPEZ-MENDOZA
main entrance to the plant and looked for passing employees
who averted their heads, avoided eye contact, or tried to hide
themselves in a group. Those individuals were addressed
with innocuous questions in English. Any who could not re-
spond in English and who otherwise aroused Agent Bower's
suspicions were questioned in Spanish as to their right to be
in the United States.
Respondent Sandoval-Sanchez was in a line of workers en-
tering the plant. Sandoval-Sanchez testified that he did not
realize that immigration officers were checking people enter-
ing the plant, but that he did see standing at the plant en-
trance a man in uniform who appeared to be a police officer.
Agent Bower testified that it was probable that he, not his
partner, had questioned Sandoval-Sanchez at the plant, but
that he could not be absolutely positive. The employee he
thought he remembered as Sandoval-Sanchez had been "very
evasive," had averted his head, turned around, and walked
Agent Bower. App. 137. 138. awayawhen he saw Agent Bower. App. 137, 138. Bower
me was questioned about his stawas certain that no one was questioned about his status un-
ven the agents reason to helie eless hisactions had given the agents reason to believe that he
was an undocumented alien.
Thirty-seven employees, including Sandoval-Sanchez,
were briefly detained at the plant and then taken to the
county jail. About one-third immediately availed them-
selves of the option of voluntary departure and were put on a
bus to Mexico. Sandoval-Sanchez exercised his right to a
deportation hearing. Sandoval-Sanchez was then ques-
tioned further, and Agent Bower recorded Sandoval-
Sanchez's admission of unlawful entry. Sandoval contends
he was not aware that he had a right to remain silent.
At his deportation hearing Sandoval-Sanchez contended
that the evidence offered by the INS should be suppressed as
the fruit of an unlawful arrest. The Immigration Judge con-
sidered and rejected Sandoval-Sanchez's claim that he had
been illegally arrested, but ruled in the alternative that the
legality of the arrest was not relevant to the deportation
83-491-OPINION
INS L'. LOPEZ-MENDOZA
5
hearing. Matter of Sandoval-Sanchez, No. A22 346 925
(INS, Oct. 7, 1977), reprinted in App. Pet. for Cert. at 104a.
Based on the written record of Sandoval-Sanchez's admis-
sions the Immigration Judge found him deportable and
granted him voluntary departure. The BIA dismissed San-
doval-Sanchez's appeal. In re Sandoval-Sanchez, No. A22
346 925 (BIA, Feb. 21, 1980). It concluded that the circum-
stances of the arrest had not affected the voluntariness of his
recorded admission, and again declined to invoke the exclu-
sionary rule, relying on its earlier decision in Matter of
Sandoval, supra.
On appeal the Court of Appeals concluded that Sandoval-
Sanchez's detention by the immigration officers violated the
Fourth Amendment, that the statements he made were a
product of that detention, and that the exclusionary rule
barred their use in a deportation hearing. The deportation
Sanchez
against Sandoval-Sanchez was accordingly reversed.
II
II
eeding is a purely civil action to adeportation proceeding is a purely civil action to deter-
mine eligibility to remain in this country, not to punish an un-
lawful entry, though entering or remaining unlawfully in this
country is itself a crime. 8 U. S. C. §§ 1302, 1306, 1325.
The deportation hearing looks prospectively, to the respond-
ent's right to remain in this country in the future. Past con-
duct is relevant only insofar as it may shed light on the re-
spondent's right to remain. See 8 U. S. C. §§ 1251, 1252(b);
Bugajewitz V. Adams, 228 U.S. 585, 591 (1913); Fong Yue
Ting V. United States, 149 U. S. 698, 730 (1893).
A deportation hearing is held before an immigration judge.
The judge's sole power is to order deportation; the judge can-
not adjudicate guilt or punish the respondent for any crime
related to unlawful entry into or presence in this country.
Consistent with the civil nature of the proceeding, various
protections that apply in the context of a criminal trial do not
apply in a deportation hearing. The respondent must be
83-491-OPINION
6
INS 2: LOPEZ-MENDOZA
given "a reasonable opportunity to be present at [the] pro-
ceeding," but if the respondent fails to avail himself of that
opportunity the hearing may proceed in his absence. 8
U. S. C. § 1252(b). In many deportation cases the INS must
show only identity and alienage; the burden then shifts to the
respondent to prove the time, place, and manner of his entry.
See 8 U. S. C. § 1361; Matter of Sandoval, supra. A deci-
sion of deportability need be based only on "reasonable, sub-
stantial, and probative evidence," 8 U. S. C. § 1252(b)(4).
The BIA for its part has required only "clear, unequivocal
and convincing" evidence of the respondent's deportability,
not proof beyond a reasonable doubt. 8 CFR § 242.14(a)
(1984). The Courts of Appeals have held, for example that
the absence of Miranda warnings does not render an other-
wise voluntary statement by the respondent inadmissible in a
deportation case. Navia-Duran V. INS, 568 F. 2d 803, 808
(CA1.1977); Avila-Gallegos V. INS, 525 F. 2d 666, 667 (CA2
V. INS. 519 F. 2d 397. 399-101975)aCharez-Raya V. INS, 519 F. 2d 397, 399-401 (CA7
bel V. United States. 362 U. 1975). See also Abel V. United States, 362 U.S. 217,
h permitted incidental to an +236-237 (1960) (search permitted incidental to an arrest pur-
rative warrant issued by the INSuant to an administrative warrant issued by the INS); Gal-
van V. Press, 347 U. S. 522, 531 (1954) (Ex Post Facto Clause
has no application to deportation); Carlson V. Landon, 342
U.S. 524, 544-546 (1952) (Eighth Amendment does not re-
quire bail to be granted in certain deportation cases); United
States ex rel. Bilokumsky V. Tod, 263 U. S. 149, 157 (1923)
(involuntary confessions admissible at deportation hearing).
In short, a deportation hearing is intended to provide a
streamlined determination of eligibility to remain in this
country, nothing more. The purpose of deportation is not to
punish past transgressions but rather to put an end to a con-
tinuing violation of the immigration laws.
III
The "body" or identity of a defendant or respondent in a
criminal or civil proceeding is never itself suppressible as a
83-491-OPINION
INS i. LOPEZ-MENDOZA
7
fruit of an unlawful arrest, even if it is conceded that an un-
lawful arrest, search, or interrogation occurred. See Ger-
stein V. Pugh, 420 U. S. 103, 119 (1975); Frisbie V. Collins,
342 U. S. 519, 522 (1952); United States ex rel. Bilokumsky
V. Tod, supra, at 158. A similar rule applies in forfeiture
proceedings directed against contraband or forfeitable prop-
erty. See, e. g., United States V. Eighty-Eight Thousand,
Five Hundred Dollars, 671 F. 2d 293 (CA8 1982); United
States V. One (1) 1971 Harley-Davidson Motorcycle, 508 F.
2d 351 (CA9 1974); United States V. One 1965 Buick, 397 F.
2d 782 (CA6 1968).
On this basis alone the Court of Appeals' decision as to re-
spondent Lopez must be reversed. At his deportation hear-
ing Lopez objected only to the fact that he had been sum-
moned to a deportation hearing following an unlawful arrest;
he entered no objection to the evidence offered against him.
The BIA correctly ruled that "[t]he mere fact of an illegal ar-
on a subsequent deportation prest- has no bearing on a subsequent deportation proceed-
Mendoza. supra, reprinted in ing. "for In re Lopez-Mendoza, supra, reprinted in Pet. for
Cert. 102a.
IV
IV
Respondent Sandoval has a more substantial claim. He
objected not to his compelled presence at a deportation pro-
ceeding, but to evidence offered at that proceeding. The
general rule in a criminal proceeding is that statements and
other evidence obtained as a result of an unlawful, warrant-
¹The Court of Appeals brushed over Lopez's failure to object to the evi-
dence in an apparently unsettled footnote of its decision. The Court of Ap-
peals was initially of the view that a motion to terminate a proceeding on
the ground that the arrest of the respondent was unlawful is, "for all prac-
tical purposes," the same as a motion to suppress evidence as the fruit of an
unlawful arrest. Slip opinion. at 1765, n. 1 (Apr. 25, 1983). In the bound
report of its opinion. however, the Court of Appeals takes a somewhat dif-
ferent view, stating in a revised version of the same footnote that "the only
reasonable way to interpret the motion to terminate is as one that includes
both a motion to suppress and a motion to dismiss." 705 F. 2d 1059. 1060,
n. 1 (1983).
83-491-OPINION
8
INS t. LOPEZ-MENDOZA
less arrest are suppressible if the link between the evidence
and the unlawful conduct is not too attenuated. Wong Sun
V. United States, 371 U. S. 471 (1963). The reach of the ex-
clusionary rule beyond the context of a criminal prosecution,
however, is less clear. Although this Court has once stated
in dictum that "[i]t may be assumed that evidence obtained
by the [Labor] Department through an illegal search and sei-
zure cannot be made the basis of a finding in deportation pro-
ceedings," United States ex rel. Bilokumsky V. Tod, supra,
at 155, the Court has never squarely addressed the question
before. Lower court decisions dealing with this question are
sparse.2
In United States V. Janis, 428 U. S. 433 (1976), this Court
set forth a framework for deciding in what types of proceed-
ing application of the exclusionary rule is appropriate. Im-
precise as the exercise may be, the Court recognized in Janis
that there is no choice but to weigh the likely social benefits
illy spized evidence against thef excluding unlawfully seized evidence against the likely
fit side of the balance procosts. On the benefit side of the balance "the 'prime pur-
hary] rule. if not the sole one to pose of the [exclusionary] rule, if not the sole one, 'is to deter
51
future unlawful police conduct." Id., at 446, citing United
States V. Calandra, 414 U. S. 338, 347 (1974). On the cost
side there is the loss of often probative evidence and all of the
secondary costs that flow from the less accurate or more cum-
bersome adjudication that therefore occurs.
At stake in Janis was application of the exclusionary rule
in a federal civil tax assessment proceeding following the un-
lawful seizure of evidence by state, not federal, officials.
In United States V. Wong Quong Wong. 94 F. 832 (Vt. 1899). a district
judge excluded letters seized from the appellant in a civil deportation pro-
ceeding. In Ex parte Jackson, 263 F. 110 (Mont.), appeal dism'd sub nom.
Andrews v. Jackson, 267 F. 1022 (CA9 1920), another district judge
granted habeas corpus relief on the ground that papers and pamphlets used
against the habeas petitioner in a deportation proceeding had been unlaw-
fully seized. Wong Chung Che V. INS. 565 F. 2d 166 (CA1 1977). held that
papers obtained by INS agents in an unlawful search are inadmissible in
deportation proceedings.
83-491-OPINION
INS is LOPEZ-MENDOZA
9
The Court noted at the outset that "[i]n the complex and tur-
bulent history of the rule, the Court never has applied it to
exclude evidence from a civil proceeding, federal or state."
428 U.S., at 447 (footnote omitted). Two factors in Janis
suggested that the deterrence value of the exclusionary rule
in the context of that case was slight. First, the state law
enforcement officials were already "punished" by the exclu-
sion of the evidence in the state criminal trial as a result of
the same conduct. Id., at 448. Second, the evidence was
also excludable in any federal criminal trial that might be
held. Both factors suggested that further application of the
exclusionary rule in the federal civil proceeding would con-
tribute little more to the deterrence of unlawful conduct by
state officials. On the cost side of the balance, Janis focused
simply on the loss of "concededly relevant and reliable evi-
dence." Id., at 447. The Court concluded that, on balance,
the
IRCIV
social
aerthis cost outweighed the likely social benefits achievable
of the exclusionary rule in thethrough application of the exclusionary rule in the federal
civil proceeding.
ely that the deterrence value of While it seems likely that the deterrence value of applying
in deportation proceedings the exelusionary rule in deportation proceedings would be
higher than it was in Janis, it is also quite clear that the so-
cial costs would be very much greater as well. Applying the
Janis balancing test to the benefits and costs of excluding
concededly reliable evidence from a deportation proceeding,
we therefore reach the same conclusion as in Janis.
The likely deterrence value of the exclusionary rule in de-
portation proceedings is difficult to assess. On the one hand,
a civil deportation proceeding is a civil complement to a possi-
ble criminal prosecution, and to this extent it resembles the
civil proceeding under review in Janis. The INS does not
suggest that the exclusionary rule should not continue to
apply in criminal proceedings against an alien who unlawfully
enters or remains in this country. and the prospect of losing
evidence that might otherwise be used in a criminal prosecu-
tion undoubtedly supplies some residual deterrent to unlaw-
83-491-OPINION
10
INS v. LOPEZ-MENDOZA
ful conduct by INS officials. But it must be acknowledged
that only a very small percentage of arrests of aliens are in-
tended or expected to lead to criminal prosecutions. Thus
the arresting officer's primary objective, in practice, will be
to use evidence in the civil deportation proceeding. More-
over, here, in contrast to Janis, the agency officials who
effect the unlawful arrest are the same officials who sub-
sequently bring the deportation action. As recognized in
Janis, the exclusionary rule is likely to be most effective
when applied to such "intrasovereign" violations.
Nonetheless, several other factors significantly reduce the
likely deterrent value of the exclusionary rule in a civil de-
portation proceeding. First, regardless of how the arrest is
effected, deportation will still be possible when evidence not
derived directly from the arrest is sufficient to support de-
portation. As the BIA has recognized, in many deportation
101
proceedings "the sole matters necessary for the Government
espondent's lidentity and aliento establish are the respondent's identity and alienage-at
n shifts to the respondent to plwhich point the burden shifts to the respondent to prove the
er of entry.' Matter of Sondtime, place and manner of entry." Matter of Sandoval, 17
Since The person and identive & N. Dec., at 79. Since the person and identity of the re-
spondent are not themselves suppressible, see supra, at 6-7,
the INS must prove only alienage, and that will sometimes be
possible using evidence gathered independently of, or suffi-
ciently attenuated from, the original arrest. See Matter of
Sandoval, supra, at 79; see, e. g., Avila-Gallegos V. INS,
525 F. 2d 666 (CA2 1975). The INS's task is simplified in
this regard by the civil nature of the proceeding. As Justice
Brandeis stated: "Silence is often evidence of the most per-
suasive character
[T]here is no rule of law which prohib-
its officers charged with the administration of the immigra-
tion law from drawing an inference from the silence of one
who is called upon to speak.
A person arrested on the
preliminary warrant is not protected by a presumption of citi-
zenship comparable to the presumption of innocence in a
criminal case. There is no provision which forbids drawing
83-491-OPINION
INS 2: LOPEZ-MENDOZA
11
an adverse inference from the fact of standing mute."
United States ex rel. Bilokumsky V. Tod, 263 U.S., at
153-154.
The second factor is a practical one. In the course of a
year the average INS agent arrests almost 500 illegal aliens.
Brief for Petitioner 38. Over 97.5% apparently agree to vol-
untary deportation without a formal hearing. 705 F. 2d, at
1071, n. 17. Among the remainder who do request a formal
hearing (apparently a dozen or so in all, per officer, per year)
very few challenge the circumstances of their arrests. As
noted by the Court of Appeals, "the BIA was able to find only
two reported immigration cases since 1899 in which the [ex-
clusionary] rule was applied to bar unlawfully seized evi-
dence, only one other case in which the rule's application was
specifically addressed, and fewer than fifty BIA proceedings
since 1952 in which a Fourth Amendment challenge to the in-
was
raised
in
atr duction of evidence was even raised." Id., at 1071.
ows. therefore that it is highly Every JNS agent knows, therefore, that it is highly unlikely
rrestee will end up challenging that any particular arrestee will end up challenging the law-
in 2 formal deportation fulness of his arrest in a formal deportation proceeding.
challenge
is
brought
the
When an occasional challenge is brought, the consequences
from the point of view of the officer's overall arrest and de-
portation record will be trivial. In these circumstances, the
arresting officer is most unlikely to shape his conduct in
anticipation of the exclusion of evidence at a formal deporta-
tion hearing.
Third, and perhaps most important, the INS has its own
comprehensive scheme for deterring Fourth Amendment vi-
olations by its officers. Most arrests of illegal aliens away
from the border occur during farm, factory, or other work-
place surveys. Large numbers of illegal aliens are often ar-
rested at one time, and conditions are understandably cha-
otic. See Brief for Petitioner in INS V. Delgado, O. T. 1983,
No. 82-1271, pp. 3-5. To safeguard the rights of those who
are lawfully present at inspected workplaces the INS has de-
veloped rules restricting stop, interrogation, and arrest prac-
83-491-OPINION
12
INS v. LOPEZ-MENDOZA
tices. Id., at 7, n. 7, 32-40, and n. 25. These regulations
require that no one be detained without reasonable suspicion
of illegal alienage, and that no one be arrested unless there is
an admission of illegal alienage or other strong evidence
thereof. New immigration officers receive instruction and
examination in Fourth Amendment law, and others receive
periodic refresher courses in law. Brief for Petitioner 39-40.
Evidence seized through intentionally unlawful conduct is ex-
cluded by Department of Justice policy from the proceeding
for which it was obtained. See Memorandum from Benjamin
R. Civiletti to Heads of Offices, Boards, Bureaus and Divi-
sions, Violations of Search and Seizure Law (Jan. 16, 1981).
The INS also has in place a procedure for investigating and
punishing immigration officers who commit Fourth Amend-
ment violations. See Office of General Counsel, INS, U. S.
Dept. of Justice, The Law of Arrest, Search, and Seizure for
Cian
19831
Immigration Officers 35 (Jan. 1983). The INS's attention to
iterests cannot guarantee that Fourth-Amendment interests cannot guarantee that constitu-
not occur. but it does reduce titional violations will not occur, but it does reduce the likely
exclusionary mile Deterrendeterrent value of the exclusionary rule. Deterrence must
arain
be measured at the margin.
Finally, the deterrent value of the exclusionary rule in de-
portation proceedings is undermined by the availability of al-
ternative remedies for institutional practices by the INS that
might violate Fourth Amendment rights. The INS is a sin-
gle agency, under central federal control, and engaged in op-
erations of broad scope but highly repetitive character. The
possibility of declaratory relief against the agency thus offers
a means for challenging the validity of INS practices, when
standing requirements for bringing such an action can be
met. Cf. INS V. Delgado, 466 U. S. (1984).
Respondents that retention of the exclusionary rule is nec-
essary to safeguard the Fourth Amendment rights of ethnic
Americans, particularly the Hispanic-Americans lawfully in
this country. We recognize that respondents raise here le-
gitimate and important concerns. But application of the ex-
83-491-OPINION
INS 1: LOPEZ-MENDOZA
13
clusionary rule to civil deportation proceedings can be justi-
fied only if the rule is likely to add significant protection to
these Fourth Amendment rights. The exclusionary rule
provides no remedy for completed wrongs; those lawfully in
this country can be interested in its application only insofar
as it may serve as an effective deterrent to future INS mis-
conduct. For the reasons we have discussed we conclude
that application of the rule in INS civil deportation proceed-
ings, as in the circumstances discussed in Janis, "is unlikely
to provide significant, much less substantial, additional de-
terrence." 428 U.S., at 458. Important as it is to protect
the Fourth Amendment rights of all persons, there is no con-
vincing indication that application of the exclusionary rule in
civil deportation proceedings will contribute materially to
that end.
On the other side of the scale, the social costs of applying
deportation
proceedings
are
the.exclusionary rule in deportation proceedings are both un-
The first cost is one that is unisual and significant. The first cost is one that is unique to
of the law. Applying the exclucontinuing violations of the law. Applying the exclusionary
that are intended not to punirule proceedings that are intended not to punish past
Their continuance or transgressions but to prevent their continuance or renewal
would require the courts to close their eyes to ongoing viola-
tions of the law. This Court has never before accepted costs
of this character in applying the exclusionary rule.
Presumably no one would argue that the exclusionary rule
should be invoked to prevent an agency from ordering correc-
tive action at a leaking hazardous waste dump if the evidence
underlying the order had been improperly obtained, or to
compel police to return contraband explosives or drugs to
their owner if the contraband had been unlawfully seized.
On the rare occasions that it has considered costs of this type
the Court has firmly indicated that the exclusionary rule does
not extend this far. See United States V. Jeffers, 342 U.S.
48, 54 (1951); Trupiano V. United States, 334 U. S. 699, 710
(1948). The rationale for these holdings is not difficult to
find. "Both Trupiano and Jeffers concerned objects the pos-
83-491-OPINION
14
INS v. LOPEZ-MENDOZA
session of which, without more, constitutes a crime. The re-
possession of such per se contraband by Jeffers and Trupiano
would have subjected them to criminal penalties. The re-
turn of the contraband would clearly have frustrated the ex-
press public policy against the possession of such objects."
One 1958 Plymouth Sedan V. Pennsylvania, 380 U. S. 693,
699 (1965) (footnote omitted). Precisely the same can be
said here. Sandoval is a person whose unregistered pres-
ence in this country, without more, constitutes a crime.³
His release within our borders would immediately subject
him to criminal penalties. His release would clearly frus-
trate the express public policy against an alien's unregistered
presence in this country. Even the objective of deterring
Fourth Amendment violations should not require such a re-
sult. The constable's blunder may allow the criminal to go
free, but we have never suggested that it allows the criminal
(11
to continue in the commission of an ongoing crime. When
involves unlawful presence in ththe crime in question involves unlawful presence in this coun-
go free, but he should not try, fthe criminal may go free, but he should not go free
within our borders.
3Sandoval was arrested on June 23. 1977. His deportation hearing was
held on October 7, 1977. By that time he was under a duty to apply for
registration as an alien. A failure to do so plainly constituted a continuing
crime. 8 U. S. C. §§ 1302, 1306. Sandoval was not, of course, prosecuted
for this crime, and we do not know whether or not he did make the re-
quired application. But it is safe to assume that the exclusionary rule
would never be at issue in a deportation proceeding brought against an
alien who entered the country unlawfully and then voluntarily admitted to
his unlawful presence in an application for registration.
Sandoval was also not prosecuted for his initial illegal entry into this
country, an independent crime under 8 U. S. C. § 1325. We need not de-
cide whether or not remaining in this country following an illegal entry is a
continuing or a completed crime under § 1325. The question is academic,
of course, since in either event the unlawful entry remains both punishable
and continuing grounds for deportation. See 8 U. S. C. § 1251(a)(2).
"Similarly, in Sure-Tan, Inc. V. NLRB,
U.S.
(1984), the
Court concluded that an employer can be guilty of an unfair labor practice
in his dealings with an alien notwithstanding the alien's illegal presence in
83-491-OPINION
INS v. LOPEZ-MENDOZA
15
Other factors also weigh against applying the exclusionary
rule in deportation proceedings. The INS currently oper-
ates a deliberately simple deportation hearing system,
streamlined to permit the quick resolution of very large num-
bers of deportation actions, and it is against this backdrop
that the costs of the exclusionary must be assessed. The
costs of applying the exclusionary rule, like the benefits,
must be measured at the margin.
The average immigration judge handles about six deporta-
tion hearings per day. Brief for Petitioner 27, n. 16. Nei-
ther the hearing officers nor the attorneys participating in
those hearings are likely to be well versed in the intricacies of
Fourth Amendment law. The prospect of even occasional in-
vocation of the exclusionary rule might significantly change
and complicate the character of these proceedings. The BIA
has described the practical problems as follows:
licability 01 the exclusionary rule, queAbsent the applicability of the exclusionary rule, ques-
deportability routinely involve sintions relating to deportability routinely involve simple
as and of proof When infactual allegations and matters of proof. When Fourth
are roison at deportation hearinAmendment issues are raised at deportation hearings,
the result is a diversion of attention from the main issues
which those proceedings were created to resolve, both in
terms of the expertise of the administrative decision
makers and of the structure of the forum to accommo-
date inquiries into search and seizure questions. The
result frequently seems to be a long, confused record in
which the issues are not clearly defined and in which
there is voluminous testimony
The ensuing de-
lays and inordinate amount of time spent on such cases at
all levels has an adverse impact on the effective adminis-
this country. Retrospective sanctions against the employer may accord-
ingly be imposed by the NLRB to further the public policy against unfair
labor practices. But while he maintains the status of an illegal alien, the
employee is plainly not entitled to the prospective relief-reinstatement
and continued employment-that probably would be granted to other vic-
tims of similar unfair labor practices.
83-491-OPINION
16
INS 2: LOPEZ-MENDOZA
tration of the immigration laws
This is particu-
larly true in a proceeding where delay may be the only
'defense' available and where problems already exist
with the use of dilatory tactics." Matter of Sandoval, 17
I. & N., at 80 (footnote omitted).
This sober assessment of the exclusionary rule's likely costs,
by the agency that would have to administer the rule in at
least the administrative tiers of its application, cannot be
brushed off lightly.
The BIA's concerns are reinforced by the staggering di-
mension of the problem that the INS confronts. Immigra-
tion officers apprehend over one million deportable aliens in
this country every year. Id., at 85. A single agent may ar-
rest many illegal aliens every day. Although the investiga-
tory burden does not justify the commission of constitutional
violations, the officers cannot be expected to compile elabo-
in
written reports detailing the rate, contemporaneous, written reports detailing the circum-
est. At present an officer simistances of every arrest. At present an officer simply com-
Deportable Alien" that IS pletes-a "Record of Deportable Alien" that is introduced to
at the deportation hearing prove the INS's case at the deportation hearing; the officer
rarely must attend the hearing. Fourth Amendment sup-
pression hearings would undoubtedly require considerably
more, and the likely burden on the administration of the im-
migration laws would be correspondingly severe.
Finally, the INS advances the credible argument that ap-
plying the exclusionary rule to deportation proceedings
might well result in the suppression of large amounts of in-
formation that had been obtained entirely lawfully. INS ar-
rests occur in crowded and confused circumstances. Though
the INS agents are instructed to follow procedures that ade-
quately protect Fourth Amendment interests, agents will
usually be able to testify only to the fact that they followed
INS rules. The demand for a precise account of exactly
what happened in each particular arrest would plainly pre-
clude mass arrests, even when the INS is confronted. as it
often is, with massed numbers of ascertainably illegal aliens,
83-491-OPINION
INS v. LOPEZ-MENDOZA
17
and even when the arrests can be and are conducted in full
compliance with all Fourth Amendment requirements.
In these circumstances we are persuaded that the Janis
balance between costs and benefits comes out against apply-
ing the exclusionary rule in civil deportation hearings held by
the INS. By all appearances the INS has already taken sen-
sible and reasonable steps to deter Fourth Amendment viola-
tions by its officers, and this makes the likely additional de-
terrent value of the exclusionary rule small. The costs of
applying the exclusionary rule in the context of civil deporta-
tion hearings are high. In particular, application of the ex-
clusionary rule in cases such as Sandoval's, would compel the
courts to release from custody persons who would then im-
mediately resume their commission of a crime through their
continuing, unlawful presence in this country. "There comes
a point at which courts, consistent with their duty to adminis-
ntinue to create barriers to law terthelaw, cannot continue to create barriers to law enforce-
of a supervisory role that is pment in the pursuit of a supervisory role that is properly
xecutive and Legislative Brathereduty of the Executive and Legislative Branches."
is. 428 U. S.. at 459. That pdintited States V. Janis, 428 U.S., at 459. That point has
been reached here.
V
We do not condone any violations of the Fourth Amend-
ment that may have occurred in the arrests of respondents
Lopez or Sandoval. Moreover, no challenge is raised here to
the INS's own internal regulations. Cf. INS V. Delgado,
U.S.
(1984). Our conclusions concerning the ex-
clusionary rule's value might change, if there developed good
reason to believe that Fourth Amendment violations by INS
officers were widespread. Cf. United States V. Leon,
U.S.
(BLACKMUN, J., concurring). Finally, we do not
deal here with egregious violations of Fourth Amendment or
other liberties that might transgress notions of fundamental
fairness and undermine the probative value of the evidence
83-491-OPINION
18
INS 2: LOPEZ-MENDOZA
obtained. Cf. Rochin V. California, 342 U.S. 165 (1952).
At issue here is the exclusion of credible evidence gathered in
connection with peaceful arrests by INS officers. We hold
that evidence derived from such arrests need not be up-
pressed in an INS civil deportation hearing.
The judgment of the Court of Appeals is therefore
Reversed.
5We note that subsequent to its decision in Matter of Sandoval. 17
I. & N. Dec. 70 (1979). the BIA held that evidence will be excluded if the
circumstances surrounding a particular arrest and interrogation would ren-
der use of the evidence obtained thereby "fundamentally unfair" and in vi-
olation of due process requirements of the fifth amendment. Matter of
Toro. 17 I. &. N. Dec. 340. 343 (BIA 1980). See also Matter of Garcia, 17
I. & N. Dec. 319. 321 (BIA 1980) (suppression of admission of alienage ob-
tained after request for counsel had been repeatedly refused): Matter of
Ramira-Cordova, No. A21 095 659 (BIA Feb. 21. 1980) (suppression of ev-
idence obtained as a result of a night-time warrantless entry into the aliens'
residence).
SUPREME COURT OF THE UNITED STATES
No. 83-491
IMMIGRATION AND NATURALIZATION SERVICE,
PETITIONER v. ADAN LOPEZ-MENDOZA ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 5, 1984]
JUSTICE BRENNAN, dissenting.
I fully agree with JUSTICE WHITE that under the analysis
urt in such cases as United Sideveloped by the Court in such cases as United States V.
(1976), and United States V. CalJanis, 428 U. S. 433 (1976), and United States V. Calandra,
he exclusionary rule must apply 414 U S. 338 (1974), the exclusionary rule must apply in civil
MRS. However, for the reasodeportation proceedings. However, for the reasons set
forth today in my dissenting opinion in United States V. Leon,
ante, at
I
I believe the basis for the exclusionary rule
,
does not derive from its effectiveness as a deterrent, but is
instead found in the requirements of the Fourth Amendment
itself. My view of the exclusionary rule would, of course, re-
quire affirmance of the Court of Appeals. In this case, fed-
eral law enforcement officers arrested respondents Sandoval-
Sanchez and Lopez-Mendoza in violation of their Fourth
Amendment rights. The subsequent admission of any evi-
dence secured pursuant to these unlawful arrests in civil de-
portation proceedings would, in my view, also infringe those
rights. The Government of the United States bears an ob-
ligation to obey the Fourth Amendment; that obligation is
not lifted simply because the law enforcement officers were
agents of the Immigration and Naturalization Service, nor
because the evidence obtained by those officers was to be
used in civil deportation proceedings.
SUPREME COURT OF THE UNITED STATES
No. 83-491
IMMIGRATION AND NATURALIZATION SERVICE,
PETITIONER ¿: ADAN LOPEZ-MENDOZA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 5, 1984]
dissenting
JUSTICE WHITE, dissenting.
holds that the exclusionary rule doeThe Court today holds that the exclusionary rule does not
rtation proceedings Because I apply in civil deportation proceedings. Because I believe
of the upon on that the conclusion of the majority is based upon an incorrect
assessment of the costs and benefits of applying the rule in
such proceedings, I respectfully dissent.¹
The paradigmatic case in which the exclusionary rule is ap-
plied is when the prosecutor seeks to use evidence illegally
obtained by law enforcement officials in his case-in-chief in a
criminal trial. In other classes of cases, the rule is applicable
only when the likelihood of deterring the unwanted conduct
outweighs the societal costs imposed by exclusion of relevant
evidence. United States V. Janis, 428 U. S. 433, 454 (1976).
Thus, the Court has, in a number of situations, refused to ex-
tend the exclusionary rule to proceedings other than the
criminal trial itself. For example, in Stone V. Powell, 428
U. S. 465 (1976), the Court held that the deterrent effect of
: I also question the Court's finding that Lopez failed to object to admis-
sion of the evidence. Ante. at T and n. 1. The Court of Appeals held that
he had made a proper objection. Lopez-Mendoza v. INS. 705 F. 2d 1059,
1060. n. 1. (CA9 1983). and the Government did not seek review of that
conclusion. Brief for Petitioner 8. n. 8. Moreover. the fact that changes in
an opinion are made between the time of the slip opinion and the bound
volume has never before been considered evidence that the holding of
case is "unsettled." See ante. at T. n. 1.
83-491-DISSENT
2
INS l: LOPEZ-MENDOZA
the rule would not be reduced by refusing to allow a state
prisoner to litigate a Fourth Amendment claim in federal ha-
beas corpus proceedings if he was afforded a full and fair
opportunity to litigate it in state court. Similarly, in United
States V. Calandra, 414 U. S. 338, 351 (1974), we concluded
that "[a]ny incremental deterrent effect which might be
achieved by extending the rule to grand jury proceedings is
uncertain at best." And in United States V. Janis, supra,
we declined to extend the exclusionary rule to bar the intro-
duction in a federal civil proceeding of evidence unconstitu-
tionally seized by a state law enforcement officer. In all of
these cases it was unquestioned that the illegally seized evi-
dence would not be admissible in the case-in-chief of the pro-
ceeding for which the evidence was gathered; only its collat-
eral use was permitted.
Civil deportation proceedings are in no sense "collateral."
the
The majority correctly acknowledges that the "primary ob-
gent is "to use evidence in the jective" of the INS agent is "to use evidence in the civil de-
and that "the agency officials portation proceeding" and that "the agency officials who ef-
arrest are the same officisfect the unlawful arrest are the same officials who
subsequently bring the deportation action." Ante, at 9-10.
The Government likewise concedes that INS agents are "in
the business of conducting searches for and seizures of illegal
aliens for the purpose of bringing about their deportation."
Brief for Petitioner 37. Thus, unlike the situation in Janis,
the conduct challenged here falls within "the offending offi-
cer's zone of primary interest." 428 U. S., at 458. The ma-
jority nonetheless concludes that application of the rule in
such proceedings is unlikely to provide significant deter-
rence. Because INS agents are law enforcement officials
whose mission is closely analogous to that of police officers
and because civil deportation proceedings are to INS agents
what criminal trials are to police officers, I cannot agree with
that assessment.
The exclusionary rule rests on the Court's belief that exclu-
sion has a sufficient deterrent effect to justify its imposition,
83-491-DISSENT
INS L: LOPEZ-MENDOZA
3
and the Court has not abandoned the rule. As long as that is
the case, there is no principled basis for distinguishing be-
tween the deterrent effect of the rule in criminal cases and in
civil deportation proceedings. The majority attempts to jus-
tify the distinction by asserting that deportation will still be
possible when evidence not derived from the illegal search or
seizure is independently sufficient. Ante, at 10. However,
that is no less true in criminal cases. The suppression of
some evidence does not bar prosecution for the crime, and in
many cases even though some evidence is suppressed a con-
viction will nonetheless be obtained.
The majority also suggests that the fact that most aliens
elect voluntary departure dilutes the deterrent effect of the
exclusionary rule, because the infrequency of challenges to
admission of evidence will mean that "the consequences from
the point of view of the officer's overall arrest and deporta-
rivial
Ante. at 11 it IF unitionerecord will be trivial." Ante, at 11. It is true that a
nded aliens elect voluntary demajority of apprehended aliens elect voluntary departure,
er go through civil deportation pwhile à lesser number go through civil deportation proceed-
iller number are criminally prosings and a still smaller number are criminally prosecuted.
diminishes
However, that fact no more diminishes the importance of the
exclusionary sanction than the fact that many criminal de-
fendants plead guilty dilutes the rule's deterrent effect in
criminal cases. The possibility of exclusion of evidence quite
obviously plays a part in the decision whether to contest
either civil deportation or criminal prosecution. Moreover,
in concentrating on the incentives under which the individual
agent operates to the exclusion of the incentives under which
the agency as a whole operates neglects the "systemic" deter-
rent effect that may lead the agency to adopt policies and pro-
cedures that conform to Fourth Amendment standards.
See, e. g., Dunaway V. New York, 442 U. S. 200, 221 (1979)
(JUSTICE STEVENS, concurring).
The majority believes "perhaps most important" the fact
that the INS has a "comprehensive scheme" in place for de-
83-491-DISSENT
4
INS L: LOPEZ-MENDOZA
terring Fourth Amendment violations by punishing agents
who commit such violations, but it points to not a single in-
stance in which that scheme has been invoked.2 Ante, at
11-12. Also, immigration officers are instructed and exam-
ined in Fourth Amendment law, and it is suggested that this
education is another reason why the exclusionary rule is un-
necessary. Id., at 11. A contrary lesson could be discerned
from the existence of these programs, however, when it is re-
called that they were instituted during "a legal regime in
which the cases and commentators uniformly sanctioned the
invocation of the rule in deportation proceedings." Lopez-
Mendoza V. INS, 705 F. 2d 1059, 1071 (CA9 1983). Thus,
rather than supporting a conclusion that the exclusionary
rule is unnecessary, the existence of these programs instead
suggests that the exclusionary rule has created incentives for
the agency to ensure that its officers follow the dictates of the
Constitution. Since the deterrent function of the rule is fur-
ther "the béhavior of individual thered if it alters either "the behavior of individual law en-
or the policies of their departforcement officers or the policies of their departments,"
on.
U. S., at
it
United
States
V.
Leon,
U.S.,
at
,
it seems likely
is deterrent effect that led to that it was the rule's deterrent effect that led to the pro-
grams to which the Court now points for its assertion that the
rule would have no deterrent effect.
The suggestion that alternative remedies, such as civil
suits, provide adequate protection is unrealistic. Contrary
to the situation in criminal cases, once the Government has
improperly obtained evidence against an illegal alien, he is
removed from the country and is therefore in no position to
file civil actions in federal courts. Moreover, those who are
The Government suggests that INS disciplinary rules are "not mere
paper procedures" and that over a period of four years 20 officers were sus-
pended or terminated for misconduct toward aliens. Brief for Petitioner
45, n. 28. The Government does not assert. however. that any of these
officers were disciplined for Fourth Amendment violations. and it appears
that the 11 officers who were terminated were terminated for rape or as-
sault. See Brief for Respondent 60. n. 42.
83-491-DISSENT
INS 2: LOPEZ-MENDOZA
5
legally in the country but are nonetheless subjected to illegal
searches and seizures are likely to be poor, uneducated, and
many will not speak English. It is doubtful that the threat
of civil suits by these persons will strike fear into the hearts
of those who enforce the Nation's immigration laws.
It is also my belief that the majority exaggerates the costs
associated with applying the exclusionary rule in this con-
text. Evidence obtained through violation of the Fourth
Amendment is not automatically suppressed, and any inquiry
into the burdens associated with application of the exclusion-
ary rule must take that fact into account. In United States
V. Leon, supra, we have held that the exclusionary rule is not
applicable when officers are acting in objective good faith.
Thus, if the agents neither knew nor should have known that
they were acting contrary to the dictates of the Fourth
Amendment, evidence will not be suppressed even if it is held
as illegal.
that their conduct was illegal.
otes. anie. at 17-18. 11. 5. the BLAsthe majority notes, ante, at 17-18, n. 5, the BIA has
ridence will be suppressed if it already held that evidence will be suppressed if it results
tions of constitutional standards. fromegregious violations of constitutional standards. Thus,
the mechanism for dealing with suppression motions exists
and is utilized, significantly decreasing the force of the major-
ity's predictions of dire consequences flowing from "even oc-
casional invocation of the exclusionary rule." Ante, at 15.
Although the standard currently utilized by the BIA may not
be precisely coextensive with the good-faith exception, any
incremental increase in the amount of evidence that is sup-
pressed through application of Leon is unlikely to be signifi-
cant. Likewise, any difference that may exist between the
two standards is unlikely to increase significantly the number
of suppression motions filed.
Contrary to the view of the majority, it is not the case that
Sandoval's "unregistered presence in this country, without
more. constitutes a crime." Ante, at 14. Section 275 of the
Immigration and Nationality Act makes it a crime to enter
83-491-DISSENT
6
INS 2: LOPEZ-MENDOZA
the United States illegally. 8 U.S. C. § 1325.3 The first
offense constitutes a misdemeanor, and subsequent offenses
constitute felonies. Ibid. Those few cases that have con-
strued this statute have held that a violation takes place at
the time of entry and that the statute does not describe a con-
tinuing offense. Gonzales V. City of Peoria, 722 F. 2d 468,
473-474 (CA9 1983); United States V. Rincon-Jiminez, 595 F.
2d 1192, 1194 (CA9 1979). Although this Court has not con-
strued the statute, it has suggested in dictum that this inter-
pretation is correct, United States V. Cores, 356 U. S. 405,
408, n. 6, and it is relatively clear that such an interpretation
is most consistent with the statutory language. Therefore,
it is simply not the case that suppressing evidence in deporta-
tion proceedings will "allo[w] the criminal to continue in the
commission of an ongoing crime." Ante, at 14. It is true
that some courts have construed § 276 of the Act, 8 U. S. C.
§ 1326, which applies to aliens previously deported who enter
United States. to describe a commarenfound in the United States, to describe a continuing
ates V. Brano. 328 F. Supp. 815offense. United States V. Bruno, 328 F. Supp. 815 (W. D.
ates V. Alearado-Soto 120 F SiMo. 1971); United States V. Alvarado-Soto, 120 F. Supp. 848
ed
States
V.
Rincon-Juninez sup(SD Cal. 1954); United States V. Rincon-Jiminez, supra (dic-
tum). But see United States V. DiSantillo, 615 F. 2d 128
(CA3 1980). In such cases, however, the Government will
have a record of the prior deportation and will have little
"Section 275 provides in part:
"Any alien who (1) enters the United States at any time or place other than
as designated by immigration officers, or (2) eludes examination or inspec-
tion by immigration officers. or (3) obtains entry to the United States by a
willfully false or misleading representation
shall be guilty of a [crime].
8 U. S. C. § 1325.
Section 276 provides in part:
"Any alien who-
(1) has been arrested and deported or excluded and deported, and
thereafter
(2) enters, attempts to enter, or is at any time found in, the United
States
shall be guilty of a felony." 8 U. S. C. § 1326.
83-491-DISSENT
INS L'. LOPEZ-MENDOZA
7
need for any evidence that might be suppressed through
application of the exclusionary rule. See United States V.
Pineda-Chinchilla, 712 F. 2d 942 (CA5 1983), cert. denied,
U.S.
(1983) (illegality of arrest does not bar intro-
duction of INS records to demonstrate prior deportation).
Although the majority relies on the registration provisions
of 8 U. S. C. §§ § 1302 and 1306 for its "continuing crime" argu-
ment, those provisions provide little support for the general
rule laid down that the exclusionary rule does not apply in
civil deportation proceedings. First, § 1302 requires that
aliens register within 30 days of entry into the country.
Thus, for the first 30 days failure to register is not a crime.
Second, § 1306 provides that only willful failure to register is
a misdemeanor. Therefore, "unregistered presence in this
country, without more," ante, at 14, does not constitute a
crime; rather, unregistered presence plus willfulness must be
shown. There is no finding that Sandoval willfully failed to
lecessary predicate to the concius register, which is a necessary predicate to the conclusion that
ntinuing crime. Third. only aliehe is engaged in a continuing crime. Third, only aliens four-
r older are required to registeteen years of age or older are required to register; those
of age are to be registered by Hunder fourteen years of age are to be registered by their par-
ents or guardian. By the majority's reasoning, therefore,
perhaps the exclusionary rule should apply in proceedings to
deport children under fourteen, since their failure to register
does not constitute a crime.
Application of the rule, we are told, will also seriously in-
terfere with the "streamlined" nature of deportation hearings
because "[n]either the hearing officers nor the attorneys par-
ticipating in those hearings are likely to be well-versed in the
intricacies of Fourth Amendment law." Ante, at 15. Yet
the majority deprecates the deterrent benefit of the exclu-
sionary rule in part on the ground that immigration officers
receive a thorough education in Fourth Amendment law.
Id., at 11. The implication that hearing officers should defer
to law enforcement officers' superior understanding of con-
stitutional principles is startling indeed.
83-491-DISSENT
8
INS L'. LOPEZ-MENDOZA
Prior to the decision of the Board of Immigration Appeals
in Matter of Sandoval, 17 I. & N. Dec. 70 (1979), neither the
Board nor any court had held that the exclusionary rule did
not apply in civil deportation proceedings. Lopez-Mendoza
V. INS, 705 F. 2d, at 1071. The Board in Sandoval noted
that there were "fewer than fifty" BIA proceedings since
1952 in which motions had been made to suppress evidence on
Fourth Amendment grounds. This is so despite the fact that
"immigration law practitioners have been informed by the
major treatise in their field that the exclusionary rule was
available to clients facing deportation. See 1A C. Gordon
and H. Rosenfield, Immigration Law and Procedure §5.2c at
5-31 (rev. ed. 1980)." Lopez-Mendoza V. INS, supra, at
1071. The suggestion that "[t]he prospect of even occasional
invocation of the exclusionary rule might significantly change
and complicate the character of these proceedings," ante, at
credit
The
that 15, is thus difficult to credit. The simple fact is that prior to
rule was available in civil dep1979 the exclusionary rule was available in civil deportation
re is no indication that it significaproceedings and there is no indication that it significantly in-
bility of the INS to function
terfered with the ability of the INS to function.
itv
suggests
that
nt
Finally, the majority suggests that application of the exclu-
sionary rule might well result in the suppression of large
amounts of information legally obtained because of the
"crowded and confused circumstances" surrounding mass ar-
rests. Ante, at 16. The result would be that INS agents
would have to keep a "precise account of exactly what hap-
pened in each particular arrest," which would be impractical
considering the "massed numbers of ascertainably illegal
aliens." Ante, at 16. Rather than constituting a rejection
of the application of the exclusionary rule in civil deportation
proceedings, however, this argument amounts to a rejection
of the application of the Fourth Amendment to the activities
of INS agents. If the pandemonium attending immigration
arrests is so great that violations of the Fourth Amendment
cannot be ascertained for the purpose of applying the exclu-
sionary rule, there is no reason to think that such violations
83-491-DISSENT
INS l'. LOPEZ-MENDOZA
9
can be ascertained for purposes of civil suits or internal disci-
plinary proceedings, both of which are proceedings that the
majority suggests provide adequate deterrence against
Fourth Amendment violations. The Court may be willing to
throw up its hands in dismay because it is administratively
inconvenient to determine whether constitutional rights have
been violated, but we neglect our duty when we subordinate
constitutional rights to expediency in such a manner. Par-
ticularly is this SO when, as here, there is but a weak showing
that administrative efficiency will be seriously compromised.
In sum, I believe that the costs and benefits of applying the
exclusionary rule in civil deportation proceedings do not dif-
fer in any significant way from the costs and benefits of ap-
plying the rule in ordinary criminal proceedings. Unless the
exclusionary rule is to be wholly done away with and the
Court's belief that it has deterrent effects abandoned, it
deportation proceedings when should be applied in deportation proceedings when evidence
by deliberate violations of the hasubeen obtained by deliberate violations of the Fourth
conduct a reasonably comperentAmendment or by conduct a reasonably competent officer
ary to the Constitution. Accordwould know is contrary to the Constitution. Accordingly, I
dissent.
SUPREME COURT OF THE UNITED STATES
No. 83-491
IMMIGRATION AND NATURALIZATION SERVICE,
PETITIONER v. ADAN LOPEZ-MENDOZA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 5, 1984]
dissenting.
JUSTICE MARSHALL, dissenting.
WHITE that application to this alagree with JUSTICE WHITE that application to this case of
odied in the decisions of the (the mode of analysis embodied in the decisions of the Court in
428 U. S. 433 (1976), and United States V. Janis, 428 U. S. 433 (1976), and United
States V. Calandra, 414 U. S. 338 (1974), compels the conclu-
sion that the exclusionary rule should apply in civil deporta-
tion proceedings. Ante, at - However, I continue to
believe that that mode of analysis fails to reflect the consti-
tutionally mandated character of the exclusionary rule. See
United States V. Leon, ante, at
(BRENNAN, J., joined by
MARSHALL, J., dissenting); United States V. Janis, 428
U.S., at 460 (BRENNAN, J., joined by MARSHALL, J., dis-
senting). In my view, a sufficient reason for excluding from
civil deportation proceedings evidence obtained in violation of
the Fourth Amendment is that there is no other way to
achieve "the twin goals of enabling the judiciary to avoid the
taint of partnership in official lawlessness and of assuring the
people-all potential victims of unlawful government con-
duct-that the government would not profit from its lawless
behavior, thus minimizing the risk of seriously undermining
popular trust in government." United States V. Calandra,
414 U.S., at 357 (BRENNAN, J., joined by MARSHALL, J.,
dissenting).
SUPREME COURT OF THE UNITED STATES
No. 83-491
IMMIGRATION AND NATURALIZATION SERVICE,
PETITIONER v. ADAN LOPEZ-MENDOZA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 5, 1984]
JUSTICE STEVENS, dissenting.
Because the Court has not yet held that the rule of United
States V. Leon,
U.S.
has any application to war-
ao not rom the portion OI rantless searches, I do not join the portion of JUSTICE
at relies on that case. I do. hoWHITE'S opinion that relies on that case. I do, however,
inder of his dissenting opinion. agree with the remainder of his dissenting opinion.
exclusioning
rule
NOTE: Where it is feasible. a syllabus (headnote) will be released. as is
being done in connection with this case. at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been pre-
pared by the Reporter of Decisions for the convenience of the reader. See
United States V. Detroit Lumber Co., 200 U. S. 321. 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MASSACHUSETTS v. SHEPPARD
CERTIORARI TO THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS
No. 82-963. Argued January 17, 1984-Decided July 5, 1984
rathered 111 the investigation U1 a nume On the basis of evidence gathered in the investigation of a homicide in the
ton a police defective drafted an affidavit Roxbury section of Boston. a police detective drafted an affidavit to sup-
in arrest warrant and a search warrant auportan application for an arrest warrant and a search warrant authoriz-
ndent's residence The affidavit stated ting the search of respondent's residence. The affidavit stated that the
for certain described items including ciorpolice wished to search for certain described items, including clothing of
the victim and a blunt instrument that might have been used on the vic-
tim. The affidavit was reviewed and approved by the District Attor-
ney. Because it was Sunday. the local court was closed, and the police
had a difficult time finding a warrant application form. The detective
finally found a warrant form previously used in another district to search
for controlled substances. After making some changes in the form, the
detective presented it and the affidavit to a judge at his residence, in-
forming him that the warrant form might need to be further changed.
Concluding that the affidavit established probable cause to search re-
spondent's residence and telling the detective that the necessary changes
in the warrant form would be made. the judge made some changes, but
did not change the substantive portion, which continued to authorize a
search for controlled substances. nor did he alter the form so as to incor-
porate the affidavit. The judge then signed the warrant and returned it
and the affidavit to the detective, informing him that the warrant was
sufficient authority in form and content to carry out the requested
search. The ensuing search of respondent's residence by the detective
and other police officers was limited to the items listed in the affidavit,
and several incriminating pieces of evidence were discovered. There-
after. respondent was charged with first-degree murder. At a pretrial
suppression hearing. the trial judge ruled that notwithstanding the war-
rant was defective under the Fourth Amendment in that it did not par-
ticularly describe the items to be seized. the incriminating evidence
I
II
MASSACHUSETTS is SHEPPARD
Syllabus
could be admitted because the police had acted in good faith in executing
what they reasonably thought was a valid warrant. At the subsequent
trial. respondent was convicted. The Massachusetts Supreme Judicial
Court held that the evidence should have been suppressed.
Held: Federal law does not require the exclusion of the disputed evidence.
Pp. 5-8.
(a) The exclusionary rule should not be applied when the officer con-
ducting the search acted in objectively reasonable reliance on a warrant
issued by a detached and neutral magistrate that subsequently is deter-
mined to be invalid. United States V. Leon, ante, p. P.5.
(b) Here. there was an objectively reasonable basis for the officers'
mistaken belief that the warrant authorized the search they conducted.
The officers took every step that could reasonably be expected of them.
At the point where the judge returned the affidavit and warrant to the
detective. a reasonable police officer would have concluded. as the detec-
tive did. that the warrant authorized a search of the materials outlined in
the affidavit. P. 6.
(c) A police officer is not required to disbelieve a judge who has just
advised him that the warrant he possesses authorizes him to conduct the
search he has requested. Pp. 6-7.
(d) An error of constitutional dimensions may have been committed
"with respect to the issuance of the warrant in this case, but it was the
ficer. who made the critical mistake. Sujudges-not the police officer, who made the critical mistake. Suppress-
e judge failed to make all the necessary ingrevidence because the judge failed to make all the necessary clerical
assurance that such changes would be macorrections despite his assurance that such changes would be made will
function that exclusionary was the deterrent function that the exclusionary rule was designed
to achieve. Pp. 7-8.
387 Mass. 488. 441 N. E. 2d 725, reversed and remanded.
WHITE. J.. delivered the opinion of the Court. in which BURGER. C.J.,
and BLACKMUN, POWELL. REHNQUIST. and O'CONNOR. JJ., joined. STE-
VENS, J., filed an opinion concurring in the judgment (see No. 82-1771).
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined
(see No. 82-1771).
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions. Supreme Court of the United States. Wash-
ington. D. C. 20543. of any typographical or other formal errors. in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 82-963
MASSACHUSETTS, PETITIONER v.
OSBORNE SHEPPARD
ON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT
OF MASSACHUSETTS
[July 5. 1984]
livered
the
opinion
AT
JUSTICE WHITE delivered the opinion of the Court.
the application of the rules articuThis case involves the application of the rules articulated
V. Leon. ane. to a situation itoday in United States V. Leon, ante, to a situation in which
pursuant to a warrant subsepolice officers seize items pursuant to a warrant subsequently
is
invalidated because of a technical error on the part of the is-
suing judge.
I
The badly burned body of Sandra Boulware was discovered
in a vacant lot in the Roxbury section of Boston at approxi-
mately 5 a. m., Saturday, May 5, 1979. An autopsy revealed
that Boulware had died of multiple compound skull fractures
caused by blows to the head. After a brief investigation, the
police decided to question one of the victim's boyfriends, Os-
borne Sheppard. Sheppard told the police that he had last
seen the victim on Tuesday night and that he had been at a
local gaming house (where cards games were played) from 9
p. m. Friday until 5 a. m. Saturday. He identified several
people who would be willing to substantiate the latter claim.
By interviewing the people Sheppard had said were at the
gaming house on Friday night, the police learned that al-
though Sheppard was at the gaming house that night, he had
borrowed an automobile at about 3 a. m. Saturday morning in
order to give two men a ride home. Even though the trip
normally took only fifteen minutes. Sheppard did not return
with the car until nearly 5 a. m.
82-963-OPINION
2
MASSACHUSETTS v. SHEPPARD
On Sunday morning, police officers visited the owner of the
car Sheppard had borrowed. He consented to an inspection
of the vehicle. Bloodstains and pieces of hair were found on
the rear bumper and within the trunk compartment. In ad-
dition, the officers noticed strands of wire in the the trunk
similar to wire strands found on and near the body of the vic-
tim. The owner of the car told the officers that when he last
used the car on Friday night, shortly before Sheppard bor-
rowed it, he had placed articles in the trunk and had not no-
ticed any stains on the bumper or in the trunk.
On the basis of the evidence gathered thus far in the inves-
tigation, Detective Peter O'Malley drafted an affidavit de-
signed to support an application for an arrest warrant and a
search warrant authorizing a search of Sheppard's residence.
The affidavit set forth the results of the investigation and
stated that the police wished to search for
"[a] fifth bottle of amaretto liquor, 2 nickel bags of mari-
3
jacket
that
has
been
juana, a woman's jacket that has been described as
coal) any possessions of Sandra black-grey (charcoal), any possessions of Sandra D.
type wire and rope that match hBoulware, similar type wire and rope that match those
Sandra D. Boulware, or in the abone the body of Sandra D. Boulware, or in the above
bhmi
Thunderbird. A blunt instrument that might have been
used on the victim, men's or women's clothing that may
have blood, gasoline burns on them. Items that may
have fingerprints of the victim."
Detective O'Malley showed the affidavit to the district attor-
ney, the district attorney's first assistant, and a sergeant,
who all concluded that it set forth probable cause for the
search and the arrest. 387 Mass. 488, 492, 441 N. E. 2d 725,
727 (1982).
Because it was Sunday, the local court was closed, and the
police had a difficult time finding a warrant application form.
1 The liquor and marihuana were included in the request because
Sheppard had told the officers that when he was last with the victim. the
two had purchased two bags of marihuana and a fifth of amaretto before
going to his residence.
82-963-OPINION
MASSACHUSETTS e: SHEPPARD
3
Detective O'Malley finally found a warrant form previously in
use in the Dorchester District. The form was entitled
"Search Warrant-Controlled Substance G. L. C. 276 §§ 1
through 3A." Realizing that some changes had to be made
before
the form could be used to authorize the search requested in
the affidavit, Detective O'Malley deleted the subtitle "con-
trolled substance" with a typewriter. He also substituted
"Roxbury" for the printed "Dorchester" and typed Shep-
pard's name and address into blank spaces provided for that
information. However, the reference to "controlled sub-
stance" was not deleted in the portion of the form that consti-
tuted the warrant application and that, when signed, would
constitute the warrant itself.
Detective O'Malley then took the affidavit and the warrant
form to the residence of a judge who had consented to con-
sider the warrant application. The judge examined the affi-
he would authorize the searcidavité and stated that he would authorize the search as re-
O'Malley offered the warrant quested. Detective O'Malley offered the warrant form and
the form as presented dealt wstatedithat he knew the form as presented dealt with con-
He showed the judge where trolled isubstances. He showed the judge where he had
crossed out the subtitles. After unsuccessfully searching for
a more suitable form, the judge informed O'Malley that he
would make the necessary changes so as to provide a proper
search warrant. The judge then took the form, made some
changes on it. and dated and signed the warrant. However,
he did not change the substantive portion of the warrant,
which continued to authorize a search for controlled sub-
stances:2 nor did he alter the form so as to incorporate the
affidavit. The judge returned the affidavit and the warrant
to O'Malley, informing him that the warrant was sufficient
authority in form and content to carry out the search as re-
"The warrant directed the officers to "search for any controlled sub-
stance. article. implement or other paraphernalia used in. for. or in connec-
tion with the unlawful possession or use of any controlled substance. and to
seize and securely keep the same until final action
82-963-OPINION
4
MASSACHUSETTS L'. SHEPPARD
quested.³ O'Malley took the two documents and, accompa-
nied by other officers, proceeded to Sheppard's residence.
The scope of the ensuing search was limited to the items
listed in the affidavit, and several incriminating pieces of evi-
dence were discovered. Sheppard was then charged with
first degree murder.
At a pretrial suppression hearing, the trial judge concluded
that the warrant failed to conform to the commands of the
Fourth Amendment because it did not particularly describe
the items to be seized. The judge ruled, however, that the
evidence could be admitted notwithstanding the defect in the
warrant because the police had acted in good faith in execut-
ing what they reasonably thought was a valid warrant.
App. 35a. At the subsequent trial, Sheppard was convicted.
On appeal, Sheppard argued that the evidence obtained
pursuant to the defective warrant should have been sup-
pressed. The Supreme Judicial Court of Massachusetts
of the justices concluded that agreed. A plurality of the justices concluded that although
at there is no evidence in the record Sheppard contends that there is no evidence in the record that the
ter
he
made
the changes. Brief for Rejudgelspoke to O'Malley after he made the changes. Brief for Respondent
11. n.4. However, the trial judge expressly found that the judge "in-
formed Detective O'Malley that the warrant as delivered over was suffi-
cient authority in form and content to carry out the search as requested."
App. 27a. and a plurality of the Supreme Judicial Court noted that finding
without any apparent disapproval. 387 Mass., at 497, 441 N. E. 2d. at
730. Since it would have been reasonable for O'Malley to infer that the war-
rant was valid when the judge made some changes after assuring him that
the form would be corrected. an express assurance that the warrant was
adequate would add little to the reasonableness of O'Malley's belief that the
necessary changes had been made. Therefore. nothing would be served
by combing the record to determine whether there is sufficient evidence to
support the trial court's finding that the judge spoke to O'Malley after sign-
ing the warrant.
The police found a pair of bloodstained boots, blood stains on the con-
crete floor. a woman's earring with bloodstains on it. a bloodstained enve-
lope. a pair of men's jockey shorts and women's leotards with blood on
them, three types of wire, and a woman's hairpiece, subsequently identi-
fied as the victim's.
82-963-OPINION
MASSACHUSETTS 2: SHEPPARD
5
"the police conducted the search in a good faith belief, reason-
ably held, that the search was lawful and authorized by the
warrant issued by the judge," 387 Mass., at 503, 441 N. E.
2d, at 733, the evidence had to be excluded because this
Court had not recognized a good-faith exception to the exclu-
sionary rule. Two justices combined in a separate concur-
rence to stress their rejection of the good-faith exception,
and one justice dissented, contending that since exclusion of
the evidence in this case would not serve to deter any police
misconduct, the evidence should be admitted. We granted
certiorari and set the case for argument in conjunction with
United States V. Leon, ante.
II
Having already decided that the exclusionary rule should
not be applied when the officer conducting the search acted in
objectively reasonable reliance on a warrant issued by a de-
tached and neutral magistrate that subsequently is deter-
at
; the sole issue beforminedato be invalid, id., at
, the sole issue before us in
he officers reasonably believ this case is whether the officers reasonably believed that the
was authorized by a valid wsearch they conducted was authorized by a valid warrant.3
Both the trial court. App. 32a. and a majority of the Supreme Judicial
Court. 387 Mass., at 500-501. 441 N. E. 2d. at 731-732: id., at 510. 441
N. E. 2d. at 737 (Liacos. J.. concurring). concluded that the warrant was
constitutionally defective because the description in the warrant was com-
pletely inaccurate and the warrant did not incorporate the description con-
tained in the affidavit. Petitioner does not dispute this conclusion.
Petitioner does argue, however. that even though the warrant was
invalid. the search was constitutional because it was reasonable within the
meaning of the Fourth Amendment. Brief for Petitioner 28-32. The uni-
formly applied rule is that a search conducted pursuant to a warrant that
fails to conform to the particularity requirement of the Fourth Amendment
is unconstitutional. Stanford V. Texas. 379 U.S. 476 (1965): United
States v. Cardwell. 680 F. 2d 75. 77-78 (CA9 1982): United States v. Cro-
zier. 674 F. 2d 1293, 1299 (CA9 1982): United States v. Klein, 565 F. 2d
183. 185 (CA1 1977): United States v. Gardner. 537 F. 2d 861. 862 (CA6
1976): United States v. Marti. 421 F. 2d 1263. 1268-1269 (CA2 1970).
That rule is in keeping with the well-established principle that "except in
certain carefully defined classes of cases. a search of private property with-
82-963-OPINION
6
MASSACHUSETTS L'. SHEPPARD
There is no dispute that the officers believed that the war-
rant authorized the search that they conducted. Thus, the
only question is whether there was an objectively reasonable
basis for the officers' mistaken belief. Both the trial court,
App. 35a, and a majority of the Supreme Judicial Court, 387
Mass., at 503, 441 N. E. 2d, at 733; id., at 524-525, 441 N. E.
2d, at 745 (Lynch, J., dissenting), concluded that there was.
We agree.
The officers in this case took every step that could reason-
ably be expected of them. Detective O'Malley prepared an
affidavit which was reviewed and approved by the District
Attorney. He presented that affidavit to a neutral judge.
The judge concluded that the affidavit established probable
cause to search Sheppard's residence, App. 26a, and in-
formed O'Malley that he would authorize the search as re-
quested. O'Malley then produced the warrant form and in-
formed the judge that it might need to be changed. He was
the necessary changes would btold by the judge that the necessary changes would be made.
judge make some changes and He then observed the judge make some changes and received
affidavit. At this point. a reathe warrant and the affidavit. At this point, a reasonable
ave concluded. as Malley did police officer would have concluded. as O'Malley did, that the
warrant authorized a search for the materials outlined in the
affidavit.
Sheppard contends that since O'Malley knew the warrant
form was defective, he should have examined it to make sure
that the necessary changes had been made. However, that
argument is based on the premise that O'Malley had a duty to
disregard the judge's assurances that the requested search
would be authorized and the necessary changes would be
made. Whatever an officer may be required to do when he
out proper consent is 'unreasonable' unless it has been authorized by a valid
warrant." Camara V. Municipal Court. 387 U. S. 523, 528-529 (1967).
See Steagald V. United States. 451 U. S. 204. 211-212 (1981): Jones V.
United States, 357 U. S. 493. 499 (1958). Whether the present case fits
into one of those carefully defined classes is a fact-bound issue of little im-
portance since similar situations are unlikely to arise with any regularity.
82-963-OPINION
MASSACHUSETTS L'. SHEPPARD
7
executes a warrant without knowing beforehand what items
are to be seized," we refuse to rule that an officer is required
to disbelieve a judge who has just advised him, by word and
by action, that the warrant he possesses authorizes him to
conduct the search he has requested. In Massachusetts, as
in most jurisdictions, the determinations of a judge acting
within his jurisdiction, even if erroneous, are valid and bind-
ing until they are set aside under some recognized procedure.
Streeter V. City of Worcester, 336 Mass. 469, 472, 146 N. E.
2d 514, 517 (1957); Moll V. Township of Wakefield, 274 Mass.
505, 507, 175 N. E. 81, 82 (1931). If an officer is required to
accept at face value the judge's conclusion that a warrant
form is invalid, there is little reason why he should be ex-
pected to disregard assurances that everything is all right,
especially when he has alerted the judge to the potential
problems.
In -sum, the police conduct in this case clearly was objec-
largely error-free. An errortivelyrreasonable and largely error-free. An error of con-
may have been committed stitutional dimensions may have been committed with re-
the warrant. but it was the judpectito the issuance of the warrant. but it was the judge, not
made
the
itical
mistake.
The police officers, who made the critical mistake. "[T]he ex-
clusionary rule was adopted to deter unlawful searches by po-
lice, not to punish the errors of magistrates and judges." Il-
linois v. Gates, 462 U.S.
,
(1983) (WHITE, J.,
concurring in the judgment). Suppressing evidence be-
"Normally. when an officer who has not been involved in the application
stage receives a warrant, he will read it in order to determine the object of
the search. In this case. Detective O'Malley. the officer who directed the
search. knew what items were listed in the affidavit presented to the
judge, and he had good reason to believe that the warrant authorized the
seizure of those items. Whether an officer who is less familiar with the
warrant application or who has unalleviated concerns about the proper
scope of the seach would be justified in failing to notice a defect like the one
in the warrant in this case is an issue we need not decide. We hold only
that it was not unreasonable for the police in this case to rely on the judge's
assurances that the warrant authorized the search they had requested.
This is not an instance in which "it is plainly evident that a magistrate
82-963-OPINION
8
MASSACHUSETTS ¿. SHEPPARD
cause the judge failed to make all the necessary clerical cor-
rections despite his assurances that such changes would be
made will not serve the deterrent function that the exclusion-
ary rule was designed to achieve. Accordingly, federal law
does not require the exclusion of the disputed evidence in this
case. The judgment of the Supreme Judicial Court is there-
fore reversed, and the case is remanded for further proceed-
ings not inconsistent with this opinion.
It is so ordered.
or judge had no business issuing a warrant." Illinois v. Gates. 462 U.S.,
at
(WHITE. J., concurring in the judgment). The judge's error was
not in concluding that a warrant should issue but in failing to make the nec-
essary changes on the form. Indeed. Sheppard admits that if the judge
had crossed out the reference to controlled substances. written "see at-
tached affidavit" on the form, and attached the affidavit to the warrant, the
warrant would have been valid. Tr. of Oral Arg. 27. 50. See United
States V. Johnson. 690 F. 2d 60, 64-65 (CA3 1982). cert. denied. U.S.
(1983): In re Property Belonging to Talk of the Town Bookstore. Inc.,
614 F. 2d 1317. 1318-1319 (CA9 1981): United States v. Johnson, 541 F. 2d
1311. 1315-1316 (CA8 1976): United States v. Womack. 509 F. 2d 368. 382
(CADC 1974): Commonwealth v. Todisco, 363 Mass. 415, 450. 294 N. E. 2d
860. 864 (1973).
exclusing rule
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been pre-
pared by the Reporter of Decisions for the convenience of the reader. See
United States V. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SEGURA ET AL. v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 82-5298. Argued November 9, 1983-Decided July 5, 1984
that petitioners probably trafficking Acting on information that petitioners probably were trafficking in cocaine
New York Time Tack Force from their apartment, New York Drug Enforcement Task Force agents
of petitioners. Thereafter, upon observingegan a surveillance of petitioners. Thereafter, upon observing peti-
a bulky package LO one Parra at 2 restaurantioner Colon deliver a bulky package to one Parra at a restaurant park-
oner Segura and one Rivudalla-Vidal visited ingidot, while petitioner Segura and one Rivudalla-Vidal visited inside
the restaurant, the agents followed Parra and Rivudalla-Vidal to their
apartment and stopped them. Parra was found to possess cocaine, and
she and Rivudalla-Vidal were immediately arrested. After being ad-
vised of his constitutional rights, Rivudalla-Vidal admitted that he had
purchased the cocaine from petitioner Segura and confirmed that peti-
tioner Colon had made the delivery at the restaurant. Task Force
agents were then authorized by an Assistant United States Attorney to
arrest petitioners, and were advised that a search warrant for petition-
ers' apartment probably could not be obtained until the following day but
that the agent should secure the premises to prevent destruction of evi-
dence. Later that same evening, the agents arrested petitioner Segura
in the lobby of petitioners' apartment building, took him to the apart-
ment, knocked on the door, and, when it was opened by petitioner Colon,
entered the apartment without requesting or receiving permission. The
agents then conducted a limited security check of the apartment and in
the process observed, in plain view, various drug paraphernalia. Peti-
tioner Colon was then arrested, and both petitioners were taken into
custody. Two agents remained in the apartment awaiting the warrant
but because of "administrative delay" the search warrant was not issued
until some 19 hours after the initial entry into the apartment. In the
search pursuant to the warrant, the agents discovered, inter alia, co-
caine and records of narcotics transactions. These items were seized,
together with those observed during the security check. The District
I
II
SEGURA v. UNITED STATES
Syllabus
Court granted petitioners' pretrial motion to suppress all the seized evi-
dence. The Court of Appeals held that the evidence discovered in plain
view on the initial entry, but not the evidence seized during the warrant
search, must be suppressed. Petitioners were subsequently convicted
of violating federal drug laws, and the Court of Appeals affirmed.
Held:
1. The exclusionary rule reaches not only primary evidence obtained
as a direct result of an illegal search or seizure, but also evidence later
discovered and found to be derivative of an illegality or "fruit of the poi-
sonous tree." Nardone V. United States, 308 U. S. 338, 341. The ex-
clusionary rule does not apply, however, if the connection between the
illegal police conduct and the discovery and seizure of the evidence is "so
attenuated as to dissipate the taint," ibid., as, for example, where the
police had an "independent source" for discovery of the evidence.
Silverthorne Lumber Co. V. United States, 251 U. S. 385. Pp. 7-9.
2. Here, there was an independent source for the challenged evidence;
the evidence was discovered during a search of petitioners' apartment
pursuant to a valid warrant. The information on which the warrant was
secured came from sources wholly unconnected with the initial entry and
was known to the agents well before that entry. Hence, whether the
or
not
is
irrelevant
to
the
admissibility
of
heitial entry was illegal or not is irrelevant to the admissibility of the evi-
of
the
evidence
15
not
warranted
as
derivative
dence, and exclusion of the evidence is not warranted as derivative or as
tree.
Pp.
18-21
"fruit of the poisonous tree." Pp. 18-21.
697 F. 2d 300, affirmed.
BURGER, C. J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, III, V, and VI, in which
WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined, and an opinion
with respect to Part IV, in which O'CONNOR, J., joined. STEVENS, J.,
filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACK-
MUN, JJ., joined.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States. Wash-
ington. D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 82-5298
ANDRES SEGURA AND LUZ MARINA COLON,
PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
Liuiv 5.
[July 5, 1984]
TICE delivered the opinion of the OTHE CHIEF JUSTICE delivered the opinion of the Court.*
tiorari to decide whether. because engranted certiorari to decide whether, because of an
the Fourth Amendment reminearlier illegal entry, the Fourth Amendment requires sup-
pression of evidence seized later from a private residence
pursuant to a valid search warrant which was issued on in-
formation obtained by the police before the entry into the
residence.
I
Resolution of this issue requires us to consider two sepa-
rate questions: first, whether the entry and internal securing
of the premises constituted an impermissible seizure of all the
contents of the apartment, seen and unseen; second, whether
the evidence first discovered during the search of the apart-
ment pursuant to a valid warrant issued the day after the en-
try should have been suppressed as fruit of the illegal entry.
Our disposition of both questions is carefully limited.
The Court of Appeals affirmed the District Court's holding
that there were no exigent circumstances to justify the war-
rantless entry into petitioners' apartment. That issue is not
before us, and we have no reason to question the courts' hold-
ing that that search was illegal. The ensuing interference
with petitioners' possessory interests in their apartment,
*JUSTICE WHITE, JUSTICE POWELL, and JUSTICE REHNQUIST join all
but Part IV of this opinion.
82-5298-OPINION
2
SEGURA v. UNITED STATES
however, is another matter. On this first question, we con-
clude that, assuming that there was a seizure of all the con-
tents of the petitioners' apartment when agents secured the
premises from within, that seizure did not violate the Fourth
Amendment. Specifically, we hold that where officers, hav-
ing probable cause, enter premises, and with probable cause,
arrest the occupants who have legitimate possessory inter-
ests in its contents and take them into custody and, for no
more than the period here involved, secure the premises
from within to preserve the status quo while others, in good
faith, are in the process of obtaining a warrant, they do not
violate the Fourth Amendment's proscription against unrea-
sonable seizures.¹ The illegality of the initial entry, as we
will show, has no bearing on the second question.
The resolution of this second question requires that we deter-
mine whether the initial entry tainted the discovery of the
lienged. On this issue. We hold that evidence now challenged. On this issue, we hold that the ev-
during the subsequent theidence discovered during the subsequent search of the apart-
day pursuant to the valid search "ment the following day pursuant to the valid search warrant
information known to the officers issued wholly on information known to the officers before the
entry into the apartment need not have been suppressed as
"fruit" of the illegal entry because the warrant and the in-
formation on which it was based were unrelated to the entry
and therefore constituted an independent source for the evi-
dence under Silverthorne Lumber Co. V. United States, 251
U. S. 385 (1920).
II
In January 1981, the New York Drug Enforcement Task
Force received information indicating that petitioners
Andres Segura and Luz Marina Colon probably were traffick-
ing in cocaine from their New York apartment. Acting on
this information, Task Force agents maintained continuing
surveillance over petitioners until their arrest on February
'See Griswold, Criminal Procedure, 1969-Is It A Means Or An End?,
29 Md. L. Rev. 307, 317 (1969); see generally 2 W. LaFave, Search and
Seizure § 6.5 (1978).
82-5298-OPINION
SEGURA v. UNITED STATES
3
12, 1981. On February 9, agents observed a meeting be-
tween Segura and Enrique Rivudalla-Vidal, during which, as
it later developed, the two discussed the possible sale of co-
caine by Segura to Rivudalla-Vidal. Three days later, Feb-
ruary 12, Segura telephoned Rivudalla-Vidal and agreed to
provide him with cocaine. The two agreed that the delivery
would be made at 5 p. m. that day at a designated fast-food
restaurant in Queens, N. Y. Rivudalla-Vidal and one Es-
ther Parra, arrived at the restaurant at 5 p. m., as agreed.
While Segura and Rivudalla-Vidal visited inside the restau-
rant, agents observed Luz Marina Colon deliver a bulky
package to Parra, who had remained in Rivudalla-Vidal's car
in the restaurant parking lot. A short time after the deliv-
ery of the package, Rivudalla-Vidal and Parra left the restau-
rant and proceeded to their apartment. Task Force agents
followed. The agents stopped the couple as they were about
VIGUES
apartment.
Parra
was into enter Rivudalla-Vidal's apartment. Parra was found to
th Rivudalla-Vidal and Parra were possess cocaine; both Rivudalla-Vidal and Parra were imme-
diately arrested.
Vidal and Parra were advised of their After Rivudalla-Vidal and Parra were advised of their con-
Rivudalla-Vidal agreed in conneraistitutional rights, Rivudalla-Vidal agreed to cooperate with
the agents. He admitted that he had purchased the cocaine
from Segura and he confirmed that Colon had made the deliv-
ery at the fast-food restaurant earlier that day, as the agents
had observed. Rivudalla-Vidal informed the agents that
Segura was to call him at approximately 10 o'clock that eve-
ning to learn if Rivudalla-Vidal had sold the cocaine, in which
case Segura was to deliver additional cocaine.
Between 6:30 and 7 p. m., the same day, Task Force
agents sought and received authorization from an Assistant
United States Attorney to arrest Segura and Colon. The
agents were advised by the Assistant United States Attor-
ney that because of the lateness of the hour, a search warrant
for petitioners' apartment probably could not be obtained
until the following day, but that the agents should proceed to
secure the premises to prevent the destruction of evidence.
82-5298-OPINION
4
SEGURA v. UNITED STATES
At about 7:30 p. m., the agents arrived at petitioners'
apartment and established external surveillance. At 11:15
p. m., Segura, alone, entered the lobby of the apartment
building where he was immediately arrested by agents. He
first claimed he did not reside in the building. The agents
took him to his third floor apartment, and when they knocked
on the apartment door, a woman later identified as Luz Colon
appeared; the agents then entered with Segura, without re-
questing or receiving permission. There were three persons
in the living room of the apartment in addition to Colon.
Those present were informed by the agents that Segura was
under arrest and that a search warrant for the apartment
was being obtained.
Following this brief exchange in the living room, the
agents conducted a limited security check of the apartment to
ensure that no one else was there who might pose a threat to
in their safety or destroy evidence. In the process, the agents
room in plain view. a trinle-heamobserved, in a bedroom in plain view, a triple-beam scale,
numerous small cellophane bags jars of lactose, and numerous small cellophane bags, all ac-
trafficking None of these couterments of drug trafficking. None of these items was
Atter this limited security disturbed by the agents. After this limited security check,
Luz Colon was arrested. In the search incident to her ar-
rest, agents found in her purse a loaded revolver and more
than $2,000 in cash. Colon, Segura, and the other occupants
of the apartment were taken to Drug Enforcement Adminis-
tration headquarters.
Two Task Force agents remained in petitioners' apartment
awaiting the warrant. Because of what is characterized as
"administrative delay" the warrant application was not pre-
sented to the magistrate until 5 p. m. the next day. The
warrant was issued and the search was performed at approxi-
mately 6 p. m., some 19 hours after the agents' initial entry
into the apartment. In the search pursuant to the warrant,
agents discovered almost three pounds of cocaine, 18 rounds
of .38-caliber ammunition fitting the revolver agents had
found in Luz Colon's possession at the time of her arrest,
82-5298-OPINION
SEGURA v. UNITED STATES
5
more than $50,000 cash, and records of narcotics transac-
tions. Agents seized these items, together with those ob-
served during the security check the previous night.
Before trial in the United States District Court in the
Eastern District of New York, petitioners moved to suppress
all of the evidence seized from the apartment-the items dis-
covered in plain view during the initial security check and
those not in plain view first discovered during the subsequent
warrant search.2 After a full evidentiary hearing, the Dis-
trict Court granted petitioners' motion. The court ruled
that there were no exigent circumstances justifying the ini-
tial entry into the apartment. Accordingly, it held that the
entry, the arrest of Colon and search incident to her arrest,
and the effective seizure of the drug paraphernalia in plain
view were illegal. The District Court ordered this evidence
suppressed as "fruits" of illegal searches.
The District Court held that the warrant later issued was
rmation sufficient to estanush prsupported by information sufficient to establish probable
read United States V Griffin 102cause; however, it read United States V. Griffin, 502 F. 2d
nied. 419 U. S. 1050 (1974). as red 959 (GA6), cert. denied, 419 U. S. 1050 (1974), as requiring
seized
the
suppression of the evidence seized under the valid warrant.³
The District Court reasoned that this evidence would not
necessarily have been discovered because, absent the illegal
2 Rivudalla-Vidal and Parra were indicted with petitioners and were
charged with one count of possession with intent to distribute one-half kilo-
gram of cocaine on one occasion and one kilogram on another occasion.
Both pled guilty to the charges. They moved in the District Court to sup-
press the one-half kilogram of cocaine found on Parra's person at the time
of their arrests on the ground that the Task Force agents had stopped
them in violation of Terry V. Ohio, 392 U. S. 1 (1968). The court denied
the motion. Rivudalla-Vidal and Parra absconded prior to sentencing by
the District Court.
3In Griffin, absent exigent circumstances, police officers forcibly en-
tered an apartment and discovered in plain view narcotics and related
paraphernalia. The entry took place while other officers sought a search
warrant. The Court of Appeals for the Sixth Circuit affirmed the District
Court's grant of the defendant's suppression motion.
82-5298-OPINION
6
SEGURA v. UNITED STATES
entry and "occupation" of the apartment, Colon might have
arranged to have the drugs removed or destroyed, in which
event they would not have been in the apartment when the
warrant search was made. Under this analysis, the District
Court held that even the drugs seized under the valid war-
rant were "fruit of the poisonous tree."
On an appeal limited to the admissibility of the incriminat-
ing evidence, the Court of Appeals affirmed in part and re-
versed in part. 663 F. 2d 411 (1981). It affirmed the Dis-
trict Court holding that the initial warrantless entry was not
justified by exigent circumstances and that the evidence dis-
covered in plain view during the initial entry must be sup-
pressed. The Court of Appeals rejected the argument ad-
vanced by the United States that the evidence in plain view
should not be excluded because it was not actually "seized"
until after the search warrant was secured.
Relying upon its holding in United States V. Agapito, 620
cert denied, 449 U. S. 834 (1980F. 2de324 (CA2), cert. denied, 449 U.S. 834 (1980),5 the
Court and the Court of Annesis held that the Both the District Court and the Court of Appeals held that the initial
was not justified by exigent
entry into the apartment was not justified by exigent circumstances, and
issovered
plain
during
The
thus that the items discovered in plain view during the limited security
check had to be suppressed to effect the purposes of the Fourth Amend-
ment. The United States, although it does not concede the correctness of
this holding, does not contest it in this Court. Because the government
has decided not to press its argument that exigent circumstances existed.
we need not and do not address this aspect of the Court of Appeals deci-
sion. We are concerned only with whether the Court of Appeals properly
determined that the Fourth Amendment did not require suppression of the
evidence seized during execution of the valid warrant.
5 In Agapito, DEA agents, following a two-day surveillance of the de-
fendant's hotel room, arrested the suspected occupants of the room in the
lobby of the hotel. After the arrests, the agents entered the hotel room
and remained within, with the exception of periodic departures, for almost
24 hours until a search warrant issued. During their stay in the room, the
agents seized but did not open a suitcase found in the room. In the search
pursuant to the warrant, the agents found cocaine in the suitcase. Al-
though the Second Circuit held that the initial entry was illegal, it held that
the cocaine need not be suppressed because it was discovered in the search
under the valid warrant.
82-5298-OPINION
SEGURA v. UNITED STATES
7
Court of Appeals reversed the District Court's holding re-
quiring suppression of the evidence seized under the valid
warrant executed on the day following the initial entry. The
Court of Appeals described as "prudentially unsound" the
District Court's decision to suppress that evidence simply
because it could have been destroyed had the agents not
entered.
Petitioners were convicted of conspiring to distribute co-
caine, in violation of 21 U. S. C. § 846, and of distributing and
possessing with intent to distribute cocaine, in violation of 21
U. S. C. § 841(a)(1). On the subsequent review of these con-
victions, the Second Circuit affirmed, rejecting claims by pe-
titioners that the search warrant was procured through ma-
terial misrepresentations and that the evidence at trial was
insufficient as a matter of law to support their convictions.
We granted certiorari, 459 U. S. 1200 (1983), and we affirm.
III
is important to focus on the narrow At the outset, it is important to focus on the narrow and
before us. As we have noteprecise question now before us. As we have noted, the
freed with the District Court that Court of Appeals agreed with the District Court that the ini-
tial warrantless entry, and the limited security search were
not justified by exigent circumstances and were therefore il-
legal. No review of that aspect of the case was sought by
the Government and no issue concerning items observed dur-
ing the initial entry is before the Court. The only issue here
is whether drugs and the other items not observed during the
initial entry and first discovered by the agents the day after
the entry, under an admittedly valid search warrant, should
have been suppressed.
The suppression or exclusionary rule is a judicially pre-
scribed remedial measure and as "with any remedial device,
the application of the rule has been restricted to those areas
where its remedial objectives are thought most efficaciously
served." United States V. Calandra, 414 U. S. 338, 348
(1974). Under this Court's holdings, the exclusionary rule
82-5298-OPINION
8
SEGURA v. UNITED STATES
reaches not only primary evidence obtained as a direct result
of an illegal search or seizure, Weeks V. United States, 232
U. S. 383 (1914), but also evidence later discovered and found
to be derivative of an illegality or "fruit of the poisonous
tree." Nardone V. United States, 308 U. S. 338, 341 (1939).
It "extends as well to the indirect as the direct products" of
unconstitutional conduct. Wong Sun V. United States, 371
U. S. 471, 484 (1963).
Evidence obtained as a direct result of an unconstitutional
search or seizure is plainly subject to exclusion. The ques-
tion to be resolved when it is claimed that evidence subse-
quently obtained is "tainted" or is "fruit" of a prior illegality
is whether the challenged evidence was
"come at by exploitation of [the initial] illegality or in-
stead by means sufficiently distinguishable to be purged
of the primary taint." Id., at 488 (citation omitted; em-
phasis added).
It has been well established for more than 60 years that ev-
excluded if the connection between idence is not to be excluded if the connection between the ille-
and the discovery and scizure of gal police conduct and the discovery and seizure of the evi-
dence is "so attenuated as to dissipate the taint," Nardone V.
United States, supra, at 341. It is not to be excluded, for
example, if police had an "independent source" for discovery
of the evidence:
"The essence of a provision forbidding the acquisition of
evidence in a certain way is that not merely evidence SO
acquired shall not be used before the Court but that it
shall not be used at all. Of course this does not mean
that the facts thus obtained become sacred and inaccessi-
ble. If knowledge of them is gained from an independ-
ent source they may be proved like any others." Silver-
thorne Lumber Co. V. United States, 251 U.S., at 392
(emphasis added).
In short, it is clear from our prior holdings that "the exclu-
sionary rule has no application [where] the Government
82-5298-OPINION
SEGURA v. UNITED STATES
9
learned of the evidence 'from an independent source."
Wong Sun, supra, at 487 (quoting Silverthorne Lumber Co.,
supra, at 392); see also United States V. Crews, 445 U. S. 463
(1980); United States V. Wade, 388 U. S. 218, 242 (1967); Cos-
tello V. United States, 365 U. S. 265, 278-280 (1961).
IV
A
Petitioners argue that all of the contents of the apart-
ment, seen and not seen, including the evidence now in ques-
tion, were "seized" when the agents entered and remained on
the premises while the lawful occupants were away from the
apartment in police custody. The essence of this argument
is that because the contents were then under the control of
the agents and no one would have been permitted to remove
the incriminating evidence from the premises or destroy it, a
"seizure" took place. Plainly, this argument is advanced to
me "independent source" exception the Silverthorne "independent source" exception. If
ne apartment were seized at the all the contents of the apartment were "seized" at the time of
resumably the evidence now chalthe illegal entry, presumably the evidence now challenged
ble as primary evidence obtained would be suppressible as primary evidence obtained as a di-
rect result of that entry.
We need not decide whether, when the agents entered the
apartment and secured the premises, they effected a seizure
of the cocaine, the cash, the ammunition, and the narcotics
records within the meaning of the Fourth Amendment. By
its terms, the Fourth Amendment forbids only "unreason-
able" searches and seizures. Assuming, arguendo, that the
agents seized the entire apartment and its contents, as peti-
tioners suggest, the seizure was not unreasonable under the
totality of the circumstances.
Different interests are implicated by a seizure than by a
search. United States V. Jacobsen, 466 U.S.
,
(1984); Texas V. Brown, 460 U.S.
,
(1983); id., at
(STEVENS, J., concurring in judgment); United States V.
Chadwick, 433 U.S. 1, 13-14, n. 8 (1977); Chambers V.
82-5298-OPINION
10
SEGURA v. UNITED STATES
Maroney, 399 U. S. 42, 51-52 (1970). A seizure affects only
the person's possessory interests; a search affects a person's
privacy interests. United States V. Jacobsen, supra, at
; United States V. Chadwick, supra, at 13-14, n. 8; see
generally Texas V. Brown, supra (concurring opinion). Rec-
ognizing the generally less intrusive nature of a seizure,
Chadwick, supra, at 13-14, n. 8; Chambers V. Maroney,
supra, at 51, the Court has frequently approved warrantless
seizures of property, on the basis of probable cause, for the
time necessary to secure a warrant, where a warrantless
search was either held to be or likely would have been held
impermissible. Chambers V. Maroney, supra; United States
V. Chadwick, supra; Arkansas V. Sanders, 442 U. S. 753
(1979).6
We focused on the issue notably in Chambers, holding that
it was reasonable to seize and impound an automobile, on the
the
Court
In two instances, the Court has allowed temporary seizures and lim-
unon
tess
prohehie
ited détentions of property based upon less than probable cause. In
Lecuwen, 397 U. S. 249 (1970). the Court United States V. Van Leeuwen, 397 U.S. 249 (1970), the Court refused to
and detention-an the basis of only reasonab invalidate the seizure and detention-on the basis of only reasonable suspi-
delivered is a United States Post Office for cion-of two packages delivered to a United States Post Office for mailing.
One of the packages was detained on mere suspicion for only 1½ hours; by
the end of that period enough information had been obtained to establish
probable cause that the packages contained stolen coins. But the other
package was detained for 29 hours before a search warrant was finally
served. Both seizures were held reasonable. In fact, the Court sug-
gested that both seizures and detentions for these "limited times" were
"prudent" under the circumstances.
Only last Term, in United States V. Place, 462 U. S. - (1983), we con-
sidered the validity of a brief seizure and detention of a traveler's luggage,
on the basis of a reasonable suspicion that the luggage contained contra-
band; the purpose of the seizure and brief detention were to investigate
further the causes for the suspicion. Although we held that the 90-minute
detention of the luggage in the airport was, under the circumstances, un-
reasonable, we held that the rationale of Terry V. Ohio, 392 U. S. 1 (1968),
applies to permit an officer, on the basis of reasonable suspicion that a trav-
eler is carrying luggage containing contraband, to seize and detain the lug-
gage briefly to "investigate the circumstances that aroused his suspicion."
462 U. S., at
82-5298-OPINION
SEGURA v. UNITED STATES
11
basis of probable cause, for "whatever period is necessary to
obtain a warrant for the search." 399 U. S., at 51 (footnote
omitted). We acknowledged in Chambers that following the
car until a warrant could be obtained was an alternative to
impoundment, albeit an impractical one. But we allowed the
seizure nonetheless because otherwise the occupants of the
car could have removed the "instruments or fruits of crime"
before the search. Id., at 51, n. 9. The Court allowed the
warrantless seizure to protect the evidence from destruction
even though there was no immediate fear that the evidence
was in the process of being destroyed or otherwise lost. The
Chambers Court declared:
"For constitutional purposes, we see no difference be-
tween on the one hand seizing and holding the car before
presenting the probable cause issue to a magistrate and
on the other hand carrying out an immediate search
without a warrant. Given probable cause to search,
reasonable under ine I ourin Ameneither course is reasonable under the Fourth Amend-
32
ment." Id., at 52 (emphasis added)
held that the warrantless search ofInhChadwick, we held that the warrantless search of the
ad been scined and was in a socure footlocker after it had been seized and was in a secure area of
the Federal Building violated the Fourth Amendment's pro-
scription against unreasonable searches, but neither the re-
spondents nor the Court questioned the validity of the initial
warrantless seizure of the footlocker on the basis of probable
cause. The seizure of Chadwick's footlocker clearly inter-
fered with his use and possession of the footlocker-his pos-
sessory interest-but we held that this did not "diminish [his]
legitimate expectation that the footlocker's contents would
remain private." 433 U. S., at 13-14, n. 8 (emphasis added).
And again, in Arkansas V. Sanders, supra, we held that ab-
sent exigent circumstances a warrant was required to search
luggage seized from an automobile which was already in the
possession and control of police at the time of the search.
However, we expressly noted that the police acted not only
"properly," but "commendably" in seizing the suitcase with-
82-5298-OPINION
12
SEGURA v. UNITED STATES
out a warrant on the basis of probable cause to believe that it
contained drugs. 442 U. S., at 761. The taxi into which the
suitcase had been placed was about to drive away. How-
ever, just as there was no immediate threat of loss or de-
struction of evidence in Chambers-since officers could have
followed the car until a warrant issued-so too in Sanders of-
ficers could have followed the taxicab. Indeed, there argu-
ably was even less fear of immediate loss of the evidence in
Sanders because the suitcase at issue had been placed in the
vehicle's trunk, thus rendering immediate access unlikely be-
fore police could act.
Underlying these decisions is a belief that society's interest
in the discovery and protection of incriminating evidence
from removal or destruction can supersede, at least for a lim-
ited period, a person's possessory interest in property, pro-
vided that there is probable cause to believe that that prop-
erty is associated with criminal activity. See United States
(1950).
V. Place, 462 U.S. - (1983).
had
occasion
to
consider
whether.
The Court has not had occasion to consider whether, when
able cause to believe that evidence offficers have probable cause to believe that evidence of crimi-
the premises the temporary securinal cactivity is on the premises, the temporary securing of a
dwelling to prevent the removal or destruction of evidence
violates the Fourth Amendment. However, in two cases we
have suggested that securing of premises under these cir-
cumstances does not violate the Fourth Amendment, at least
when undertaken to preserve the status quo while a search
warrant is being sought. In Mincey V. Arizona, 437 U. S.
385 (1978), we noted with approval that, to preserve evi-
dence, a police guard had been stationed at the entrance to an
apartment in which a homicide had been committed, even
though "[t]here was no indication that evidence would be
lost, destroyed, or removed during the time required to ob-
tain a search warrant." Id., at 394. Similarly, in Rawlings
V. Kentucky, 448 U. S. 98 (1980), although officers secured,
from within, the home of a person for whom they had an ar-
rest warrant, and detained all occupants while other officers
82-5298-OPINION
SEGURA v. UNITED STATES
13
were obtaining a search warrant, the Court did not question
the admissibility of evidence discovered pursuant to the war-
rant later issued.⁷
We see no reason, as Mincey and Rawlings would suggest,
why the same principle applied in Chambers, Chadwick, and
Sanders, should not apply where a dwelling is involved. The
sanctity of the home is not to be disputed. But the home is
sacred in Fourth Amendment terms not primarily because of
the occupants' possessory interests in the premises, but be-
cause of their privacy interests in the activities that take
place within. "[T]he Fourth Amendment protects people,
not places." Katz V. United States, 389 U. S. 347, 351
(1967); see also Payton V. New York, 445 U. S. 573, 615
(1980) (WHITE, J., dissenting).
As we have noted, however, a seizure affects only posses-
sory interests, not privacy interests. Therefore, the height-
distinguished constitutional scholar raised the question whether a
ght not be appropriate to preserve the seizure of premises might not be appropriate to preserve the status quo
vidence while police officers in good laitland protect valuable evidence while police officers in good faith seek a
warrant.
practical problem. Does the Donce "Here there is a very real practical problem. Does the police officer
the
have any power to maintain the status quo while he, or a colleague of his, is
taking the time necessary to draw up a sufficient affidavit to support an
application for a search warrant, and then finding a magistrate, submitting
the application to him, obtaining the search warrant if it is issued, and then
bringing it to the place where the arrest was made. It seems inevitable
that a minimum of several hours will be required for this process, at the
very best. Unless there is some kind of a power to prevent removal of
material from the premises, or destruction of material during this time,
the search warrant will almost inevitably be fruitless." Griswold, Crimi-
nal Procedure, 1969-Is It A Means Or An End?, 29 Md. L. Rev. 307, 317
(1969) (emphasis added).
Justice Black posed essentially the same question in his dissent in Vale V.
Louisiana, 399 U. S. 30, 36 (1970). After pointing out that Vale's arrest
just outside his residence was "plainly visible to anyone within the house,
and the police had every reason to believe that someone in the house was
likely to destroy the contraband if the search were postponed," he noted:
"This case raises most graphically the question how does a policeman
protect evidence necessary to the State if he must leave the premises
82-5298-OPINION
14
SEGURA v. UNITED-STATES
ened protection we accord privacy interests is simply not im-
plicated where a seizure of premises, not a search, is at issue.
We hold, therefore, that securing a dwelling, on the basis of
probable cause, to prevent the destruction or removal of evi-
dence while a search warrant is being sought is not itself an
unreasonable seizure of either the dwelling or its contents.
We reaffirm at the same time, however, that, absent exigent
circumstances, a warrantless search-such as that invali-
dated in Vale V. Louisiana, supra, at 33-34-is illegal.
Here, the agents had abundant probable cause in advance
of their entry to believe that there was a criminal drug opera-
tion being carried on in petitioners' apartment; indeed peti-
tioners do not dispute the probable cause determination.
The agents had maintained surveillance over petitioners for
weeks, and had observed petitioners leave the apartment to
make sales of cocaine. Wholly apart from observations made
ed
survemance.
MIVUGANE
1021
aduring that extended surveillance, Rivudalla-Vidal had told
rest on February 13. that petitioneagents after his arrest on February 13, that petitioners had
cocaine earlier that day that he rsupplied him with cocaine earlier that day, that he had not
ne cocaine offered hv Segura ampurchased all of the cocaine offered by Segura, and that
di more cocaine in the anartment
Segura probably had more cocaine in the apartment. On the
basis of this information, a magistrate duly issued a search
warrant, the validity of which was upheld by both the Dis-
trict Court and the Court of Appeals, and which is not before
us now.
In this case, the agents entered and secured the apartment
from within. Arguably, the wiser course would have been to
depart immediately and secure the premises from the outside
by a "stakeout" once the security check revealed that no one
other than those taken into custody were in the apartment.
But the method actually employed does not require a differ-
to get a warrant, allowing the evidence he seeks to be destroyed. The
Court's answer to that question makes unnecessarily difficult the convic-
tion of those who prey upon society." Id., at 41.
82-5298-OPINION
SEGURA v. UNITED STATES
15
ent result under the Fourth Amendment, insofar as the sei-
zure is concerned. As the Court of Appeals held, absent exi-
gent circumstances, the entry may have constituted an illegal
search, or interference with petitioners' privacy interests,
requiring suppression of all evidence observed during the
entry. Securing of the premises from within, however, was
no more an interference with the petitioners' possessory in-
terests in the contents of the apartment than a perimeter
"stakeout." In other words, the initial entry-legal or not-
does not affect the reasonableness of the seizure. Under
either method-entry and securing from within or a perime-
ter stakeout-agents control the apartment pending arrival
of the warrant; both an internal securing and a perimeter
stakeout interfere to the same extent with the possessory in-
terests of the owners.
Petitioners argue that we heighten the possibility of illegal
that
the
illegal
and
entries by a holding that the illegal entry and securing of the
inside
du
not
themselves
render
premises from the inside do not themselves render the sei-
reasonable
than
had
the
agents
staked zure any more unreasonable than had the agents staked out
the
ourside
We
disagree.
In
the apartment from the outside. We disagree. In the first
place, an entry in the absence of exigent circumstances is ille-
gal. We are unwilling to believe that officers will routinely
and purposely violate the law as a matter of course. Second,
as a practical matter, officers who have probable cause and
who are in the process of obtaining a warrant have no reason
to enter the premises before the warrant issues, absent exi-
gent circumstances which, of course, would justify the entry.
United States V. Santana, 427 U.S. 38 (1976); Johnson V.
United States, 333 U.S. 10 (1948). Third, officers who
enter illegally will recognize that whatever evidence they dis-
cover as a direct result of the entry may be suppressed, as it
was by the Court of Appeals in this case. Finally, if officers
enter without exigent circumstances to justify the entry,
they expose themselves to potential civil liability under 42
82-5298-OPINION
16
SEGURA v. UNITED STATES
U. S. C. § 1983. Bivens V. Six Unknown Federal Narcotics
Agents, 403 U. S. 388 (1971).
Of course, a seizure reasonable at its inception because
based upon probable cause may become unreasonable as a re-
sult of its duration or for other reasons. Cf. United States V.
Place, supra. Here, because of the delay in securing the
warrant, the occupation of the apartment continued through-
out the night and into the next day. Such delay in securing a
warrant in a large metropolitan center unfortunately is not
uncommon; this is not, in itself, evidence of bad faith. And
there is no suggestion that the officers, in bad faith, pur-
posely delayed obtaining the warrant. The asserted ex-
planation is that the officers focused first on the task of pro-
cessing those whom they had arrested before turning to the
task of securing the warrant. It is not unreasonable for offi-
cers to believe that the former should take priority, given,
as was the case here, that the proprietors of the apartment
dy of the oncers throughout the pewere in the custody of the officers throughout the period in
question.
lence that the agents in any way exploThere is no evidence that the agents in any way exploited
the
their presence in the apartment; they simply awaited issu-
ance of the warrant. Moreover, more than half of the 19-
hour delay was between 10 p. m. and 10 a. m. the following
day, when it is reasonable to assume that judicial officers are
not as readily available for consideration of warrant requests.
Finally, and most important, we observed in United States V.
Place, supra, at , that
"[t]he intrusion on possessory interests occasioned by a
seizure
can vary both in its nature and extent. The
seizure may be made after the owner has relinquished
control of the property to a third party or
from the
immediate custody and control of the owner."
Here, of course, Segura and Colon, whose possessory inter-
ests were interfered with by the occupation, were under ar-
82-5298-OPINION
SEGURA v. UNITED STATES
17
rest and in the custody of the police throughout the entire
period the agents occupied the apartment. The actual inter-
ference with their possessory interests in the apartment and
its contents was, thus, virtually nonexistent. Cf. United
States V. Van Leeuwen, 397 U. S. 249 (1970). We are not
prepared to say under these limited circumstances that the
seizure was unreasonable under the Fourth Amendment.8
V
Petitioners also argue that even if the evidence was not
subject to suppression as primary evidence "seized" by virtue
of the initial illegal entry and occupation of the premises, it
should have been excluded as "fruit" derived from that illegal
entry. Whether the initial entry was illegal or not is irrele-
vant to the admissibility of the challenged evidence because
there was an independent source for the warrant under
which that evidence was seized. Exclusion of evidence as
of the poisonous tree is not derivative or "fruit of the poisonous tree" is not warranted
independent source
here because of that independent source.
mation on which the warrant was None of the information on which the warrant was secured
or related in any way to the mitiawas derived from or related in any way to the initial entry
into petitioners' apartment; the information came from
sources wholly unconnected with the entry and was known to
the agents well before the initial entry. No information ob-
tained during the initial entry or occupation of the apartment
was needed or used by the agents to secure the warrant. It
is therefore beyond dispute that the information possessed by
the agents before they entered the apartment constituted an
independent source for the discovery and seizure of the evi-
a
Our decision in United States V. Place, 462 U.S. (1983), is not
inconsistent with this conclusion. There, we found unreasonable a 90-
minute detention of a traveler's luggage. But the detention was based
only on a suspicion that the luggage contained contraband, not on probable
cause. After probable cause was established, authorities held the un-
opened luggage for almost three days before a warrant was obtained. It
was not suggested that this delay presented an independent basis for sup-
pression of the evidence eventually discovered.
82-5298-OPINION
18
SEGURA v. UNITED STATES
dence now challenged. This evidence was discovered the
day following the entry, during the search conducted under a
valid warrant; it was the product of that search, wholly unre-
lated to the prior entry. The valid warrant search was a
"means sufficiently distinguishable" to purge the evidence of
any "taint" arising from the entry. Wong Sun, 371 U. S., at
488.9 Had police never entered the apartment, but instead
conducted a perimeter stakeout to prevent anyone from en-
tering the apartment and destroying evidence, the contra-
band now challenged would have been discovered and seized
precisely as it was here. The legality of the initial entry is,
thus, wholly irrelevant under Wong Sun, supra, and
Silverthorne, supra.¹⁰
Our conclusion that the challenged evidence was admissible
is fully supported by our prior cases going back more than a
half century. The Court has never held that evidence is
"fruit of the poisonous tree" simply because "it would not
but for the illegal actions of the have come to light but for the illegal actions of the police."
upra. at 487-488: Rawimos V. See Wong Sun, supra, at 487-488; Rawlings V. Kentucky,
0): Brown V. Illinois 422 U. S. 594850U S. 98 (1980); Brown V. Illinois, 422 U. S. 590, 599
ald souarely conflict with Silverthor (1975). That would squarely conflict with Silverthorne and
our other cases allowing admission of evidence, notwith-
'Our holding in this respect is consistent with the vast majority of fed-
eral courts of appeals which have held that evidence obtained pursuant to a
valid warrant search need not be excluded because of a prior illegal entry.
See, e. g., United States V. Perez, 700 F. 2d 1232 (CA8 1983); United States
V. Kinney, 638 F. 2d 941 (CA6), cert. denied, 452 U. S. 918 (1981); United
States V. Fitzharris, 633 F. 2d 416 (CA5 1980), cert. denied. 451 U. S. 988
(1981); United States V. Agapito, 620 F. 2d 324 (CA2 1980); United States
V. Bosby, 675 F. 2d 1174 (CA11 1982) (dictum). The only federal court of
appeals to hold otherwise is the Ninth Circuit. See United States V. Lo-
mas, 706 F. 2d 886 (1983); United States V. Allard, 634 F. 2d 1182 (1980).
10 It is important to note that the dissent stresses the legal status of the
agents' initial entry and occupation of the apartment; however, this case
involves only evidence seized in the search made subsequently under a
valid warrant. Implicit in the dissent is that the agents' presence in the
apartment denied petitioners some legal "right" to arrange to have the in-
criminating evidence concealed or destroyed.
82-5298-OPINION
SEGURA v. UNITED STATES
19
standing a prior illegality, when the link between the illegal-
ity and that evidence was sufficiently attenuated to dissipate
the taint. By the same token, our cases make clear that evi-
dence will not be excluded as "fruit" unless the illegality is at
least the "but for" cause of the discovery of the evidence.
Suppression is not justified unless "the challenged evidence is
in some sense the product of illegal governmental activity."
United States V. Crews, 445 U. S., at 471. The illegal entry
into petitioners' apartment did not contribute in any way to
discovery of the evidence seized under the warrant; it is
clear, therefore, that not even the threshold "but for" re-
quirement was met in this case.
The dissent contends that the initial entry and securing of
the premises are the "but for" causes of the discovery of the
evidence in that, had the agents not entered the apartment,
but instead secured the premises from the outside, Colon or
her friends if alerted, could have removed or destroyed
re the warrant issued. While the the evidence before the warrant issued. While the dissent
soning. petitioners 00 not press membraces this "reasoning," petitioners do not press this argu-
of Appeals rejected this argument ment. The Court of Appeals rejected this argument as "pru-
and because it rested on "wholl dentially unsound" and because it rested on "wholly spec-
ulative assumptions." Among other things, the Court of
Appeals suggested that, had the agents waited to enter the
apartment until the warrant issued, they might not have de-
cided to take Segura to the apartment and thereby alert Co-
lon. Or, once alerted by Segura's failure to appear, Colon
might have attempted to remove the evidence, rather than
destroy it, in which event the agents could have intercepted
her and the evidence.
We agree fully with the Court of Appeals that the District
Court's suggestion that Colon and her cohorts would have re-
moved or destroyed the evidence was pure speculation. Even
more important, however, we decline to extend the exclu-
sionary rule, which already exacts an enormous price from
society and our system of justice, to further "protect" crimi-
nal activity, as the dissent would have us do.
82-5298-OPINION
20
SEGURA v. UNITED STATES
It may be that, if the agents had not entered the apart-
ment, petitioners might have arranged for the removal or de-
struction of the evidence, and that in this sense the agents'
actions could be considered the "but for" cause for discovery
of the evidence. But at this juncture, we are reminded of
Justice Jackson's warning that "[s]ophisticated argument
may prove a causal connection between information obtained
through [illegal conduct] and the Government's proof," and
his admonition that the courts should consider whether "[a]s
a matter of good sense
such connection may have become
so attenuated as to dissipate the taint." Nardone, 308
U. S., at 341. The essence of the dissent is that there is
some "constitutional right" to destroy evidence. This con-
cept defies both logic and common sense.
VI
We agree with the Court of Appeals that the cocaine, cash
records and ammunition were properly admitted into evi-
the indoment is affirmed.
dence. Accordingly, the judgment is affirmed.
If is SO ordered.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
No. 82-5298
ANDRES SEGURA AND LUZ MARINA COLON,
PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
idealy J. 12041
[July 5, 1984]
IS. with whom JUSTICE BRENNAN. JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUS-
hd JUSTICE BLACKMUN ioin dissenTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.
of the Fourth Amendment issues Correct analysis of the Fourth Amendment issues raised
by this case requires, first, a precise identification of the two
constitutional violations that occurred, and second, an ex-
planation of why a remedy for both is appropriate. While I
do not believe that the current record justifies suppression of
the challenged evidence, neither does it justify affirmance of
petitioners' convictions. We must consider the substantial
contention, supported by the findings of the District Court
and left unaddressed by the opinion of this Court, that the
authorities' access to the evidence introduced against peti-
tioners at trial was made possible only through exploitation
of both constitutional violations. Because I believe that con-
tention must be addressed before petitioners' convictions are
finally affirmed, I would remand for further proceedings.
The Court's disposition, I fear, will provide government
agents with an affirmative incentive to engage in unconstitu-
tional violations of the privacy of the home. The Court's dis-
position is, therefore, inconsistent with a primary purpose of
the Fourth Amendment's exclusionary rule-to ensure that
all private citizens-not just these petitioners-have some
meaningful protection against future violations of their
rights.
82-5298-DISSENT
2
SEGURA v. UNITED STATES
I
The events that occurred on February 12 and 13, 1981,
were the culmination of an investigation of petitioners that
had been underway for over two weeks. On the evening of
February 12, agents of the New York Drug Enforcement
Task Force arrested Rivadulla and Parra, who told them that
Segura probably had cocaine in his apartment. At that
point, the agents concluded that they had probable cause to
search petitioners' apartment, and contacted the United
States Attorney's office. An Assistant United States Attor-
ney informed the agents that at that hour, 6:30 p. m., it was
too late to obtain a search warrant, and advised them instead
to go to the apartment, arrest Segura, and "secure the
premises" pending the issuance of a warrant.¹ The agents
arrived at the apartment about an hour later and positioned
escape. where they could obser themselves on a fire escape, where they could observe any-
iving
the apartment. They also one entering or leaving the apartment. They also put their
but heard nothing.² After three hears to the door, but heard nothing.2 After three hours of
THE CHIEF JUSTICE seems to think that this problem was caused by
the unavailability of a magistrate to issue a warrant at this hour, ante, at
16. However, as the Government candidly admits, the fault here lies not
with the judiciary, but with the United States Attorney's office for failing
to exercise due diligence in attempting to procure a warrant. One of the
agents testified that the Assistant United States Attorney told him only
that "perhaps a Magistrate could not be found at that particular time in the
evening." Tr. 154 (emphasis supplied). The Assistant United States At-
torney testified that he did not even attempt to locate a magistrate or ob-
tain a search warrant. Tr. 441-442. As the Government concedes in its
brief:
"It is not clear why a greater effort was not made to obtain a search war-
rant when the officers first sought one, and we do not condone the failure
to do so
We note that, subsequent to the events in this case, the
United States Attorney circulated an internal memorandum reemphasizing
that search warrants should be sought when at all possible, regardless of
the hour, in order to avoid the need for warrantless entries to secure
premises." Brief for the United States 40, n. 23.
2 Based on the information they had been given prior to their arrival at
the apartment. the agents believed. correctly as it turned out, that Segura
was not in the apartment. Tr. 394.
82-5298-DISSENT
SEGURA v. UNITED STATES
3
waiting, the agents left their perch and went outside the
building, where they continued waiting for Segura to show
up. The District Court described what followed:
"Around 11:15 p. m. Segura appeared, and as he be-
gan to enter the locked door at the lobby, he was appre-
hended, and placed in handcuffs under arrest. The
agents, led by Shea, informed him that they wanted to
go upstairs to 3D, or in that apartment. Forcibly bring-
ing him to the third floor, the agents began down the
hallway, at which point Segura again resisted. Shea
again forced him down the hallway to the door of 3D, an
apartment which is located in the rear of the building,
with no view of the front of the building where the arrest
took place. Shea knocked on the door of 3D, with Se-
gura standing, handcuffed, in front of him. Luz Colon,
hea at the time as such, opened the dounknown to Shea at the time as such, opened the door.
without
Detective Shea, without more, walked into the apart-
дта in custody. He was then followed ment with Segura in custody. He was then followed by
ents, and five minutes later, by Palumitwo other agents, and five minutes later, by Palumbo.
hur
any
other
agent
Neither Shea nor any other agent had an arrest warrant,
or a search warrant. Nor did any of the officers ask for
or receive consent to enter apartment 3D." App. 10-11.
The agents arrested Colon and three other persons found
in the apartment. Colon was unknown to the agents at the
time.³ The agents made a cursory search of the apartment
and saw various items of narcotics paraphanalia in plain
view. The agents left that evidence-the "pre-warrant evi-
dence"-in the apartment, but they took the arrestees to
headquarters.
At least two of the agents spent the night in the apartment
and remained in it thoughout the following day while their
colleagues booked the arrestees and presumably persevered
in their efforts to obtain a warrant to search the apartment.
³Tr. 366, 392.
+ However, none of this evidence could be seen until after the agents
had entered the apartment. Tr. 405.
82-5298-DISSENT
4
SEGURA v. UNITED STATES
Finally, at 6 p. m. on February 13, the remaining agents
were informed that a search warrant had just been issued,
and at that point they conducted a thorough search. The
District Court concluded: "There was thus a lapse of some
18-20 hours from the entry into the apartment to the execu-
tion of the search warrant, during which time the officers re-
mained inside the apartment and in complete control of it."
App. 11. Upon searching the apartment the agents found
one kilo of cocaine, over $50,000, several rounds of .38 caliber
ammunition, and records of narcotics transactions.
II
The Court frames the appropriate inquiry in this case as
whether the evidence obtained when the search warrant was
executed was a "fruit" of illegal conduct. Ante, at 7-8. As
at inquiry. the illegal conduct supredicate to that inquiry, the illegal conduct must, of
course, be identified.
urt found that no exigent. circumst The District Court found that no exigent circumstances
initial warrantiess justified the agents' initial warrantless entry into petitioners'
apartment. App. 11-13. The Court of Appeals affirmed
this finding, and the Government did not seek review of it by
this Court. Thus, it is uncontested that the warrantless en-
try of petitioners' apartment was unconstitutional. It is
equally clear that the subsequent 18-20 hour occupation of
the apartment was independently unconstitutional for two
separate reasons.
First, the occupation was an unreasonable "search" within
the meaning of the Fourth Amendment A "search" for pur-
poses of the Fourth Amendment occurs when a reasonable
⁵In Vale V. Louisiana, 399 U.S. 30 (1970), we held that absent a de-
monstrable threat of imminent destruction of evidence, the authorities may
not enter a residence in order to preserve that evidence without a warrant.
See also United States V. Jeffers, 342 U. S. 48, 51-52 (1951); McDonald V.
United States, 335 U. S. 451, 454-455 (1948); Johnson V. United States,
333 U. S. 10. 13-15 (1948). The illegality is even more plain in this case
because the entry was effected by force late at night.
82-5298-DISSENT
SEGURA v. UNITED STATES
5
expectation of privacy is infringed.5 Nowhere are expecta-
tions of privacy greater than in the home. As the Court has
repeatedly noted, "physical entry of the home is the chief evil
against which the wording of the Fourth Amendment is di-
rected." United States V. United States District Court, 407
U. S. 297, 313 (1972).1 Of course, the invasion of privacy oc-
casioned by a physical entry does not cease after the initial
entry. In Mincey V. Arizona, 437 U. S. 385 (1978), we held
that although the pólice lawfully entered Mincey's home to
arrest him, the Constitution forbade them from remaining in
the home and searching it. The Court reasoned that despite
the lawful initial entry, Mincey retained a constitutionally
protected privacy interest in his home that could not be in-
fringed without a warrant. See id., at 390-391. Similarly,
in Chimel V. California, 395 U. S. 752 (1969), we could "see
noreason why, simply because some interference with an in-
and freedom OI movement has adividual's privacy and freedom of movement has lawfully
intrusions should taken place, further intrusions should automatically be al-
absence of a warrant that the lowed despite the absence of a warrant that the Fourth
otherwise require 10 at 76Amendment would otherwise require." Id., at 766-767,
n.
12.8 Here, by remaining in the home after the initial en-
See Oliver V. United States, 466 U.S.
,
(1984); Illinois V.
Andreas, 463 U. S.
,
(1983); United States V. Knotts, 460 U. S.
(1983); Smith V. Maryland, 442 U. S. 735, 739-741 (1979); Terry
V. Ohio, 392 U. S. 1, 9 (1968).
'See also, e. g., Welsh V. Wisconsin, 466 U.S.
(1984); Michi-
gan V. Clifford, 464 U. S.
,
(1984) (plurality opinion); Steagald V.
United States, 451 U. S. 204, 212 (1981); Payton V. New York, 445 U.S.
573, 583-590 (1980); Coolidge V. New Hampshire, 403 U. S. 443, 481 (1971);
McDonald V. United States, 335 U. S. 451, 455-456 (1948); Johnson V.
United States, 333 U. S. 10, 13-14 (1948).
$See also 395 U. S., at 764-765:
"It is argued in the present case that it is 'reasonable' to search a man's
house when he is arrested in it. But that argument is founded on little
more than a subjective view regarding the acceptability of certain sorts of
police conduct, and not on considerations relevant to Fourth Amendment
interests. Under such an unconfined analysis, Fourth Amendment pro-
82-5298-DISSENT
6
SEGURA v. UNITED STATES
try, the agents exacerbated the invasion of petitioners' pro-
tected privacy interests. Even assuming the most innocent
of motives, the agents' occupation of petitioners' living quar-
ters inevitably involved scrutiny of a variety of personal ef-
fects throughout the apartment.⁹ Petitioners' privacy inter-
ests were unreasonably infringed by the agents' prolonged
occupation of their home. THE CHIEF JUSTICE simply ig-
nores this point, assuming that there is no constitutional dis-
tinction between surveillance of the home from the outside
and physical occupation from the inside. THE CHIEF Jus-
TICE'S assumption is, of course, untenable; there is a funda-
mental difference when there is a
"breach of the entrance to an individual's home. The
Fourth Amendment protects the individual's privacy in a
variety of settings. In none is the zone of privacy more
1 than when-bounded by the unambiguoclearly defined than when bounded by the unambiguous
ensions
U1
all
individual's home zophysical dimensions of an individual's home-a zone
S roots in clear and specific constitutionwhich finds its roots in clear and specific constitutional
ght OT the people in secure their terms: "The right of the people to be secure in their
houses
shall not be violated."
Payton V. New
York, 445 U. S. 573, 589 (1980).
Second, the agents' occupation was also an unreasonable
"seizure" within the meaning of the Fourth Amendment. A
"seizure" occurs when there is some meaningful interference
with an individual's possessory interests. 10 There can be no
doubt here that petitioners' possessory interests with respect
tection in this area would approach the evaporation point. It is not easy to
explain why, for instance, it is less subjectively 'reasonable' to search
a man's house when he is arrested on his front lawn-or just down the
street-than it is when he happens to be in the house at the time of arrest."
9 At oral argument, the Government conceded that the agents' occupa-
tion of the apartment constituted a "continuing search" for exactly this rea-
son. Transcript of Oral Arg. 27, 31.
"See United States V. Karo, ante, at ; United States V. Jacobsen,
466 U.S.
,
(1984); United States V. Place, 462 U. S.
(1983);
id., at
(BRENNAN, J., concurring in the result); Texas V. Brown, 460
U.S.
(1983) (STEVENS, J., concurring in the judgment).
82-5298-DISSENT
SEGURA v. UNITED STATES
7
to their apartment were subject to meaningful governmental
interference. The agents not only excluded petitioners from
access to their own apartment, and thereby prevented them
from exercising any possessory right at all to the apartment
and its contents, but they also exercised complete dominion
and control over the apartment and its contents. 11 Our cases
virtually compel the conclusion that the contents of the apart-
ment were seized. We have held that when the police take
custody of a person, they concomittantly acquire lawful cus-
tody of his personal effects, see Illinois V. Lafayette, 462
U.S.
,
- (1983); United States V. Edwards, 415 U. S.
800 (1975); United States V. Robinson, 414 U. S. 218 (1974);
and when they take custody of a car, they are also in lawful
custody of its contents, see South Dakota V. Opperman, 428
U. S. 364 (1976). Surely it follows that when the authorities
take custody of an apartment they also take custody of its
contents.
constitutionally unreasonable. Evanis seizure was constitutionally unreasonable. Even a
at its inception can become unreasseizure reasonable at its inception can become unreasonable
tion. United States V. Place 462because of its duration. United States V. Place, 462 U.S.
,
(1983). Even if exigent circumstances justified
the entry into and impoundment of the premises pending a
warrant-and no one even argues that such circumstances
existed-the duration of the seizure would nevertheless have
been unreasonable. While exigent circumstances may jus-
tify police conduct that would otherwise be unreasonable
11 While Segura was lawfully in custody during this period, Colon and
her three companions were not. They were unknown to the agents prior
to the illegal entry and, as the District Court noted, would have been able
to remain in the apartment free from governmental interference had the
unlawful entry not occurred.
"THE CHIEF JUSTICE's parsimonious approach to Fourth Amendment
rights is vividly illustrated by the fact that, as though he were preparing
an adversary's brief, he is unwilling even to acknowledge explicitly that the
apartment and its contents were seized, but only "assumes" that was the
case. Ante, at 9.
82-5298-DISSENT
8
SEGURA v. UNITED STATES
if undertaken without a warrant, such conduct must be
"strictly circumscribed by the exigencies which justify its in-
tiation," Terry V. Ohio, 392 U.S. 1, 25-26 (1968). 13 The
cases THE CHIEF JUSTICE cites, ante, at 10-14, for the prop-
osition that the Government may impound premises for the
amount of time necessary to procure a warrant thus have no
application to this case whatsoever.14 There is no contention
that a period of 18-20 hours was even remotely necessary to
procure a warrant. The contrast between the 90 minute du-
ration of the seizure of a piece of luggage held unreasonable
in Place and the 18-20 hour duration of the seizure of the
apartment and its contents in this case graphically illustrates
the unreasonable character of the agents' conduct. More-
over, unlike Place, which involved a seizure lawful at its in-
ception, this seizure was constitutionally unreasonable from
the moment it began. It was conducted without a warrant
of exigent circumstances. 15 It handeim the absence of exigent circumstances. 15 It has been
ST Chimel V. Cantorma. 395 U. clearosince at least Chimel V. California, 395 U.S. 752
07011. 437 U. S. 385. 393 (1978): G M. Leasing "See Mincey V. Arizona, 437 U. S. 385, 393 (1978); G. M. Leasing Corp.
V. United States, 429 U. S. 338, 358-359 (1977); Vale V. Louisiana, 399
U. S. 30, 34-35 (1970); Chimel V. California, 395 U. S. 752, 762-763
(1969).
"THE CHIEF JUSTICE's misuse of Place, ante, at 17, n. 8, is quite re-
markable. He suggests that Place approved the almost three-day deten-
tion of Place's luggage before a warrant was obtained, when in fact the
Court had no occasion to reach that issue because it held that the initial 90-
minute detenion of the luggage pending a "sniff test" using a trained nar-
cotics-detecting dog was unreasonable. See 462 U. S., at - Other
than this reference to Place, THE CHIEF JUSTICE'S diligent search for sup-
port for his holding has produced nothing but dissenting opinions and a law
review article. See ante, at 13-14, n. 7. Dean Griswold's article, how-
ever, did not even purport to answer the question presented by this case.
See Griswold, Criminal Procedure, 1969-Is it a Means or an End?, 29 Md.
L. Rev. 307, 317 (1969).
"Since these premises were impounded "from the inside," I assume im-
poundment would be permissible even absent exigent circumstances when
it occurs "from the outside"-when the authorities merely seal off premises
pending the issuance of a warrant but do not enter.
82-5298-DISSENT
SEGURA v. UNITED STATES
9
(1969), that the police may neither search nor seize the con-
tents of a home without a warrant. 16 There is simply no
basis for concluding that this 18-20 hour warrantless invasion
of petitioners' home complied with the Fourth Amendment.
Because the agents unreasonably delayed in seeking judicial
authorization for their seizure of petitioners' apartment, that
seizure was unreasonable.
Nevertheless, in what I can only characterize as an aston-
ishing holding, THE CHIEF JUSTICE, joined by JUSTICE
O'CONNOR, concludes that the 18-20 hour seizure of the
apartment was not unreasonable. He advances three rea-
sons for that conclusion, none of which has any merit.
First, he seeks to justify the delay because "the officers fo-
cused first on the task of processing those whom they had ar-
rested before turning to the task of securing the warrant."
Ante, at 16. But there is no evidence that this task pre-
ties: indeed. since the arrest of thesented any difficulties; indeed, since the arrest of the occu-
pants itself was unconstitutional, it is truly ironic that THE
ses one wrong to justify another CHIEF JUSTICE uses one wrong to justify another. Of
e. the District Court expressiv fourgreater significance, the District Court expressly found that
the length of the delay was unreasonable and that the Gov-
ernment had made no attempt to justify it; that finding was
upheld by the Court of Appeals and in this Court the Govern-
ment expressly concedes that the delay was unreasonable. 17
16 See also Steagald V. United States, 451 U. S. 204 (1981); Payton V.
New York, 445 U. S. 573 (1980); Mincey V. Arizona, 437 U. S. 385 (1978);
Vale V. Louisiana, 399 U. S. 30 (1970). In fact, except for an aberrational
warrantless "search incident to an arrest" exception recognized in United
States V. Rabinowitz, 339 U. S. 56 (1950 and repudiated by Chimel, this
rule has been settled since Agnello V. United States, 269 U. S. 20, 32-33
(1925). See also Trupiano V. United States, 334 U. S. 699 (1948).
IT The only explanation the Government has offered for the delay is that
most of February 13 was taken up with "processing" the arrests. Brief for
the United States 5, n. 4. At oral argument, the Government conceded
that the delay was unreasonable. Transcript of Oral Arg. 27. At the sup-
pression hearing in the District Court, one of the agents testified that the
warrant application was not even presented to a magistrate until 5:00 p. m.
82-5298-DISSENT
10
SEGURA v. UNITED STATES
Second, THE CHIEF JUSTICE suggests that it is relevant
that the officers did not act in "bad faith." Ante, at 2, 16.
This is done despite the fact that there is no finding as to
whether the agents acted in good or bad faith; the reason is
that the litigants have never raised the issue. More impor-
tant, this Court has repeatedly held that a police officer's
good or bad faith in undertaking a search or seizure is irrele-
vant to its constitutional reasonableness,¹⁸ and does so again
today.19
Finally, and "most important" to his conclusion, THE
CHIEF JUSTICE suggests that there was no significant inter-
ference with petitioners' possessory interests in their apart-
ment because they were in custody anyway. Ante, at 16-17.
The cases are legion holding that a citizen retains a protected
possessory interest in his home and the effects within it
which may not be infringed without a warrant even though
istody.
Mincey
and
are that person is in custody. Mincey and Chimel are but two
defendents in instances of that general rule-the defendants in both cases
et both were held to have protectsweresin custody, yet both were held to have protected pos-
I their homes and the effects withisessory interests in their homes and the effects within them
fringed without WHITERE.
Even
that could not be infringed without a warrant. Even when a
person is in custody after an arrest based on probable cause,
he still, of course, owns his house and his right to exclude
others-including federal narcotics agents-remains invio-
late. What is even more strange about THE CHIEF Jus-
TICE's conclusion is that it permits the authorities to benefit
on February 13. He explained: "Well, it's very hard to get secretarial
services today." Tr. 162-163. The Assistant United States Attorney re-
sponsible for procuring the warrant testified similarly. Tr. 445. The at-
torney did not explain why he did not simply write out the two-page appli-
cation by hand, or seek a telephonic warrant under Fed. Rule Crim. Proc.
41(c)(2). The District Court found that the delay was unreasonable, App.
15-16, a finding that the Court of Appeals did not disturb. The Govern-
ment does not challenge that finding in this Court.
18 See Terry V. Ohio, 392 U. S. 1, 22 (1968); Beck V. Ohio, 379 U. S. 87,
97 (1964); Henry V. United States, 361 U. S. 98, 102 (1961).
19 United States V. Leon, ante, at 16, n. 13.
82-5298-DISSENT
SEGURA v. UNITED STATES
11
from the fact that they had unlawfully arrested Colon. Co-
lon was in her own home when she was arrested without a
warrant. That was unconstitutional. 20 If the agents had de-
cided to obey the Constitution and not arrest Colon, then she
would not have "relinquished control" over the property and
presumably it would have been unreasonable for the agents
to have remained on the premises under THE CHIEF JUS-
TICE's analysis. However, because the agents conducted an
unlawful arrest in addition to their previous unlawful entry,
an otherwise unreasonable occupation becomes "reasonable."
THE CHIEF JUSTICE's approach is as reasonable as was the
agents' conduct. Only in that sense does it achieve its
purpose.
Thus, on the basis of the record evidence and the findings
of the District Court, it is clear that the 18-20 hour occupa-
tion of petitioners' apartment was a second independent vi-
Amendment Not only was it tiolation of the Fourth Amendment. Not only was it the fruit
entry into that apartment, DUE of the initial illegal entry into that apartment, but it also
isonable search and seizure of neconstituted an unreasonable search and seizure of the apart-
Court concluded that both ment The District Court concluded that both violations
should be remedied by suppression of all of the evidence
found in the apartment. The Court of Appeals agreed that
suppression of the prewarrant evidence was the proper rem-
edy for the first violation but prescribed no remedy for the
second. THE CHIEF JUSTICE does not agree that there was
a second violation, and the Court concludes that the uncon-
stitutional conduct that did occur was neutralized by the ulti-
mate issuance of a valid warrant. In reaching that conclu-
sion the Court correctly recognizes that the law requires
suppression of the evidence if it was "come at by exploitation
of [the initial] illegality" instead of "by means sufficiently
distinguishable to be purged of the primary taint." Ante, at
8 (quoting Wong Sun V. United States, 371 U.S. 471, 484
20 Welsh V. Wisconsin, 466 U.S. (1984); Payton V. New York, 445
U.S. 573 (1980).
82-5298-DISSENT
12
SEGURA v. UNITED STATES
(1963)). The Court fails, however, to discuss the reason for
that rule or how it should apply to the facts of this case.
III
Every time a court holds that unconstitutionally obtained
evidence may not be used in a criminal trial it is acutely
aware of the social costs that such a holding entails." Only
the most compelling reason could justify the repeated imposi-
tion of such costs on society. That reason, of course, is to
prevent violations of the Constitution from occurring.22
"Justice Holmes commented on this dilemma:
"We must consider the two objects of desire, both of which we cannot have,
and make up our minds which to choose. It is desirable that criminals
should be detected, and to that end that all available evidence should be
used. It also is desirable that the Government should not itself foster and
pay for other crimes, when they are the means by which the evidence is to
S its officers for having got evidence by crbe obtained. If it pays its officers for having got evidence by crime I do
not see why it may not as well pay them for getting it in the same way, and
ance to protestations of disapproval if it Hocan attach no importance to protestations of disapproval if it knowingly
that
in
pay
for
accepts and pays and announces that in future it will pay for the fruits.
2 We have to choose, and for my part I think it a lesser evil that some crimi-
nals should escape than that the Government should play an ignoble part."
Olmstead V. United States, 277 U. S. 438, 470 (1928) (dissenting opinion).
"Justice Stewart has written that
"the Framers did not intend the Bill of Rights to be no more than unen-
forceable guiding principles-no more than a code of ethics under an honor
system. The proscriptions and guarantees in the amendments were in-
tended to create legal rights and duties.
"The Bill of Rights is but one component of our legal system-the one
that limits the government's reach. The primary responsibility for enforc-
ing the Constitution's limits on government, at least since the time of
Marbury V. Madison, has been vested in the judicial branch. In general,
when law enforcement officials violate a person's Fourth Amendment
rights, they do so in attempting to obtain evidence for use in criminal pro-
ceedings. To give effect to the Constitution's prohibition against illegal
searches and seizures, it may be necessary for the judiciary to remove the
incentive for violating it. Thus, it may be argued that although the Con-
stitution does not explicitly provide for exclusion, the need to enforce the
Constitution's limits on government-to preserve the rule of law-requires
an exclusionary rule." Stewart, The Road to Mapp V. Ohio and Beyond:
82-5298-DISSENT
SEGURA v. UNITED STATES
13
As the Court has repeatedly stated, a principal purpose of
the exclusionary rule is to deter violations of the Fourth
Amendment. See, e. g., Stone V. Powell, 428 U. S. 465, 486
(1976); United States V. Janis, 428 U. S. 433, 446-447 (1976);
United States V. Peltier, 422 U. S. 531, 536-539 (1975);
United States V. Calandra, 414 U. S. 338, 347-348 (1974).
"The rule is calculated to prevent, not to repair. Its
purpose is to deter-to compel respect for the constitu-
tional guaranty in the only effectively available way-by
removing the incentive to disregard it." Elkins V.
United States, 364 U. S. 206, 217 (1960).
The deterrence rationale for the exclusionary rule some-
times, but not always, requires that it be applied to the indi-
rect consequences of a constitutional violation. If the Gov-
ernment could utilize evidence obtained through exploitation
it would retain an incentive In enofoillegal conduct, it would retain an incentive to engage in
To forbid the arrect use OI that conduct. "To forbid the direct use of methods thus
illegal] but to put no curb on their characterized [as illegal] but to put no curb on their full indi-
aly invite the very methods deemed rectouse would only invite the very methods deemed 'incon-
sistent with ethical standards and destructive of personal lib-
erty." Nardone V. United States, 308 U. S. 338, 340 (1939).
We have not, however, mechanically applied the rule to
every item of evidence that has a causal connection with
police misconduct. "The notion of 'dissipation of the taint'
attempts to mark the point at which the detrimental conse-
quences of illegal police conduct become SO attenuated that
the deterrent effect of the exclusionary rule no longer justi-
fies its cost." Brown V. Illinois, 422 U. S. 590, 609 (1975)
(POWELL, J., concurring in part).
The Origins, Development and Future of the Exclusionary Rule, 83 Colum.
L. Rev. 1365, 1383-1384 (1983).
3See 3 W. LaFave, Search and Seizure § 11.4(a) (1978); Amsterdam,
Search, Seizure, and Section 2255: A Comment, 112 U. Pa. L. Rev. 378,
388-390 (1964); Pitler, "The Fruit of the Poisonous Tree" Revisited and
Shepardized, 56 Calif. L. Rev. 579, 586-589 (1968).
82-5298-DISSENT
14
SEGURA v. UNITED STATES
This point is well illustrated by our cases concerning the
use of confessions obtained as the result of unlawful arrests.
In Wong Sun V. United States, 371 U. S. 471 (1963), we re-
jected a rule that any evidence that would not have been
obtained but for the illegal actions of the police should be sup-
pressed. See id., at 487-488, 491. Yet in Brown V. Illi-
nois, 422 U. S. 590 (1975), while continuing to reject a "but-
for" rule, see id., at 603, we held that the taint of an unlawful
arrest could not be purged merely by warning the arrestee of
his right to remain silent and to consult with counsel as re-
quired by Miranda V. Arizona, 384 U. S. 436 (1966). We
explained:
"If Miranda warnings, by themselves, were held to
attenuate the taint of an unconstitutional arrest, regard-
less of how wanton and purposeful the Fourth Amend-
the effect of the exclusionary rule worment violation, the effect of the exclusionary rule would
diluted. Arrests made without be substantially diluted. Arrests made without warrant
bable cause. for questioning or investior without probable cause, for questioning or "investiga-
encouraged by the knowledge that tion,' would be encouraged by the knowledge that evi-
dence derived therefrom could well be made admissible
at trial by the simple expedient of giving Miranda warn-
ings. Any incentive to avoid Fourth Amendment viola-
tions would be eviscerated by making the warnings, in
effect, a 'cure-all,' and the constitutional guarantee
against unlawful searches and seizures could be said to
be reduced to 'a form of words." 422 U. S., at 602-603
(citation and footnote omitted)
These holdings make it clear that taint questions do not de-
pend merely on questions of causation; causation is a neces-
sary but not a sufficient condition for exclusion. In addition,
it must be shown that exclusion is required to remove the in-
centive for the police to engage in the unlawful conduct.
When it is, exclusion is mandated if the Fourth Amendment
is to be more than "a form of words."
82-5298-DISSENT
SEGURA v. UNITED STATES
15
IV
The Court concludes that the evidence introduced against
petitioners at trial was obtained from a source that was "in-
dependent" of the prior illegality-the search warrant. The
Court explains that since the police had a legal basis for ob-
taining and executing the search warrant, the fruits of the
authorized search were not produced by exploitation of the
prior illegality. Ante, at 17-18. There are significant an-
alytical difficulties lurking in the Court's approach. First,
the Court accepts the distinction between the evidence ob-
tained pursuant to the warrant and the evidence obtained
during the initial illegal entry. Ante, at 17-18; see also ante,
at 15 (opinion of BURGER, C. J.). I would not draw a distinc-
tion between the pre-warrant evidence and the post-warrant
evidence. The warrant embraced both categories equally
there is no and if there had been no unlawful entry, there is no more rea-
son to believe that the evidence in plain view would have re-
tment and would have been obtainednained in the apartment and would have been obtained when
executed than the evidence that the warrant was executed than the evidence that was con-
an
incrifealed. The warrant provided an "independent" justification
for seizing all the evidence in the apartment-that in plain
view just as much as the items that were concealed. The
"plain view" items were not actually removed from the apart-
ment until the warrant was executed;24 thus there was no
more interference with petitioners' possessory interest in
those items than with their interest in the concealed items.
If the execution of a valid warrant takes the poison out of the
hidden fruit, I should think that it would also remove the
taint from the fruit in plain view.25
24 Tr. 259.
25 I recognize that the legality of the seizure of the evidence that was in
plain view when the officers entered is not before us, but I find it necessary
to discuss it since it affects the analysis of the issue that is in dispute. THE
CHIEF JUSTICE does SO as well; he relies on the deterrent effect of the sup-
pression of the evidence found in plain view in responding to petitioners'
82-5298-DISSENT
16
SEGURA v. UNITED STATES
Second, the Court's holding is inadequate to resolve the
claims raised by petitioners. The Court states that the
fruits of the judicially authorized search were untainted be-
cause "[n]o information obtained during the initial entry or
occupation of the apartment was needed or used by the
agents to secure the warrant." Ante, at 17. That is suffi-
cient to dispose only of a claim that petitioners do not make-
that the information which led to the issuance of the search
warrant was tainted. It does not dispose of the claim that
petitioners do make-that the agents' access to the fruits of
the authorized search, rather than the information which led
to that search, was a product of illegal conduct. On this
question, the length of the delay in obtaining the warrant is
surely relevant.
If Segura had not returned home at all that night, or dur-
18
brobable
UNITED
ing the next day, it is probable that the occupants of the
ve become concerned and might apartment would have become concerned and might at least
records of their illegal transactionshave destroyed the records of their illegal transactions, or re-
vidence
If
moved some of the evidence. If one of the occupants had left
aken evidence with him or her durthe apartment and taken evidence with him or her during the
18-20 hour period prior to the execution of the search
warrant, then obviously that evidence would not have been
accessible to the agents when the warrant finally was exe-
cuted.26 The District Court concluded that there was a pos-
sibility that the evidence's availablilty when the warrant was
executed hinged solely on the illegal impoundment. It
found: "The evidence would not inevitably have been discov-
argument that the Court of Appeals' decision will encourage illegal entries
in the course of securing premises from the inside. Ante, at 15.
25 It is by no means impossible that at least one of the occupants might
have been able to leave the apartment. None of them was known to the
agents, and if the agents were located outside the apartment building,
they would not have known that a person leaving the building would have
come from petitioners' apartment. There were quite a few apartments on
each floor of the apartment building. Tr. 253. Moreover, as the District
Court noted, the agents could not see petitioners' apartment from their po-
sition in the front of the building.
82-5298-DISSENT
SEGURA v. UNITED STATES
17
ered. In fact, Colon might well have destroyed the evidence
had she not been illegally excluded [from the apartment]."
App. 15. This finding indicates that there is substantial
doubt as to whether all of the evidence that was actually
seized would have been discovered if there had been no illegal
entry and occupation.
The majority insists that the idea that access to evidence is
a relevant consideration is "unsound" because it would "ex-
tend" the exclusionary rule and "further 'protect' criminal ac-
tivity," ante, at 19. However, this very point is far from
novel; it actually has been the long-settled rule. It is implicit
in virtually every case in which we have applied the exclu-
sionary rule. In the seminal case, Weeks V. United States,
232 U. S. 383 (1914), federal agents illegally entered Weeks'
house and seized evidence. The Court ordered the evidence
suppressed precisely because absent the illegality, the agents
obtained accèss to the evidence. Swould never have obtained access to the evidence. See id.,
e recently. in Payton V. New Yorat 393-394. More recently, in Payton V. New York, 445
ve held that suppression was required Se573 (1980), we held that suppression was required be-
vere not authorized to enter the hoauseithe agents were not authorized to enter the house; it
was the Fourth Amendment violation that enabled them to
obtain access to the evidence. Indeed, we have regularly in-
voked the exclusionary rule because the evidence would have
eluded the police absent the illegality. Here, too, if the evi-
dence would not have been available to the agents at the time
they finally executed the warrant had they not illegally en-
tered and impounded petitioners' apartment, then it cannot
27 The element of access, rather than information, is central to virtually
the whole of our jurisprudence under the Warrant Clause of the Fourth
Amendment. In all of our cases suppressing evidence because it was ob-
tained pursuant to a warrantless search, we have focused not on the au-
thorities' lack of appropriate information to authorize the search, but
rather on the fact that that information was not presented to a magistrate.
Thus, suppression is the consequence not of a lack of information, but of
the fact that the authorities' access to the evidence in question was not
properly authorized and hence was unconstitutional.
82-5298-DISSENT
18
SEGURA v. UNITED STATES
be said that the agents' access to the evidence was "independ-
ent" of the prior illegality.
The unlawful delay provides the same justification for sup-
pression as does the unlawful entry: both violations precluded
the possibility that evidence would have been moved out of
the reach of the agents. We approved of exactly that princi-
ple only last Term, in United States V. Place, 462 U.S.
(1983). There, luggage was detained for some 90 minutes
until a trained narcotics detection dog arrived. The dog
then sniffed the luggage, signaled the presence of narcotics, a
warrant was obtained on the strength of the dog's reaction,
and when the warrant was executed, narcotics were discov-
ered. The Court held that while the initial seizure was law-
ful, it became unreasonable because of its duration. Thus,
absent the illegality, the authorities would have had to give
the luggage back to Place, who would have then taken it
nce was obtained in violation OF the away. The evidence was obtained in violation of the Fourth
Amendment because it was the unlawful delay that pre-
€ from disappearing before it couldvented the evidence from disappearing before it could be ob-
orities. That is precisely the ciaintained by the authorities. That is precisely the claim made
by petitioners here.
When it finally does confront petitioners' claim concerning
the relationship between the unlawful occupation of their
apartment and the evidence obtained at the conclusion of that
occupation, ante, at 19-20, the Court rejects it for two rea-
sons. First, it finds the possibility that the evidence would
not have been in the apartment had it not been impounded to
be speculative. However, the District Court found a dis-
tinct, nonspeculative possibility that the evidence would not
have been available to the police had they not entered the
28 Even more recently, in Welsh V. Wisconsin, 466 U.S. (1984), we
again employed this concept. The Court held that police could not justify
under the Fourth Amendment the warrantless arrest of Welsh, who was
suspected of drunk driving, in his own home, "simply because the evidence
might have dissipated while the police obtained a warrant." Id., at
(footnote omitted).
82-5298-DISSENT
SEGURA v. UNITED STATES
19
apartment illegally. The Court is obligated to respect that
finding unless found to be clearly erroneous, which it is not.
Indeed, it is equally speculative to assume that the occupants
of the apartment would not have become concerned enough
to take some action had Segura been missing for 18-20
hours. 29 Second, the Court thinks it "prudentially unsound"
to suppress the evidence, noting a certain irony in extending
the protection of the Constitution simply because criminals
may destroy evidence if given the chance. This analysis con-
fuses two separate issues however, (1) whether the initial en-
try was justified by exigent circumstances; and (2) whether
the discovery of the evidence can be characterized as "inev-
itable" notwithstanding the 18 hour delay. There is no dis-
pute that the risk of immediate destruction did not justify the
entry. The argument petitioners make is not that there was
hreat of destruction of evidence. bisome immediate threat of destruction of evidence, but that
tantial
possibility
that
othere was a substantial possibility that over the course of
seals.
with
which
this
Court
noted
thathe Court of Appeals, with which this Court agrees, noted that the
District Court's ruling depended on "speculative assumptions," such as
that the agents would not have kept the apartment under surveillance af ter
Segura's arrest had they not illegally entered it, that Colon would have de-
stroyed the evidence rather than merely removed it from the apartment,
or that the evidence could have been destroyed unobtrusively. However,
each of these "assumptions" is supported by the evidence. First, the
agents would have had no reason to keep the apartment under surveillance
subsequent to the arrests of all the persons that they had surveilled, Parra,
Rivadulla and Segura. Second, even if Colon had merely removed the evi-
dence from the apartment, there is reason to believe the agents would not
have intercepted her. See n. 26, supra. Third, since the agents were
outside the apartment and would have had no reason to remain on the
scene after Segura's arrest, they would not have been around to notice had
evidence been removed or destroyed unobtrusively. Moreover, even if it
would have been difficult to remove or destroy some of the evidence, such
as the triple-beam scale petitioners owned, that does not mean that all of
the evidence would have remained in the apartment over the course of an
18-20 hour period. The Court of Appeals' assumptions to the contrary are
just as "speculative" as the finding of the District Court.
82-5298-DISSENT
20
SEGURA v. UNITED STATES
18-20 hours at least some of the evidence would have been
removed or destroyed.
For me, however, the controlling question should not be
answered merely on the basis of such speculation, but rather
by asking whether the deterrent purposes of the exclusionary
rule would be served or undermined by suppression of this
evidence. That is the appropriate "prudential" consider-
ation identified in our exclusionary rule cases. The District
Court found that there was a distinct possibility that the evi-
dence was preserved only through an illegal occupation of pe-
titioners' apartment. That possibility provides a sufficient
reason for asking whether the deterrent rationale of the ex-
clusionary rule is applicable to the second constitutional viola-
tion committed by the police in this case.
V
of anniving the exclusionary The importance of applying the exclusionary rule to the po-
S case is underscored by its factsliceTconduct in this case is underscored by its facts. The
of
petitioners' WCC blatan18-20 hour occupation of petitioners' home was blatantly un-
the same time. the law-enforcemeconstitutional At the same time, the law-enforcement jus-
tification for engaging in such conduct is exceedingly weak.
There can be no justification for inordinate delay in securing
a warrant. Thus, applying the exclusionary rule to such con-
duct would impair no legitimate interest in law enforcement.
30 The cases in the lower courts the majority cites in support of its hold-
ing, ante, at 18, n. 9, are plainly distinguishable. In United States V. Pe-
rez, 700 F. 2d 1232, 1237-1238 (CA8 1983), the court remanded for a hear-
ing as to whether the search and seizure authorized by a warrant was
tainted by prior illegality. In United States V. Kinney, 638 F. 2d 941, 945
(CA6), cert. denied, 452 U. S. 918 (1981), the court found no taint, but in
that case there was no occupation of the searched premises prior to obtain-
ing the warrant and hence no claim of the type made here. The same is
true of the other cases the Court cites, United States V. Bosby, 675 F. 2d
1174, 1180-1181 (CA11 1982); United States V. Fitzharris, 633 F. 2d 416
(CA5 1980), cert. denied, 452 U. S. 918 (1981); United States V. Agapito,
620 F. 2d 324. 338 (CA2), cert. denied, 449 U. S. 834 (1980). As the Court
concedes, United States V. Lomas, 706 F. 2d 886 (CA9 1983), and United
States V. Allard, 634 F. 2d 1182 (CA9 1980), are contrary to its holding.
82-5298-DISSENT
SEGURA v. UNITED STATES
21
Moreover, the deterrence rationale of the rule is plainly ap-
plicable. The agents impounded this apartment precisely
because they wished to avoid risking a loss of access to the
evidence within it. Thus, the unlawful benefit they acquired
through the impoundment was not SO "attenuated" as to
make it unlikely that the deprivation of that benefit through
the exclusionary rule would have a deterrent effect. To the
contrary, it was exactly the benefit identified by the District
Court-avoiding a risk of loss of evidence-that motivated
the agents in this case to violate the Constitution. Thus, the
policies underlying the exclusionary rule demand that some
deterrent be created to this kind of unconstitutional conduct.
Yet the majority's disposition of this case creates none.
Under the majority's approach, the agents could have re-
mained indefinitely-impounding the apartment for a week
or a month-without being deprived of the advantage de-
awrut
impounament. we cannot rived-from the unlawful impoundment. We cannot expect
such an approach to prevent similar violations of the Fourth
future.
Amendment in the future.
exclusionary rule should he applieIn my opinion the exclusionary rule should be applied to
both of the constitutional violations to deprive the authorities
of the advantage they gained as a result of their unconstitu-
tional entry and impoundment of petitioners' apartment.
The deterrence rationale of the exclusionary rule requires
suppression unless the Government can prove that the evi-
dence in fact would have remained in the apartment had it
not been unlawfully impounded. The risk of uncertainty as
to what would have happened absent the illegal conduct
posed by the facts of this case should be borne by the party
that created that uncertainty, the Government. That is the
teaching of our exclusionary rule cases. See Taylor V. Ala-
bama, 457 U. S. 687, 690 (1982); Dunaway V. New York, 442
U. S. 200, 218 (1979); Brown V. Illinois, 422 U. S. 590, 604
(1975).
Further proceedings are necessary in this case if petition-
ers' claim is to be properly evaluated. The District Court
82-5298-DISSENT
22
SEGURA v. UNITED STATES
found only that there was a demonstrable possiblity that the
evidence obtained during the execution of the search warrant
would have been destroyed absent the illegal entry and im-
poundment. While this finding is sufficient to establish
prima facie that the Government exploited the illegality by
avoiding a risk of losing the evidence in the apartment, the
existence of a mere possibility cannot be equated with an ulti-
mate finding that such exploitation did in fact occur. The
District Court made no specific finding as to whether the
Government had demonstrated that the evidence obtained
pursuant to the search warrant would have remained in the
apartment had the agents not illegally entered and im-
pounded it. It may be that an evidentiary hearing would be
necessary to supplement the record on this point. Accord-
ingly, I would remand this case to the Court of Appeals with
TO
Instrier
instructions that it be remanded to the District Court for fur-
ther proceedings.
TA
VI
mt. aid not contest The platant Government did not contest the blatant unconstitu-
tionality of the agents' conduct in this case. Nevertheless,
today's holding permits federal agents to benefit from that
conduct by avoiding the risk that evidence would be unavail-
able when the search warrant was finally executed. The ma-
jority's invocation of the "enormous price" of the exclusionary
rule and its stated unwillingess to "protect criminal activity,"
ante, at 19, is the most persuasive support that the Court
provides for its holding. Of course, the Court is quite right
to be ever mindful of the cost of excessive attention to proce-
dural safeguards. But an evenhanded approach to difficult
cases like this requires attention to countervailing consider-
ations as well. There are two that I would stress.
First, we should consider the impact of the Court's holding
on the leaders of the law enforcment community who have
achieved great success in creating the kind of trained, profes-
sional officers who deservedly command the respect of the
communities they serve. The image of the "keystone cop"
82-5298-DISSENT
SEGURA v. UNITED STATES
23
whose skills seldom transcended the ham-handed employ-
ment of the "third degree" is largely a matter of memory for
those of us who lived through the 1920s, 1930s and 1940s.
For a congery of reasons, among which unquestionably is the
added respect for the constitutional rights of the individual
engendered by cases like Miranda V. Arizona, 384 U. S. 436
(1966), and Mapp V. Ohio, 367 U. S. 643 (1961), the profes-
sionalism that has always characterized the Federal Bureau
of Investigation is now typical of police forces throughout the
land. A rule of law that is predicated on the absurd notion
that a police officer does not have the skill required to obtain
a valid search warrant in less than 18 or 20 hours, or that fails
to deter the authorities from delaying unreasonably their at-
tempt to obtain a warrant after they have entered a home, is
demeaning to law enforcment and can only encourage sloppy,
undisciplined procedures.
it's rhetoric cannot disguise the fact Second, the Court's rhetoric cannot disguise the fact that
ferates. but provides an when it not only tolerates, but provides an affirmative incen-
SS and plainly unreasonable and urtiveefor warrantless and plainly unreasonable and unneces-
to the home, the resulting erosion afylintrusions into the home, the resulting erosion of the
sanctity of the home is a "price" paid by the innocent and
guilty alike.³ More than half a century ago, Justice Holmes
31 The words of Justice Jackson that this case calls to my mind are not
those of his Nardone dissent, ante, at 20, but rather those in two of his
other dissents. With respect to the claim that the Fourth Amendment
"protect[s] criminal activity," he wrote: "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
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." Brinegar V. United States, 338 U.S. 160, 181 (1949).
And with respect to the "price" exacted by the exclusionary rule, he wrote:
"[T]he forefathers thought this was not too great a price to pay for that
decent privacy of home, papers and effects which is indispensible to indi-
vidual dignity and self-respect. They may have overvalued privacy, but
82-5298-DISSENT
24
SEGURA v. UNITED STATES
explained why the Government cannot be permitted to bene-
fit from its violations of the Constitution.
"The Government now, while in form repudiating and
condemning the illegal seizure, seeks to maintain its
right to avail itself of the knowledge obtained by that
means which otherwise it would not have had.
"The proposition could not be presented more nakedly.
It is that although of course its seizure was an outrage
the Government now regrets,
the protection of the
Constitution covers the physical possession but not any
advantages that the Government can gain over the ob-
ject of its pursuit by doing the forbidden act
In
our opinion such is not the law. It reduces the Fourth
Amendment to a form of words. The essence of a provi-
sion forbidding the acquisition of evidence in a certain
mereiv evidence SO acquired shall not way is that not merely evidence SO acquired shall not be
Court but that it shan HOL De used au alused before the Court but that it shall not be used at all."
umber Co V. United States, 251 U. Silverthorne Lumber Co. V. United States, 251 U.S.
920) (citation omitted).
385, 391-392 (1920) (citation omitted).
If we are to give more than lip service to protection of
the core constitutional interests that were twice violated in
this case, some effort must be made to isolate and then re-
move the advantages the Government derived from its illegal
conduct.
I respectfully dissent.
I am not disposed to set their command at naught." Harris V. United
States, 331 U. S. 145, 198 (1947).