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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: JGR/Exclusionary Rule (1)\nBox: 24\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\n71 Box 24 - JGR/Exclusionary Rule (1) - Roberts, John G.: Files\nSERIES I: Subject File\nEx clus. Rok\nTHE WHITE HOUSE\nWASHINGTON\nJanuary 4, 1983\nMEMORANDUM FOR T. KENNETH CRIBB, JR.\nASSISTANT COUNSELLOR TO THE PRESIDENT\nFROM:\nJOHN G. ROBERTS are\nASSOCIATE COUNSEL TO THE PRESIDENT\nSUBJECT:\nNew Study on Exclusionary Rule\nI am attaching a recent story and editorial on the new NIJ\nexclusionary rule study, which I mentioned at the last\nSaturday Group meeting at Bruce Fein's. The study shows\nthat the exclusionary rule resulted in the release of 29% of\n05 Angeles felony- drug- arrestees in Los Angeles in one year -- a far\nding 0.4% crywfroms the highly misleading 0.4% figure usually bandied\nbe highly about. Thise studya should be highly useful in the campaign\nclusionary to amend or abolish the exclusionary rule.\nAttachment\nwer 18, 1982\nLA HERALD EXAMINER\nPage Al\nRule errors voided\nout.\nLAPD spokesman Commander\nBowers said the Los Angeles County\n29% of L.A. drug\nWilliam Booth said of the report,\nframple included more than 2,000 felony\n\"It's certainly a sad commentary\nscases.\nRobert Schirn, head of the Organized\ncases, study shows\nthat in one out of three cases\nwhere you've got the narcotics\nCrime and Narcotics Division of the\ndistrict attorney's office, pointed out\nsuspect in one hand and his narcot-\nics in the other hand, someone\nthat a higher percentage of drug-related\nBy Susan Christian\narrests than others are thrown out\nHerald Examiner staff writer\nsays, 'Oh, we have to let him go\nbecause somebody stumbled along\nbecause \"wirtually every narcotics arrest\nthe way and some technicality\nis the result of search and seizure\" -\nNearly 4,000 people arrested in\nwhile other felony cases don't always\nLos Angeles on felony drug\nwasn't followed.\"\ninvolve evidence obtained by search and\ncharges last year were freed with-\nThe report's summary states\nout standing trial because of viola-\nthat the study was \"initiated to\nseizure.\ntions of complex search and seizure\nprovide current information on the\n\"And in other cases, if evidence\nrules, according to a study released\nimpact of the exclusionary rule on\nobtained through search and seizure is\nyesterday.\nstate felony prosecutions.\"\nthrown out, there is other evidence -\nRon Bowers, a deputy district\nsuch as witnesses - to proceed with.\"\nThe survey, by the National\nattorney who helped obtain statis-\nThis (search and seizure laws) is\nInstitute of Justice in Washington,\ntics for the study, said the survey\nsomething I've been upset about for a\nD.C., found that 29 percent of the\nwas done in California because of\nlong time,\" said Schirn. \"The officer is\n11,965 felony drug arrests by the\nthe state's sophisticated data\nexpected to make a split-second judg-\nLos Angeles Police Department in\n1981 were rejected at the initial\nprocessing system. \"The figures are\nment about a law that attorneys and\neasier to come by here,\" he said.\njudges don't even understand. The\ncase review because police made\nmistakes in seizing evidence. Re-\nThe exclusionary rule origi-\nrefficer is put on trial in narcotics cases\nnated from a 1914 Supreme Court\nInstead of the criminal.\" Schirn said.\nsults for Los Angeles County were\ndecision that \"evidence obtained in\n\"There should be a good faith excep-\nsimilar, showing that 32.5 percent\ntion to the exclusionary rule,\" be added.\nof felony drug arrests were thrown\nviolation of Fourth Amendment safe-\n\"I think well over 90 percent of all\nguards against improper search and\nofficers conduct searches in good faith\nseizure would not be admissible in\nunaware they are breaking some\nfederal prosecutions.\"\nrule\nPREDCT\n\"The exclusionary rule was rather\nrule.\"\nDistrict attorney's spokesman Al Al-\nstarted\nsimple when it started out,\" Bowers\nthe\nbergate said the survey's results were no\nIsaid. However, over the years there\nsurprise to him. \"(District Attorney\nhave been thousands of court decisions\nJohn) Van de Kamp has been working\nthat have come down, and each of those\nfor reform of the exclusionary rule for a\ndecisions spells out a different rule\nregarding when an officer has probable\nlong time,\" he said.\ncause to investigate.\n\"They're not really rules in the sense\nthat they are in a rule book,\" Bowers\ncontinued. \"The police officer is ex-\npected to know each one of those\nappellate decisions, and what we're\nseeing is that no one can know all of\n!them.\"\nThe report indicated that the per-\ncentage of narcotics arrests rejected on\nthe grounds of improper search was\nhighly disproportionate to the percent-\nage of total felony arrests rejected on\nthe same grounds. Only 4.8 percent\nstatewide and 11.7 percent in Los\nAngeles County of all charges - narcot-\netcs, assaults, burglaries, murders, rapes\n- were dismissed because of search and\nseizure problems, according to the\nstudy.\nmber 22, 1982\nLA HERALD EXAMINER\nPage A14\nLOS ANGELES\nHERALD\nEXAMINER\nFrancis L Dale/Publisher\nN. S. Hayden/President\nMary-Apne Dolan\nTheodore P. Grassi\nDavid W. Feldman\nEditor\nGeneral manager\nDirector of sales\nStanley W. Cloud/Executive editor\nLeo J. Kelly/Circulation director\nJohn P. Lindsay/Managing editor\nRay Willis/Production director\nSheena Paterson/Associate editor\nJohn Reid/Director of finance\nJoseph Farsh/Executive news editor\nMilo Sutton/Director of marketing services\nBernee D.L. Strom/Assistant to the editor\nRobert N. Schoenbacher/Advertising manager\nLee Beauregard/Ciassified advertising manager\nCops and the law\nThe\nA new study questions the 'exclusionary rule'\nthat\nshould\nnew study by the National\nthat the exclusionary rule should be\nInstitute of Justice indi-\neliminated. We don't know, for in-\ncates that the \"exclusionary\nstance, whether the local search-and-\nrule,\" banning illegally ob-\nseizure errors were \"good-faith\" slip-\ntained evidence from court, has frus-\nups, or knowing violations of some-\ntrated law enforcement more than\none's constitutional rights. Still,\nhad earlier been documented. Ac-\nstricter evidentiary rules have un-\ncording to the study, the rule resulted\nquestionably made the job of the\nin the release of one out of three\npolice more difficult, which, in itself,\npeople arrested in Los Angeles last\nis neither good nor bad. But if the\nyear-on felony drug charges. Of those\nexclusionary rule has, indeed, un-\nreleased, most had serious records\nfairly tilted the balance, changes are\nand apparently returned to their\nin order.\ncriminal ways.\nThe suggestions so far aren't very\nSuch statistics are disturbing -\npromising, however. We still think the\nand surprising. We have defended the\n\"Victims' Bill of Rights,\" which all but\nrule, in part because there was little\nthrew out the exclusionary rule, is no\nevidence that it hampered law en-\nanswer. The \"good faith\" exception\nforcement. A 1978 federal study\n(allowing illegally seized evidence,\nshowed, on the contrary, that search-\nprovided police thought they were\nand-seizure errors accounted for just\nobeying the law at the time) seems to\n0.4 percent of all federal cases re\noffer too great a loophole.\njected for trial, and for only 1 percent\nMore ideas are needed. As à curb\nof overturned convictions. But the\nto illegal or overzealous police behav-\nnew study suggests that the federal\nfor, the exclusionary rule has merit.\nexperience is not typical. In one L.A.\nThe challenge lies in preserving the\nCounty office alone last year, the\nprotection it provides to all citizens,\nrejection rate was 14.6 percent.\nwhile giving the police a fighting\nIt'would be wrong to leap from the\nchance.\nstudy's statistics to the conclusion\nexcluing made\nNOTE: Where it is feasible. a syllabus (headnote) will be released. as is\nbeing done in connection with this case. at the time the opinion is issued.\nThe syllabus constitutes no part of the opinion of the Court but has been pre-\npared by the Reporter of Decisions for the convenience of the reader. See\nUnited States V. Detroit Lumber Co.. 200 U. S. 321. 337.\nSUPREME COURT OF THE UNITED STATES\nSyllabus\nIMMIGRATION AND NATURALIZATION SERVICE is\nLOPEZ-MENDOZA ET AL.\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR\nTHE NINTH CIRCUIT\ngued\nApril\n16.\nDecided\nJuly\nJ.\n1004\nNo. 83-491. Argued April 16, 1984-Decided July 5, 1984\nwere ordered deported by an imRespondent Mexican citizens were ordered deported by an Immigration\nopez-Mendoza unsuccessfully objected Judgeg Respondent Lopez-Mendoza unsuccessfully objected to being\nheating nonowing ms anegenly umasummoned to the deportation hearing following his allegedly unlawful ar-\nrest by an Immigration and Naturalization Service (INS) agent, but he\ndid not object to the receipt in evidence of his admission, after the ar-\nrest, of illegal entry into this country. Respondent Sandoval-Sanchez.\nwho also admitted his illegal entry after being arrested by an INS agent.\nunsuccessfully objected to the evidence of his admission offered at the\ndeportation proceeding, contending that it should have been suppressed\nas the fruit of an unlawful arrest. The Board of Immigration Appeals\n(BIA) affirmed the deportation orders. The Court of Appeals reversed\nrespondent Sandoval-Sanchez' deportation order. holding that his deten-\ntion by INS agents violated the Fourth Amendment. that his admission\nof illegal entry was the product of this detention. and that the exclusion-\nary rule barred its use in a deportation proceeding. The court vacated\nrespondent Lopez-Mendoza's deportation order and remanded his case to\nthe BIA to determine whether the Fourth Amendment had been vio-\nlated in the course of his arrest.\nHeld:\n1. A deportation proceeding is a purely civil action to determine a per-\nson's eligibility to remain in this country. The purpose of deportation is\nnot to punish past transgressions but rather to put an end to a continuing\nviolation of the immigration laws. Consistent with the civil nature of a\ndeportation proceeding. various protections that apply in the context of a\ncriminal trial do not apply in a deportation hearing. Pp. 5-6.\n2. The \"body\" or identity of a defendant in a criminal or civil proceed-\ning is never itself suppressible as the fruit of an unlawful arrest. even if\nI\nII\nINS L: LOPEZ-MENDOZA\nSyllabus\nit is conceded that an unlawful arrest, search. or interrogation occurred.\nOn this basis alone. the Court of Appeals' decision as to respondent Lo-\npez-Mendoza must be reversed. since he objected only to being sum-\nmoned to his deportation hearing after an allegedly unlawful arrest and\ndid not object to the evidence offered against him. The mere fact of an\nillegal arrest has no bearing on a subsequent deportation hearing. Pp.\n6-7.\n3. The exclusionary rule does not apply in a deportation proceeding:\nhence, the rule does not apply SO as to require that respondent Sandoval-\nSanchez' admission of illegal entry after his allegedly unlawful arrest be\nexcluded from evidence at his deportation hearing. Under the balanc-\ning test applied in United States V. Janis. 428 U. S. 433. whereby the\nlikely social benefits of excluding unlawfully obtained evidence are\nweighed against the likely costs. the balance comes out against applying\nthe exclusionary rule in civil deportation proceedings. Several factors\nsignificantly reduce the likely deterrent value of the rule in such pro-\nceedings. First. regardless of how the arrest of an illegal alien is\neffected, deportation will still be possible when evidence not derived di-\nrectly from the arrest is sufficient to support deportation. Second.\nbased on statistics indicating that over 97.7 percent of illegal aliens agree\nto yoluntary deportation without a formal hearing, every INS agent\nthat any particular arrestee will end knows-that it is unlikely that any particular arrestee will end up chal-\nof his arrest in a formal deportation inlenging the lawfulness of his arrest in a formal deportation hearing.\nwn comprehensive scheme for deterring Third.lthe INS has its own comprehensive scheme for deterring Fourth\nits agents. And finally. the deterrent Amendment violations by its agents. And finally. the deterrent value of\nthe exclusionary rule in deportation proceedings is undermined by the\navailability of alternative remedies for INS practices that might violate\nFourth Amendment rights. As to the social costs of applying the exclu-\nsionary rule in deportation proceedings. they would be high. In particu-\nlar, the application of the rule in cases such as respondent Sandoval-San-\nchez' would compel the courts to release from custody persons who\nwould then immediately resume their commission of a crime through\ntheir continuing, unlawful presence in this country. and would unduly\ncomplicate the INS's deliberately simple deportation hearing system.\nPp. 7-17.\n705 F. 2d 1059, reversed.\nO'CONNOR. J., announced the judgment of the Court and delivered the\nopinion of the Court with respect to Parts I, II, III, and IV, in which BUR-\nGER. C.J., and BLACKMUN. POWELL. and REHNQUIST. JJ., joined. and an\nopinion with respect to Part V. in which BLACKMUN, POWELL. and REHN-\nQUIST. JJ., joined. BRENNAN, WHITE. MARSHALL. and STEVENS. JJ..\nfiled dissenting opinions.\nNOTICE: This opinion is subject to formal revision before publication in the\npreliminary print of the United States Reports. Readers are requested to\nnotify the Reporter of Decisions. Supreme Court of the United States. Wash-\nington. D. C. 20543. of any typographical or other formal errors. in order\nthat corrections may be made before the preliminary print goes to press.\nSUPREME COURT OF THE UNITED STATES\nNo. 83-491\nIMMIGRATION AND NATURALIZATION SERVICE,\nPETITIONER i: ADAN LOPEZ-MENDOZA ET AL.\nON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE NINTH CIRCUIT\n[July 5. 1984]\n[July 5, 1984]\nOR delivered the opinion of the CJUSTICE O'CONNOR delivered the opinion of the Court.\nmres ns in decide an Thisditigation requires us to decide whether an admission\nof unlawful presence in this country made subsequent to an\nallegedly unlawful arrest must be excluded as evidence in a\ncivil deportation hearing. We hold that the exclusionary\nrule need not be applied in such a proceeding.\nI\nRespondents Adan Lopez-Mendoza and Elias Sandoval-\nSanchez, both citizens of Mexico, were summoned to separate\ndeportation proceedings in California and Washington, and\nboth were ordered deported. They challenged the regular-\nity of those proceedings on grounds related to the lawfulness\nof their respective arrests by officials of the Immigration and\nNaturalization Service (INS). On administrative appeal the\nBoard of Immigration Appeals (BIA), an agency of the De-\npartment of Justice, affirmed the deportation orders.\nThe Court of Appeals for the Ninth Circuit, sitting en\nbanc. reversed Sandoval's deportation order and vacated and\nremanded Lopez-Mendoza's deportation order. 705 F. 2d\n1059 (1983). It ruled that Sandoval's admission of his illegal\npresence in this country was the fruit of an unlawful arrest,\nand that the exclusionary rule applied in a deportation pro-\n*THE CHIEF JUSTICE joins all but Part V of this opinion.\n83-491-OPINION\n2\nINS l'. LOPEZ-MENDOZA\nceeding. Lopez-Mendoza's deportation order was vacated\nand his case remanded to the BIA to determine whether the\nFourth Amendment had been violated in the course of his ar-\nrest. We granted certiorari, 464 U. S. 1984.\nA\nRespondent Lopez-Mendoza was arrested in 1976 by INS\nagents at his place of employment, a transmission repair shop\nin San Mateo, Cal. Responding to a tip, INS investigators\narrived at the shop shortly before 8 a. m. The agents had\nnot sought a warrant to search the premises or to arrest any\nof its occupants. The proprietor of the shop firmly refused\nto allow the agents to interview his employees during work-\ning hours. Nevertheless, while one agent engaged the pro-\nprietor in conversation another entered the shop and ap-\nproached Lopez-Mendoza. In response to the agent's\nquestioning, Lopez-Mendoza gave his name and indicated\nwith\nno\nclose\nfamily\nthat the was from Mexico with no close family ties in the\nagent then placed him under United States. The agent then placed him under arrest.\nrwent\nfurther\nquestioning\nLopez-Mendoza underwent further questioning at INS of-\nfices, where he admitted he was born in Mexico, was still a\ncitizen of Mexico, and had entered this country without in-\nspection by immigration authorities. Based on his answers,\nthe agents prepared a \"Record of Deportable Alien\" (Form\nI-213), and an affidavit which Lopez-Mendoza executed, ad-\nmitting his Mexican nationality and his illegal entry into this\ncountry.\nA hearing was held before an Immigration Judge. Lopez-\nMendoza's counsel moved to terminate the proceeding on the\nground that Lopez-Mendoza had been arrested illegally.\nThe judge ruled that the legality of the arrest was not rele-\nvant to the deportation proceeding and therefore declined to\nrule on the legality of Lopez-Mendoza's arrest. Matter of\nLopez-Mendoza, No. A22 452 208 (INS, Dec. 21, 1977), re-\nprinted in App. Pet. for Cert. 97a. The Form I-213 and the\naffidavit executed by Lopez-Mendoza were received into evi-\n83-491-OPINION\nINS v. LOPEZ-MENDOZA\n3\ndence without objection from Lopez-Mendoza. On the basis\nof this evidence the Immigration Judge found Lopez-\nMendoza deportable. Lopez-Mendoza was granted the op-\ntion of voluntary departure.\nThe BIA dismissed Lopez-Mendoza's appeal. It noted\nthat \"[t]he mere fact of an illegal arrest has no bearing on a\nsubsequent deportation proceeding,\" In re Lopez-Mendoza,\nNo. A22 452 208 (BIA, Sept. 19, 1979), reprinted in App. Pet.\nfor Cert. 100a, 102a, and observed that Lopez-Mendoza had\nnot objected to the admission into evidence of Form I-213\nand the affidavit he had executed. Id., at 103a. The BIA\nalso noted that the exclusionary rule is not applied to redress\nthe injury to the privacy of the search victim, and that the\nBIA had previously concluded that application of the rule in\ndeportation proceedings to deter unlawful INS conduct was\ninappropriate. Matter of Sandoval, 17 I. & N. Dec. 70 (BIA\n1979).\nals vacated the order of deportatioThe Court of Appeals vacated the order of deportation and\nermination whether Lopez-Memanded for a determination whether Lopez-Mendoza's\nrights had been violated when Feurth Amendment rights had been violated when he was\narrested.\nB\nRespondent Sandoval-Sanchez (who is not the same indi-\nvidual who was involved in Matter of Sandoval, supra) was\narrested in 1977 at his place of employment, a potato process-\ning plant in Pasco, Wash. INS Agent Bower and other offi-\ncers went to the plant, with the permission of its personnel\nmanager, to check for illegal aliens. During a change in\nshift-officers stationed themselves at the exits while Bower\nand a uniformed Border Patrol agent entered the plant.\nThey went to the lunchroom and identified themselves as\nimmigration officers. Many people in the room rose and\nheaded for the exits or milled around; others in the plant left\ntheir equipment and started running; still others who were\nentering the plant turned around and started walking back\nout. The two officers eventually stationed themselves at the\n83-491-OPINION\n4\nINS 2: LOPEZ-MENDOZA\nmain entrance to the plant and looked for passing employees\nwho averted their heads, avoided eye contact, or tried to hide\nthemselves in a group. Those individuals were addressed\nwith innocuous questions in English. Any who could not re-\nspond in English and who otherwise aroused Agent Bower's\nsuspicions were questioned in Spanish as to their right to be\nin the United States.\nRespondent Sandoval-Sanchez was in a line of workers en-\ntering the plant. Sandoval-Sanchez testified that he did not\nrealize that immigration officers were checking people enter-\ning the plant, but that he did see standing at the plant en-\ntrance a man in uniform who appeared to be a police officer.\nAgent Bower testified that it was probable that he, not his\npartner, had questioned Sandoval-Sanchez at the plant, but\nthat he could not be absolutely positive. The employee he\nthought he remembered as Sandoval-Sanchez had been \"very\nevasive,\" had averted his head, turned around, and walked\nAgent Bower. App. 137. 138. awayawhen he saw Agent Bower. App. 137, 138. Bower\nme was questioned about his stawas certain that no one was questioned about his status un-\nven the agents reason to helie eless hisactions had given the agents reason to believe that he\nwas an undocumented alien.\nThirty-seven employees, including Sandoval-Sanchez,\nwere briefly detained at the plant and then taken to the\ncounty jail. About one-third immediately availed them-\nselves of the option of voluntary departure and were put on a\nbus to Mexico. Sandoval-Sanchez exercised his right to a\ndeportation hearing. Sandoval-Sanchez was then ques-\ntioned further, and Agent Bower recorded Sandoval-\nSanchez's admission of unlawful entry. Sandoval contends\nhe was not aware that he had a right to remain silent.\nAt his deportation hearing Sandoval-Sanchez contended\nthat the evidence offered by the INS should be suppressed as\nthe fruit of an unlawful arrest. The Immigration Judge con-\nsidered and rejected Sandoval-Sanchez's claim that he had\nbeen illegally arrested, but ruled in the alternative that the\nlegality of the arrest was not relevant to the deportation\n83-491-OPINION\nINS L'. LOPEZ-MENDOZA\n5\nhearing. Matter of Sandoval-Sanchez, No. A22 346 925\n(INS, Oct. 7, 1977), reprinted in App. Pet. for Cert. at 104a.\nBased on the written record of Sandoval-Sanchez's admis-\nsions the Immigration Judge found him deportable and\ngranted him voluntary departure. The BIA dismissed San-\ndoval-Sanchez's appeal. In re Sandoval-Sanchez, No. A22\n346 925 (BIA, Feb. 21, 1980). It concluded that the circum-\nstances of the arrest had not affected the voluntariness of his\nrecorded admission, and again declined to invoke the exclu-\nsionary rule, relying on its earlier decision in Matter of\nSandoval, supra.\nOn appeal the Court of Appeals concluded that Sandoval-\nSanchez's detention by the immigration officers violated the\nFourth Amendment, that the statements he made were a\nproduct of that detention, and that the exclusionary rule\nbarred their use in a deportation hearing. The deportation\nSanchez\nagainst Sandoval-Sanchez was accordingly reversed.\nII\nII\needing is a purely civil action to adeportation proceeding is a purely civil action to deter-\nmine eligibility to remain in this country, not to punish an un-\nlawful entry, though entering or remaining unlawfully in this\ncountry is itself a crime. 8 U. S. C. §§ 1302, 1306, 1325.\nThe deportation hearing looks prospectively, to the respond-\nent's right to remain in this country in the future. Past con-\nduct is relevant only insofar as it may shed light on the re-\nspondent's right to remain. See 8 U. S. C. §§ 1251, 1252(b);\nBugajewitz V. Adams, 228 U.S. 585, 591 (1913); Fong Yue\nTing V. United States, 149 U. S. 698, 730 (1893).\nA deportation hearing is held before an immigration judge.\nThe judge's sole power is to order deportation; the judge can-\nnot adjudicate guilt or punish the respondent for any crime\nrelated to unlawful entry into or presence in this country.\nConsistent with the civil nature of the proceeding, various\nprotections that apply in the context of a criminal trial do not\napply in a deportation hearing. The respondent must be\n83-491-OPINION\n6\nINS 2: LOPEZ-MENDOZA\ngiven \"a reasonable opportunity to be present at [the] pro-\nceeding,\" but if the respondent fails to avail himself of that\nopportunity the hearing may proceed in his absence. 8\nU. S. C. § 1252(b). In many deportation cases the INS must\nshow only identity and alienage; the burden then shifts to the\nrespondent to prove the time, place, and manner of his entry.\nSee 8 U. S. C. § 1361; Matter of Sandoval, supra. A deci-\nsion of deportability need be based only on \"reasonable, sub-\nstantial, and probative evidence,\" 8 U. S. C. § 1252(b)(4).\nThe BIA for its part has required only \"clear, unequivocal\nand convincing\" evidence of the respondent's deportability,\nnot proof beyond a reasonable doubt. 8 CFR § 242.14(a)\n(1984). The Courts of Appeals have held, for example that\nthe absence of Miranda warnings does not render an other-\nwise voluntary statement by the respondent inadmissible in a\ndeportation case. Navia-Duran V. INS, 568 F. 2d 803, 808\n(CA1.1977); Avila-Gallegos V. INS, 525 F. 2d 666, 667 (CA2\nV. INS. 519 F. 2d 397. 399-101975)aCharez-Raya V. INS, 519 F. 2d 397, 399-401 (CA7\nbel V. United States. 362 U. 1975). See also Abel V. United States, 362 U.S. 217,\nh permitted incidental to an +236-237 (1960) (search permitted incidental to an arrest pur-\nrative warrant issued by the INSuant to an administrative warrant issued by the INS); Gal-\nvan V. Press, 347 U. S. 522, 531 (1954) (Ex Post Facto Clause\nhas no application to deportation); Carlson V. Landon, 342\nU.S. 524, 544-546 (1952) (Eighth Amendment does not re-\nquire bail to be granted in certain deportation cases); United\nStates ex rel. Bilokumsky V. Tod, 263 U. S. 149, 157 (1923)\n(involuntary confessions admissible at deportation hearing).\nIn short, a deportation hearing is intended to provide a\nstreamlined determination of eligibility to remain in this\ncountry, nothing more. The purpose of deportation is not to\npunish past transgressions but rather to put an end to a con-\ntinuing violation of the immigration laws.\nIII\nThe \"body\" or identity of a defendant or respondent in a\ncriminal or civil proceeding is never itself suppressible as a\n83-491-OPINION\nINS i. LOPEZ-MENDOZA\n7\nfruit of an unlawful arrest, even if it is conceded that an un-\nlawful arrest, search, or interrogation occurred. See Ger-\nstein V. Pugh, 420 U. S. 103, 119 (1975); Frisbie V. Collins,\n342 U. S. 519, 522 (1952); United States ex rel. Bilokumsky\nV. Tod, supra, at 158. A similar rule applies in forfeiture\nproceedings directed against contraband or forfeitable prop-\nerty. See, e. g., United States V. Eighty-Eight Thousand,\nFive Hundred Dollars, 671 F. 2d 293 (CA8 1982); United\nStates V. One (1) 1971 Harley-Davidson Motorcycle, 508 F.\n2d 351 (CA9 1974); United States V. One 1965 Buick, 397 F.\n2d 782 (CA6 1968).\nOn this basis alone the Court of Appeals' decision as to re-\nspondent Lopez must be reversed. At his deportation hear-\ning Lopez objected only to the fact that he had been sum-\nmoned to a deportation hearing following an unlawful arrest;\nhe entered no objection to the evidence offered against him.\nThe BIA correctly ruled that \"[t]he mere fact of an illegal ar-\non a subsequent deportation prest- has no bearing on a subsequent deportation proceed-\nMendoza. supra, reprinted in ing. \"for In re Lopez-Mendoza, supra, reprinted in Pet. for\nCert. 102a.\nIV\nIV\nRespondent Sandoval has a more substantial claim. He\nobjected not to his compelled presence at a deportation pro-\nceeding, but to evidence offered at that proceeding. The\ngeneral rule in a criminal proceeding is that statements and\nother evidence obtained as a result of an unlawful, warrant-\n¹The Court of Appeals brushed over Lopez's failure to object to the evi-\ndence in an apparently unsettled footnote of its decision. The Court of Ap-\npeals was initially of the view that a motion to terminate a proceeding on\nthe ground that the arrest of the respondent was unlawful is, \"for all prac-\ntical purposes,\" the same as a motion to suppress evidence as the fruit of an\nunlawful arrest. Slip opinion. at 1765, n. 1 (Apr. 25, 1983). In the bound\nreport of its opinion. however, the Court of Appeals takes a somewhat dif-\nferent view, stating in a revised version of the same footnote that \"the only\nreasonable way to interpret the motion to terminate is as one that includes\nboth a motion to suppress and a motion to dismiss.\" 705 F. 2d 1059. 1060,\nn. 1 (1983).\n83-491-OPINION\n8\nINS t. LOPEZ-MENDOZA\nless arrest are suppressible if the link between the evidence\nand the unlawful conduct is not too attenuated. Wong Sun\nV. United States, 371 U. S. 471 (1963). The reach of the ex-\nclusionary rule beyond the context of a criminal prosecution,\nhowever, is less clear. Although this Court has once stated\nin dictum that \"[i]t may be assumed that evidence obtained\nby the [Labor] Department through an illegal search and sei-\nzure cannot be made the basis of a finding in deportation pro-\nceedings,\" United States ex rel. Bilokumsky V. Tod, supra,\nat 155, the Court has never squarely addressed the question\nbefore. Lower court decisions dealing with this question are\nsparse.2\nIn United States V. Janis, 428 U. S. 433 (1976), this Court\nset forth a framework for deciding in what types of proceed-\ning application of the exclusionary rule is appropriate. Im-\nprecise as the exercise may be, the Court recognized in Janis\nthat there is no choice but to weigh the likely social benefits\nilly spized evidence against thef excluding unlawfully seized evidence against the likely\nfit side of the balance procosts. On the benefit side of the balance \"the 'prime pur-\nhary] rule. if not the sole one to pose of the [exclusionary] rule, if not the sole one, 'is to deter\n51\nfuture unlawful police conduct.\" Id., at 446, citing United\nStates V. Calandra, 414 U. S. 338, 347 (1974). On the cost\nside there is the loss of often probative evidence and all of the\nsecondary costs that flow from the less accurate or more cum-\nbersome adjudication that therefore occurs.\nAt stake in Janis was application of the exclusionary rule\nin a federal civil tax assessment proceeding following the un-\nlawful seizure of evidence by state, not federal, officials.\nIn United States V. Wong Quong Wong. 94 F. 832 (Vt. 1899). a district\njudge excluded letters seized from the appellant in a civil deportation pro-\nceeding. In Ex parte Jackson, 263 F. 110 (Mont.), appeal dism'd sub nom.\nAndrews v. Jackson, 267 F. 1022 (CA9 1920), another district judge\ngranted habeas corpus relief on the ground that papers and pamphlets used\nagainst the habeas petitioner in a deportation proceeding had been unlaw-\nfully seized. Wong Chung Che V. INS. 565 F. 2d 166 (CA1 1977). held that\npapers obtained by INS agents in an unlawful search are inadmissible in\ndeportation proceedings.\n83-491-OPINION\nINS is LOPEZ-MENDOZA\n9\nThe Court noted at the outset that \"[i]n the complex and tur-\nbulent history of the rule, the Court never has applied it to\nexclude evidence from a civil proceeding, federal or state.\"\n428 U.S., at 447 (footnote omitted). Two factors in Janis\nsuggested that the deterrence value of the exclusionary rule\nin the context of that case was slight. First, the state law\nenforcement officials were already \"punished\" by the exclu-\nsion of the evidence in the state criminal trial as a result of\nthe same conduct. Id., at 448. Second, the evidence was\nalso excludable in any federal criminal trial that might be\nheld. Both factors suggested that further application of the\nexclusionary rule in the federal civil proceeding would con-\ntribute little more to the deterrence of unlawful conduct by\nstate officials. On the cost side of the balance, Janis focused\nsimply on the loss of \"concededly relevant and reliable evi-\ndence.\" Id., at 447. The Court concluded that, on balance,\nthe\nIRCIV\nsocial\naerthis cost outweighed the likely social benefits achievable\nof the exclusionary rule in thethrough application of the exclusionary rule in the federal\ncivil proceeding.\nely that the deterrence value of While it seems likely that the deterrence value of applying\nin deportation proceedings the exelusionary rule in deportation proceedings would be\nhigher than it was in Janis, it is also quite clear that the so-\ncial costs would be very much greater as well. Applying the\nJanis balancing test to the benefits and costs of excluding\nconcededly reliable evidence from a deportation proceeding,\nwe therefore reach the same conclusion as in Janis.\nThe likely deterrence value of the exclusionary rule in de-\nportation proceedings is difficult to assess. On the one hand,\na civil deportation proceeding is a civil complement to a possi-\nble criminal prosecution, and to this extent it resembles the\ncivil proceeding under review in Janis. The INS does not\nsuggest that the exclusionary rule should not continue to\napply in criminal proceedings against an alien who unlawfully\nenters or remains in this country. and the prospect of losing\nevidence that might otherwise be used in a criminal prosecu-\ntion undoubtedly supplies some residual deterrent to unlaw-\n83-491-OPINION\n10\nINS v. LOPEZ-MENDOZA\nful conduct by INS officials. But it must be acknowledged\nthat only a very small percentage of arrests of aliens are in-\ntended or expected to lead to criminal prosecutions. Thus\nthe arresting officer's primary objective, in practice, will be\nto use evidence in the civil deportation proceeding. More-\nover, here, in contrast to Janis, the agency officials who\neffect the unlawful arrest are the same officials who sub-\nsequently bring the deportation action. As recognized in\nJanis, the exclusionary rule is likely to be most effective\nwhen applied to such \"intrasovereign\" violations.\nNonetheless, several other factors significantly reduce the\nlikely deterrent value of the exclusionary rule in a civil de-\nportation proceeding. First, regardless of how the arrest is\neffected, deportation will still be possible when evidence not\nderived directly from the arrest is sufficient to support de-\nportation. As the BIA has recognized, in many deportation\n101\nproceedings \"the sole matters necessary for the Government\nespondent's lidentity and aliento establish are the respondent's identity and alienage-at\nn shifts to the respondent to plwhich point the burden shifts to the respondent to prove the\ner of entry.' Matter of Sondtime, place and manner of entry.\" Matter of Sandoval, 17\nSince The person and identive & N. Dec., at 79. Since the person and identity of the re-\nspondent are not themselves suppressible, see supra, at 6-7,\nthe INS must prove only alienage, and that will sometimes be\npossible using evidence gathered independently of, or suffi-\nciently attenuated from, the original arrest. See Matter of\nSandoval, supra, at 79; see, e. g., Avila-Gallegos V. INS,\n525 F. 2d 666 (CA2 1975). The INS's task is simplified in\nthis regard by the civil nature of the proceeding. As Justice\nBrandeis stated: \"Silence is often evidence of the most per-\nsuasive character\n[T]here is no rule of law which prohib-\nits officers charged with the administration of the immigra-\ntion law from drawing an inference from the silence of one\nwho is called upon to speak.\nA person arrested on the\npreliminary warrant is not protected by a presumption of citi-\nzenship comparable to the presumption of innocence in a\ncriminal case. There is no provision which forbids drawing\n83-491-OPINION\nINS 2: LOPEZ-MENDOZA\n11\nan adverse inference from the fact of standing mute.\"\nUnited States ex rel. Bilokumsky V. Tod, 263 U.S., at\n153-154.\nThe second factor is a practical one. In the course of a\nyear the average INS agent arrests almost 500 illegal aliens.\nBrief for Petitioner 38. Over 97.5% apparently agree to vol-\nuntary deportation without a formal hearing. 705 F. 2d, at\n1071, n. 17. Among the remainder who do request a formal\nhearing (apparently a dozen or so in all, per officer, per year)\nvery few challenge the circumstances of their arrests. As\nnoted by the Court of Appeals, \"the BIA was able to find only\ntwo reported immigration cases since 1899 in which the [ex-\nclusionary] rule was applied to bar unlawfully seized evi-\ndence, only one other case in which the rule's application was\nspecifically addressed, and fewer than fifty BIA proceedings\nsince 1952 in which a Fourth Amendment challenge to the in-\nwas\nraised\nin\natr duction of evidence was even raised.\" Id., at 1071.\nows. therefore that it is highly Every JNS agent knows, therefore, that it is highly unlikely\nrrestee will end up challenging that any particular arrestee will end up challenging the law-\nin 2 formal deportation fulness of his arrest in a formal deportation proceeding.\nchallenge\nis\nbrought\nthe\nWhen an occasional challenge is brought, the consequences\nfrom the point of view of the officer's overall arrest and de-\nportation record will be trivial. In these circumstances, the\narresting officer is most unlikely to shape his conduct in\nanticipation of the exclusion of evidence at a formal deporta-\ntion hearing.\nThird, and perhaps most important, the INS has its own\ncomprehensive scheme for deterring Fourth Amendment vi-\nolations by its officers. Most arrests of illegal aliens away\nfrom the border occur during farm, factory, or other work-\nplace surveys. Large numbers of illegal aliens are often ar-\nrested at one time, and conditions are understandably cha-\notic. See Brief for Petitioner in INS V. Delgado, O. T. 1983,\nNo. 82-1271, pp. 3-5. To safeguard the rights of those who\nare lawfully present at inspected workplaces the INS has de-\nveloped rules restricting stop, interrogation, and arrest prac-\n83-491-OPINION\n12\nINS v. LOPEZ-MENDOZA\ntices. Id., at 7, n. 7, 32-40, and n. 25. These regulations\nrequire that no one be detained without reasonable suspicion\nof illegal alienage, and that no one be arrested unless there is\nan admission of illegal alienage or other strong evidence\nthereof. New immigration officers receive instruction and\nexamination in Fourth Amendment law, and others receive\nperiodic refresher courses in law. Brief for Petitioner 39-40.\nEvidence seized through intentionally unlawful conduct is ex-\ncluded by Department of Justice policy from the proceeding\nfor which it was obtained. See Memorandum from Benjamin\nR. Civiletti to Heads of Offices, Boards, Bureaus and Divi-\nsions, Violations of Search and Seizure Law (Jan. 16, 1981).\nThe INS also has in place a procedure for investigating and\npunishing immigration officers who commit Fourth Amend-\nment violations. See Office of General Counsel, INS, U. S.\nDept. of Justice, The Law of Arrest, Search, and Seizure for\nCian\n19831\nImmigration Officers 35 (Jan. 1983). The INS's attention to\niterests cannot guarantee that Fourth-Amendment interests cannot guarantee that constitu-\nnot occur. but it does reduce titional violations will not occur, but it does reduce the likely\nexclusionary mile Deterrendeterrent value of the exclusionary rule. Deterrence must\narain\nbe measured at the margin.\nFinally, the deterrent value of the exclusionary rule in de-\nportation proceedings is undermined by the availability of al-\nternative remedies for institutional practices by the INS that\nmight violate Fourth Amendment rights. The INS is a sin-\ngle agency, under central federal control, and engaged in op-\nerations of broad scope but highly repetitive character. The\npossibility of declaratory relief against the agency thus offers\na means for challenging the validity of INS practices, when\nstanding requirements for bringing such an action can be\nmet. Cf. INS V. Delgado, 466 U. S. (1984).\nRespondents that retention of the exclusionary rule is nec-\nessary to safeguard the Fourth Amendment rights of ethnic\nAmericans, particularly the Hispanic-Americans lawfully in\nthis country. We recognize that respondents raise here le-\ngitimate and important concerns. But application of the ex-\n83-491-OPINION\nINS 1: LOPEZ-MENDOZA\n13\nclusionary rule to civil deportation proceedings can be justi-\nfied only if the rule is likely to add significant protection to\nthese Fourth Amendment rights. The exclusionary rule\nprovides no remedy for completed wrongs; those lawfully in\nthis country can be interested in its application only insofar\nas it may serve as an effective deterrent to future INS mis-\nconduct. For the reasons we have discussed we conclude\nthat application of the rule in INS civil deportation proceed-\nings, as in the circumstances discussed in Janis, \"is unlikely\nto provide significant, much less substantial, additional de-\nterrence.\" 428 U.S., at 458. Important as it is to protect\nthe Fourth Amendment rights of all persons, there is no con-\nvincing indication that application of the exclusionary rule in\ncivil deportation proceedings will contribute materially to\nthat end.\nOn the other side of the scale, the social costs of applying\ndeportation\nproceedings\nare\nthe.exclusionary rule in deportation proceedings are both un-\nThe first cost is one that is unisual and significant. The first cost is one that is unique to\nof the law. Applying the exclucontinuing violations of the law. Applying the exclusionary\nthat are intended not to punirule proceedings that are intended not to punish past\nTheir continuance or transgressions but to prevent their continuance or renewal\nwould require the courts to close their eyes to ongoing viola-\ntions of the law. This Court has never before accepted costs\nof this character in applying the exclusionary rule.\nPresumably no one would argue that the exclusionary rule\nshould be invoked to prevent an agency from ordering correc-\ntive action at a leaking hazardous waste dump if the evidence\nunderlying the order had been improperly obtained, or to\ncompel police to return contraband explosives or drugs to\ntheir owner if the contraband had been unlawfully seized.\nOn the rare occasions that it has considered costs of this type\nthe Court has firmly indicated that the exclusionary rule does\nnot extend this far. See United States V. Jeffers, 342 U.S.\n48, 54 (1951); Trupiano V. United States, 334 U. S. 699, 710\n(1948). The rationale for these holdings is not difficult to\nfind. \"Both Trupiano and Jeffers concerned objects the pos-\n83-491-OPINION\n14\nINS v. LOPEZ-MENDOZA\nsession of which, without more, constitutes a crime. The re-\npossession of such per se contraband by Jeffers and Trupiano\nwould have subjected them to criminal penalties. The re-\nturn of the contraband would clearly have frustrated the ex-\npress public policy against the possession of such objects.\"\nOne 1958 Plymouth Sedan V. Pennsylvania, 380 U. S. 693,\n699 (1965) (footnote omitted). Precisely the same can be\nsaid here. Sandoval is a person whose unregistered pres-\nence in this country, without more, constitutes a crime.³\nHis release within our borders would immediately subject\nhim to criminal penalties. His release would clearly frus-\ntrate the express public policy against an alien's unregistered\npresence in this country. Even the objective of deterring\nFourth Amendment violations should not require such a re-\nsult. The constable's blunder may allow the criminal to go\nfree, but we have never suggested that it allows the criminal\n(11\nto continue in the commission of an ongoing crime. When\ninvolves unlawful presence in ththe crime in question involves unlawful presence in this coun-\ngo free, but he should not try, fthe criminal may go free, but he should not go free\nwithin our borders.\n3Sandoval was arrested on June 23. 1977. His deportation hearing was\nheld on October 7, 1977. By that time he was under a duty to apply for\nregistration as an alien. A failure to do so plainly constituted a continuing\ncrime. 8 U. S. C. §§ 1302, 1306. Sandoval was not, of course, prosecuted\nfor this crime, and we do not know whether or not he did make the re-\nquired application. But it is safe to assume that the exclusionary rule\nwould never be at issue in a deportation proceeding brought against an\nalien who entered the country unlawfully and then voluntarily admitted to\nhis unlawful presence in an application for registration.\nSandoval was also not prosecuted for his initial illegal entry into this\ncountry, an independent crime under 8 U. S. C. § 1325. We need not de-\ncide whether or not remaining in this country following an illegal entry is a\ncontinuing or a completed crime under § 1325. The question is academic,\nof course, since in either event the unlawful entry remains both punishable\nand continuing grounds for deportation. See 8 U. S. C. § 1251(a)(2).\n\"Similarly, in Sure-Tan, Inc. V. NLRB,\nU.S.\n(1984), the\nCourt concluded that an employer can be guilty of an unfair labor practice\nin his dealings with an alien notwithstanding the alien's illegal presence in\n83-491-OPINION\nINS v. LOPEZ-MENDOZA\n15\nOther factors also weigh against applying the exclusionary\nrule in deportation proceedings. The INS currently oper-\nates a deliberately simple deportation hearing system,\nstreamlined to permit the quick resolution of very large num-\nbers of deportation actions, and it is against this backdrop\nthat the costs of the exclusionary must be assessed. The\ncosts of applying the exclusionary rule, like the benefits,\nmust be measured at the margin.\nThe average immigration judge handles about six deporta-\ntion hearings per day. Brief for Petitioner 27, n. 16. Nei-\nther the hearing officers nor the attorneys participating in\nthose hearings are likely to be well versed in the intricacies of\nFourth Amendment law. The prospect of even occasional in-\nvocation of the exclusionary rule might significantly change\nand complicate the character of these proceedings. The BIA\nhas described the practical problems as follows:\nlicability 01 the exclusionary rule, queAbsent the applicability of the exclusionary rule, ques-\ndeportability routinely involve sintions relating to deportability routinely involve simple\nas and of proof When infactual allegations and matters of proof. When Fourth\nare roison at deportation hearinAmendment issues are raised at deportation hearings,\nthe result is a diversion of attention from the main issues\nwhich those proceedings were created to resolve, both in\nterms of the expertise of the administrative decision\nmakers and of the structure of the forum to accommo-\ndate inquiries into search and seizure questions. The\nresult frequently seems to be a long, confused record in\nwhich the issues are not clearly defined and in which\nthere is voluminous testimony\nThe ensuing de-\nlays and inordinate amount of time spent on such cases at\nall levels has an adverse impact on the effective adminis-\nthis country. Retrospective sanctions against the employer may accord-\ningly be imposed by the NLRB to further the public policy against unfair\nlabor practices. But while he maintains the status of an illegal alien, the\nemployee is plainly not entitled to the prospective relief-reinstatement\nand continued employment-that probably would be granted to other vic-\ntims of similar unfair labor practices.\n83-491-OPINION\n16\nINS 2: LOPEZ-MENDOZA\ntration of the immigration laws\nThis is particu-\nlarly true in a proceeding where delay may be the only\n'defense' available and where problems already exist\nwith the use of dilatory tactics.\" Matter of Sandoval, 17\nI. & N., at 80 (footnote omitted).\nThis sober assessment of the exclusionary rule's likely costs,\nby the agency that would have to administer the rule in at\nleast the administrative tiers of its application, cannot be\nbrushed off lightly.\nThe BIA's concerns are reinforced by the staggering di-\nmension of the problem that the INS confronts. Immigra-\ntion officers apprehend over one million deportable aliens in\nthis country every year. Id., at 85. A single agent may ar-\nrest many illegal aliens every day. Although the investiga-\ntory burden does not justify the commission of constitutional\nviolations, the officers cannot be expected to compile elabo-\nin\nwritten reports detailing the rate, contemporaneous, written reports detailing the circum-\nest. At present an officer simistances of every arrest. At present an officer simply com-\nDeportable Alien\" that IS pletes-a \"Record of Deportable Alien\" that is introduced to\nat the deportation hearing prove the INS's case at the deportation hearing; the officer\nrarely must attend the hearing. Fourth Amendment sup-\npression hearings would undoubtedly require considerably\nmore, and the likely burden on the administration of the im-\nmigration laws would be correspondingly severe.\nFinally, the INS advances the credible argument that ap-\nplying the exclusionary rule to deportation proceedings\nmight well result in the suppression of large amounts of in-\nformation that had been obtained entirely lawfully. INS ar-\nrests occur in crowded and confused circumstances. Though\nthe INS agents are instructed to follow procedures that ade-\nquately protect Fourth Amendment interests, agents will\nusually be able to testify only to the fact that they followed\nINS rules. The demand for a precise account of exactly\nwhat happened in each particular arrest would plainly pre-\nclude mass arrests, even when the INS is confronted. as it\noften is, with massed numbers of ascertainably illegal aliens,\n83-491-OPINION\nINS v. LOPEZ-MENDOZA\n17\nand even when the arrests can be and are conducted in full\ncompliance with all Fourth Amendment requirements.\nIn these circumstances we are persuaded that the Janis\nbalance between costs and benefits comes out against apply-\ning the exclusionary rule in civil deportation hearings held by\nthe INS. By all appearances the INS has already taken sen-\nsible and reasonable steps to deter Fourth Amendment viola-\ntions by its officers, and this makes the likely additional de-\nterrent value of the exclusionary rule small. The costs of\napplying the exclusionary rule in the context of civil deporta-\ntion hearings are high. In particular, application of the ex-\nclusionary rule in cases such as Sandoval's, would compel the\ncourts to release from custody persons who would then im-\nmediately resume their commission of a crime through their\ncontinuing, unlawful presence in this country. \"There comes\na point at which courts, consistent with their duty to adminis-\nntinue to create barriers to law terthelaw, cannot continue to create barriers to law enforce-\nof a supervisory role that is pment in the pursuit of a supervisory role that is properly\nxecutive and Legislative Brathereduty of the Executive and Legislative Branches.\"\nis. 428 U. S.. at 459. That pdintited States V. Janis, 428 U.S., at 459. That point has\nbeen reached here.\nV\nWe do not condone any violations of the Fourth Amend-\nment that may have occurred in the arrests of respondents\nLopez or Sandoval. Moreover, no challenge is raised here to\nthe INS's own internal regulations. Cf. INS V. Delgado,\nU.S.\n(1984). Our conclusions concerning the ex-\nclusionary rule's value might change, if there developed good\nreason to believe that Fourth Amendment violations by INS\nofficers were widespread. Cf. United States V. Leon,\nU.S.\n(BLACKMUN, J., concurring). Finally, we do not\ndeal here with egregious violations of Fourth Amendment or\nother liberties that might transgress notions of fundamental\nfairness and undermine the probative value of the evidence\n83-491-OPINION\n18\nINS 2: LOPEZ-MENDOZA\nobtained. Cf. Rochin V. California, 342 U.S. 165 (1952).\nAt issue here is the exclusion of credible evidence gathered in\nconnection with peaceful arrests by INS officers. We hold\nthat evidence derived from such arrests need not be up-\npressed in an INS civil deportation hearing.\nThe judgment of the Court of Appeals is therefore\nReversed.\n5We note that subsequent to its decision in Matter of Sandoval. 17\nI. & N. Dec. 70 (1979). the BIA held that evidence will be excluded if the\ncircumstances surrounding a particular arrest and interrogation would ren-\nder use of the evidence obtained thereby \"fundamentally unfair\" and in vi-\nolation of due process requirements of the fifth amendment. Matter of\nToro. 17 I. &. N. Dec. 340. 343 (BIA 1980). See also Matter of Garcia, 17\nI. & N. Dec. 319. 321 (BIA 1980) (suppression of admission of alienage ob-\ntained after request for counsel had been repeatedly refused): Matter of\nRamira-Cordova, No. A21 095 659 (BIA Feb. 21. 1980) (suppression of ev-\nidence obtained as a result of a night-time warrantless entry into the aliens'\nresidence).\nSUPREME COURT OF THE UNITED STATES\nNo. 83-491\nIMMIGRATION AND NATURALIZATION SERVICE,\nPETITIONER v. ADAN LOPEZ-MENDOZA ET AL.\nON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE NINTH CIRCUIT\n[July 5, 1984]\nJUSTICE BRENNAN, dissenting.\nI fully agree with JUSTICE WHITE that under the analysis\nurt in such cases as United Sideveloped by the Court in such cases as United States V.\n(1976), and United States V. CalJanis, 428 U. S. 433 (1976), and United States V. Calandra,\nhe exclusionary rule must apply 414 U S. 338 (1974), the exclusionary rule must apply in civil\nMRS. However, for the reasodeportation proceedings. However, for the reasons set\nforth today in my dissenting opinion in United States V. Leon,\nante, at\nI\nI believe the basis for the exclusionary rule\n,\ndoes not derive from its effectiveness as a deterrent, but is\ninstead found in the requirements of the Fourth Amendment\nitself. My view of the exclusionary rule would, of course, re-\nquire affirmance of the Court of Appeals. In this case, fed-\neral law enforcement officers arrested respondents Sandoval-\nSanchez and Lopez-Mendoza in violation of their Fourth\nAmendment rights. The subsequent admission of any evi-\ndence secured pursuant to these unlawful arrests in civil de-\nportation proceedings would, in my view, also infringe those\nrights. The Government of the United States bears an ob-\nligation to obey the Fourth Amendment; that obligation is\nnot lifted simply because the law enforcement officers were\nagents of the Immigration and Naturalization Service, nor\nbecause the evidence obtained by those officers was to be\nused in civil deportation proceedings.\nSUPREME COURT OF THE UNITED STATES\nNo. 83-491\nIMMIGRATION AND NATURALIZATION SERVICE,\nPETITIONER ¿: ADAN LOPEZ-MENDOZA\nON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE NINTH CIRCUIT\n[July 5, 1984]\ndissenting\nJUSTICE WHITE, dissenting.\nholds that the exclusionary rule doeThe Court today holds that the exclusionary rule does not\nrtation proceedings Because I apply in civil deportation proceedings. Because I believe\nof the upon on that the conclusion of the majority is based upon an incorrect\nassessment of the costs and benefits of applying the rule in\nsuch proceedings, I respectfully dissent.¹\nThe paradigmatic case in which the exclusionary rule is ap-\nplied is when the prosecutor seeks to use evidence illegally\nobtained by law enforcement officials in his case-in-chief in a\ncriminal trial. In other classes of cases, the rule is applicable\nonly when the likelihood of deterring the unwanted conduct\noutweighs the societal costs imposed by exclusion of relevant\nevidence. United States V. Janis, 428 U. S. 433, 454 (1976).\nThus, the Court has, in a number of situations, refused to ex-\ntend the exclusionary rule to proceedings other than the\ncriminal trial itself. For example, in Stone V. Powell, 428\nU. S. 465 (1976), the Court held that the deterrent effect of\n: I also question the Court's finding that Lopez failed to object to admis-\nsion of the evidence. Ante. at T and n. 1. The Court of Appeals held that\nhe had made a proper objection. Lopez-Mendoza v. INS. 705 F. 2d 1059,\n1060. n. 1. (CA9 1983). and the Government did not seek review of that\nconclusion. Brief for Petitioner 8. n. 8. Moreover. the fact that changes in\nan opinion are made between the time of the slip opinion and the bound\nvolume has never before been considered evidence that the holding of\ncase is \"unsettled.\" See ante. at T. n. 1.\n83-491-DISSENT\n2\nINS l: LOPEZ-MENDOZA\nthe rule would not be reduced by refusing to allow a state\nprisoner to litigate a Fourth Amendment claim in federal ha-\nbeas corpus proceedings if he was afforded a full and fair\nopportunity to litigate it in state court. Similarly, in United\nStates V. Calandra, 414 U. S. 338, 351 (1974), we concluded\nthat \"[a]ny incremental deterrent effect which might be\nachieved by extending the rule to grand jury proceedings is\nuncertain at best.\" And in United States V. Janis, supra,\nwe declined to extend the exclusionary rule to bar the intro-\nduction in a federal civil proceeding of evidence unconstitu-\ntionally seized by a state law enforcement officer. In all of\nthese cases it was unquestioned that the illegally seized evi-\ndence would not be admissible in the case-in-chief of the pro-\nceeding for which the evidence was gathered; only its collat-\neral use was permitted.\nCivil deportation proceedings are in no sense \"collateral.\"\nthe\nThe majority correctly acknowledges that the \"primary ob-\ngent is \"to use evidence in the jective\" of the INS agent is \"to use evidence in the civil de-\nand that \"the agency officials portation proceeding\" and that \"the agency officials who ef-\narrest are the same officisfect the unlawful arrest are the same officials who\nsubsequently bring the deportation action.\" Ante, at 9-10.\nThe Government likewise concedes that INS agents are \"in\nthe business of conducting searches for and seizures of illegal\naliens for the purpose of bringing about their deportation.\"\nBrief for Petitioner 37. Thus, unlike the situation in Janis,\nthe conduct challenged here falls within \"the offending offi-\ncer's zone of primary interest.\" 428 U. S., at 458. The ma-\njority nonetheless concludes that application of the rule in\nsuch proceedings is unlikely to provide significant deter-\nrence. Because INS agents are law enforcement officials\nwhose mission is closely analogous to that of police officers\nand because civil deportation proceedings are to INS agents\nwhat criminal trials are to police officers, I cannot agree with\nthat assessment.\nThe exclusionary rule rests on the Court's belief that exclu-\nsion has a sufficient deterrent effect to justify its imposition,\n83-491-DISSENT\nINS L: LOPEZ-MENDOZA\n3\nand the Court has not abandoned the rule. As long as that is\nthe case, there is no principled basis for distinguishing be-\ntween the deterrent effect of the rule in criminal cases and in\ncivil deportation proceedings. The majority attempts to jus-\ntify the distinction by asserting that deportation will still be\npossible when evidence not derived from the illegal search or\nseizure is independently sufficient. Ante, at 10. However,\nthat is no less true in criminal cases. The suppression of\nsome evidence does not bar prosecution for the crime, and in\nmany cases even though some evidence is suppressed a con-\nviction will nonetheless be obtained.\nThe majority also suggests that the fact that most aliens\nelect voluntary departure dilutes the deterrent effect of the\nexclusionary rule, because the infrequency of challenges to\nadmission of evidence will mean that \"the consequences from\nthe point of view of the officer's overall arrest and deporta-\nrivial\nAnte. at 11 it IF unitionerecord will be trivial.\" Ante, at 11. It is true that a\nnded aliens elect voluntary demajority of apprehended aliens elect voluntary departure,\ner go through civil deportation pwhile à lesser number go through civil deportation proceed-\niller number are criminally prosings and a still smaller number are criminally prosecuted.\ndiminishes\nHowever, that fact no more diminishes the importance of the\nexclusionary sanction than the fact that many criminal de-\nfendants plead guilty dilutes the rule's deterrent effect in\ncriminal cases. The possibility of exclusion of evidence quite\nobviously plays a part in the decision whether to contest\neither civil deportation or criminal prosecution. Moreover,\nin concentrating on the incentives under which the individual\nagent operates to the exclusion of the incentives under which\nthe agency as a whole operates neglects the \"systemic\" deter-\nrent effect that may lead the agency to adopt policies and pro-\ncedures that conform to Fourth Amendment standards.\nSee, e. g., Dunaway V. New York, 442 U. S. 200, 221 (1979)\n(JUSTICE STEVENS, concurring).\nThe majority believes \"perhaps most important\" the fact\nthat the INS has a \"comprehensive scheme\" in place for de-\n83-491-DISSENT\n4\nINS L: LOPEZ-MENDOZA\nterring Fourth Amendment violations by punishing agents\nwho commit such violations, but it points to not a single in-\nstance in which that scheme has been invoked.2 Ante, at\n11-12. Also, immigration officers are instructed and exam-\nined in Fourth Amendment law, and it is suggested that this\neducation is another reason why the exclusionary rule is un-\nnecessary. Id., at 11. A contrary lesson could be discerned\nfrom the existence of these programs, however, when it is re-\ncalled that they were instituted during \"a legal regime in\nwhich the cases and commentators uniformly sanctioned the\ninvocation of the rule in deportation proceedings.\" Lopez-\nMendoza V. INS, 705 F. 2d 1059, 1071 (CA9 1983). Thus,\nrather than supporting a conclusion that the exclusionary\nrule is unnecessary, the existence of these programs instead\nsuggests that the exclusionary rule has created incentives for\nthe agency to ensure that its officers follow the dictates of the\nConstitution. Since the deterrent function of the rule is fur-\nther \"the béhavior of individual thered if it alters either \"the behavior of individual law en-\nor the policies of their departforcement officers or the policies of their departments,\"\non.\nU. S., at\nit\nUnited\nStates\nV.\nLeon,\nU.S.,\nat\n,\nit seems likely\nis deterrent effect that led to that it was the rule's deterrent effect that led to the pro-\ngrams to which the Court now points for its assertion that the\nrule would have no deterrent effect.\nThe suggestion that alternative remedies, such as civil\nsuits, provide adequate protection is unrealistic. Contrary\nto the situation in criminal cases, once the Government has\nimproperly obtained evidence against an illegal alien, he is\nremoved from the country and is therefore in no position to\nfile civil actions in federal courts. Moreover, those who are\nThe Government suggests that INS disciplinary rules are \"not mere\npaper procedures\" and that over a period of four years 20 officers were sus-\npended or terminated for misconduct toward aliens. Brief for Petitioner\n45, n. 28. The Government does not assert. however. that any of these\nofficers were disciplined for Fourth Amendment violations. and it appears\nthat the 11 officers who were terminated were terminated for rape or as-\nsault. See Brief for Respondent 60. n. 42.\n83-491-DISSENT\nINS 2: LOPEZ-MENDOZA\n5\nlegally in the country but are nonetheless subjected to illegal\nsearches and seizures are likely to be poor, uneducated, and\nmany will not speak English. It is doubtful that the threat\nof civil suits by these persons will strike fear into the hearts\nof those who enforce the Nation's immigration laws.\nIt is also my belief that the majority exaggerates the costs\nassociated with applying the exclusionary rule in this con-\ntext. Evidence obtained through violation of the Fourth\nAmendment is not automatically suppressed, and any inquiry\ninto the burdens associated with application of the exclusion-\nary rule must take that fact into account. In United States\nV. Leon, supra, we have held that the exclusionary rule is not\napplicable when officers are acting in objective good faith.\nThus, if the agents neither knew nor should have known that\nthey were acting contrary to the dictates of the Fourth\nAmendment, evidence will not be suppressed even if it is held\nas illegal.\nthat their conduct was illegal.\notes. anie. at 17-18. 11. 5. the BLAsthe majority notes, ante, at 17-18, n. 5, the BIA has\nridence will be suppressed if it already held that evidence will be suppressed if it results\ntions of constitutional standards. fromegregious violations of constitutional standards. Thus,\nthe mechanism for dealing with suppression motions exists\nand is utilized, significantly decreasing the force of the major-\nity's predictions of dire consequences flowing from \"even oc-\ncasional invocation of the exclusionary rule.\" Ante, at 15.\nAlthough the standard currently utilized by the BIA may not\nbe precisely coextensive with the good-faith exception, any\nincremental increase in the amount of evidence that is sup-\npressed through application of Leon is unlikely to be signifi-\ncant. Likewise, any difference that may exist between the\ntwo standards is unlikely to increase significantly the number\nof suppression motions filed.\nContrary to the view of the majority, it is not the case that\nSandoval's \"unregistered presence in this country, without\nmore. constitutes a crime.\" Ante, at 14. Section 275 of the\nImmigration and Nationality Act makes it a crime to enter\n83-491-DISSENT\n6\nINS 2: LOPEZ-MENDOZA\nthe United States illegally. 8 U.S. C. § 1325.3 The first\noffense constitutes a misdemeanor, and subsequent offenses\nconstitute felonies. Ibid. Those few cases that have con-\nstrued this statute have held that a violation takes place at\nthe time of entry and that the statute does not describe a con-\ntinuing offense. Gonzales V. City of Peoria, 722 F. 2d 468,\n473-474 (CA9 1983); United States V. Rincon-Jiminez, 595 F.\n2d 1192, 1194 (CA9 1979). Although this Court has not con-\nstrued the statute, it has suggested in dictum that this inter-\npretation is correct, United States V. Cores, 356 U. S. 405,\n408, n. 6, and it is relatively clear that such an interpretation\nis most consistent with the statutory language. Therefore,\nit is simply not the case that suppressing evidence in deporta-\ntion proceedings will \"allo[w] the criminal to continue in the\ncommission of an ongoing crime.\" Ante, at 14. It is true\nthat some courts have construed § 276 of the Act, 8 U. S. C.\n§ 1326, which applies to aliens previously deported who enter\nUnited States. to describe a commarenfound in the United States, to describe a continuing\nates V. Brano. 328 F. Supp. 815offense. United States V. Bruno, 328 F. Supp. 815 (W. D.\nates V. Alearado-Soto 120 F SiMo. 1971); United States V. Alvarado-Soto, 120 F. Supp. 848\ned\nStates\nV.\nRincon-Juninez sup(SD Cal. 1954); United States V. Rincon-Jiminez, supra (dic-\ntum). But see United States V. DiSantillo, 615 F. 2d 128\n(CA3 1980). In such cases, however, the Government will\nhave a record of the prior deportation and will have little\n\"Section 275 provides in part:\n\"Any alien who (1) enters the United States at any time or place other than\nas designated by immigration officers, or (2) eludes examination or inspec-\ntion by immigration officers. or (3) obtains entry to the United States by a\nwillfully false or misleading representation\nshall be guilty of a [crime].\n8 U. S. C. § 1325.\nSection 276 provides in part:\n\"Any alien who-\n(1) has been arrested and deported or excluded and deported, and\nthereafter\n(2) enters, attempts to enter, or is at any time found in, the United\nStates\nshall be guilty of a felony.\" 8 U. S. C. § 1326.\n83-491-DISSENT\nINS L'. LOPEZ-MENDOZA\n7\nneed for any evidence that might be suppressed through\napplication of the exclusionary rule. See United States V.\nPineda-Chinchilla, 712 F. 2d 942 (CA5 1983), cert. denied,\nU.S.\n(1983) (illegality of arrest does not bar intro-\nduction of INS records to demonstrate prior deportation).\nAlthough the majority relies on the registration provisions\nof 8 U. S. C. §§ § 1302 and 1306 for its \"continuing crime\" argu-\nment, those provisions provide little support for the general\nrule laid down that the exclusionary rule does not apply in\ncivil deportation proceedings. First, § 1302 requires that\naliens register within 30 days of entry into the country.\nThus, for the first 30 days failure to register is not a crime.\nSecond, § 1306 provides that only willful failure to register is\na misdemeanor. Therefore, \"unregistered presence in this\ncountry, without more,\" ante, at 14, does not constitute a\ncrime; rather, unregistered presence plus willfulness must be\nshown. There is no finding that Sandoval willfully failed to\nlecessary predicate to the concius register, which is a necessary predicate to the conclusion that\nntinuing crime. Third. only aliehe is engaged in a continuing crime. Third, only aliens four-\nr older are required to registeteen years of age or older are required to register; those\nof age are to be registered by Hunder fourteen years of age are to be registered by their par-\nents or guardian. By the majority's reasoning, therefore,\nperhaps the exclusionary rule should apply in proceedings to\ndeport children under fourteen, since their failure to register\ndoes not constitute a crime.\nApplication of the rule, we are told, will also seriously in-\nterfere with the \"streamlined\" nature of deportation hearings\nbecause \"[n]either the hearing officers nor the attorneys par-\nticipating in those hearings are likely to be well-versed in the\nintricacies of Fourth Amendment law.\" Ante, at 15. Yet\nthe majority deprecates the deterrent benefit of the exclu-\nsionary rule in part on the ground that immigration officers\nreceive a thorough education in Fourth Amendment law.\nId., at 11. The implication that hearing officers should defer\nto law enforcement officers' superior understanding of con-\nstitutional principles is startling indeed.\n83-491-DISSENT\n8\nINS L'. LOPEZ-MENDOZA\nPrior to the decision of the Board of Immigration Appeals\nin Matter of Sandoval, 17 I. & N. Dec. 70 (1979), neither the\nBoard nor any court had held that the exclusionary rule did\nnot apply in civil deportation proceedings. Lopez-Mendoza\nV. INS, 705 F. 2d, at 1071. The Board in Sandoval noted\nthat there were \"fewer than fifty\" BIA proceedings since\n1952 in which motions had been made to suppress evidence on\nFourth Amendment grounds. This is so despite the fact that\n\"immigration law practitioners have been informed by the\nmajor treatise in their field that the exclusionary rule was\navailable to clients facing deportation. See 1A C. Gordon\nand H. Rosenfield, Immigration Law and Procedure §5.2c at\n5-31 (rev. ed. 1980).\" Lopez-Mendoza V. INS, supra, at\n1071. The suggestion that \"[t]he prospect of even occasional\ninvocation of the exclusionary rule might significantly change\nand complicate the character of these proceedings,\" ante, at\ncredit\nThe\nthat 15, is thus difficult to credit. The simple fact is that prior to\nrule was available in civil dep1979 the exclusionary rule was available in civil deportation\nre is no indication that it significaproceedings and there is no indication that it significantly in-\nbility of the INS to function\nterfered with the ability of the INS to function.\nitv\nsuggests\nthat\nnt\nFinally, the majority suggests that application of the exclu-\nsionary rule might well result in the suppression of large\namounts of information legally obtained because of the\n\"crowded and confused circumstances\" surrounding mass ar-\nrests. Ante, at 16. The result would be that INS agents\nwould have to keep a \"precise account of exactly what hap-\npened in each particular arrest,\" which would be impractical\nconsidering the \"massed numbers of ascertainably illegal\naliens.\" Ante, at 16. Rather than constituting a rejection\nof the application of the exclusionary rule in civil deportation\nproceedings, however, this argument amounts to a rejection\nof the application of the Fourth Amendment to the activities\nof INS agents. If the pandemonium attending immigration\narrests is so great that violations of the Fourth Amendment\ncannot be ascertained for the purpose of applying the exclu-\nsionary rule, there is no reason to think that such violations\n83-491-DISSENT\nINS l'. LOPEZ-MENDOZA\n9\ncan be ascertained for purposes of civil suits or internal disci-\nplinary proceedings, both of which are proceedings that the\nmajority suggests provide adequate deterrence against\nFourth Amendment violations. The Court may be willing to\nthrow up its hands in dismay because it is administratively\ninconvenient to determine whether constitutional rights have\nbeen violated, but we neglect our duty when we subordinate\nconstitutional rights to expediency in such a manner. Par-\nticularly is this SO when, as here, there is but a weak showing\nthat administrative efficiency will be seriously compromised.\nIn sum, I believe that the costs and benefits of applying the\nexclusionary rule in civil deportation proceedings do not dif-\nfer in any significant way from the costs and benefits of ap-\nplying the rule in ordinary criminal proceedings. Unless the\nexclusionary rule is to be wholly done away with and the\nCourt's belief that it has deterrent effects abandoned, it\ndeportation proceedings when should be applied in deportation proceedings when evidence\nby deliberate violations of the hasubeen obtained by deliberate violations of the Fourth\nconduct a reasonably comperentAmendment or by conduct a reasonably competent officer\nary to the Constitution. Accordwould know is contrary to the Constitution. Accordingly, I\ndissent.\nSUPREME COURT OF THE UNITED STATES\nNo. 83-491\nIMMIGRATION AND NATURALIZATION SERVICE,\nPETITIONER v. ADAN LOPEZ-MENDOZA\nON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE NINTH CIRCUIT\n[July 5, 1984]\ndissenting.\nJUSTICE MARSHALL, dissenting.\nWHITE that application to this alagree with JUSTICE WHITE that application to this case of\nodied in the decisions of the (the mode of analysis embodied in the decisions of the Court in\n428 U. S. 433 (1976), and United States V. Janis, 428 U. S. 433 (1976), and United\nStates V. Calandra, 414 U. S. 338 (1974), compels the conclu-\nsion that the exclusionary rule should apply in civil deporta-\ntion proceedings. Ante, at - However, I continue to\nbelieve that that mode of analysis fails to reflect the consti-\ntutionally mandated character of the exclusionary rule. See\nUnited States V. Leon, ante, at\n(BRENNAN, J., joined by\nMARSHALL, J., dissenting); United States V. Janis, 428\nU.S., at 460 (BRENNAN, J., joined by MARSHALL, J., dis-\nsenting). In my view, a sufficient reason for excluding from\ncivil deportation proceedings evidence obtained in violation of\nthe Fourth Amendment is that there is no other way to\nachieve \"the twin goals of enabling the judiciary to avoid the\ntaint of partnership in official lawlessness and of assuring the\npeople-all potential victims of unlawful government con-\nduct-that the government would not profit from its lawless\nbehavior, thus minimizing the risk of seriously undermining\npopular trust in government.\" United States V. Calandra,\n414 U.S., at 357 (BRENNAN, J., joined by MARSHALL, J.,\ndissenting).\nSUPREME COURT OF THE UNITED STATES\nNo. 83-491\nIMMIGRATION AND NATURALIZATION SERVICE,\nPETITIONER v. ADAN LOPEZ-MENDOZA\nON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE NINTH CIRCUIT\n[July 5, 1984]\nJUSTICE STEVENS, dissenting.\nBecause the Court has not yet held that the rule of United\nStates V. Leon,\nU.S.\nhas any application to war-\nao not rom the portion OI rantless searches, I do not join the portion of JUSTICE\nat relies on that case. I do. hoWHITE'S opinion that relies on that case. I do, however,\ninder of his dissenting opinion. agree with the remainder of his dissenting opinion.\nexclusioning\nrule\nNOTE: Where it is feasible. a syllabus (headnote) will be released. as is\nbeing done in connection with this case. at the time the opinion is issued.\nThe syllabus constitutes no part of the opinion of the Court but has been pre-\npared by the Reporter of Decisions for the convenience of the reader. See\nUnited States V. Detroit Lumber Co., 200 U. S. 321. 337.\nSUPREME COURT OF THE UNITED STATES\nSyllabus\nMASSACHUSETTS v. SHEPPARD\nCERTIORARI TO THE SUPREME JUDICIAL COURT OF\nMASSACHUSETTS\nNo. 82-963. Argued January 17, 1984-Decided July 5, 1984\nrathered 111 the investigation U1 a nume On the basis of evidence gathered in the investigation of a homicide in the\nton a police defective drafted an affidavit Roxbury section of Boston. a police detective drafted an affidavit to sup-\nin arrest warrant and a search warrant auportan application for an arrest warrant and a search warrant authoriz-\nndent's residence The affidavit stated ting the search of respondent's residence. The affidavit stated that the\nfor certain described items including ciorpolice wished to search for certain described items, including clothing of\nthe victim and a blunt instrument that might have been used on the vic-\ntim. The affidavit was reviewed and approved by the District Attor-\nney. Because it was Sunday. the local court was closed, and the police\nhad a difficult time finding a warrant application form. The detective\nfinally found a warrant form previously used in another district to search\nfor controlled substances. After making some changes in the form, the\ndetective presented it and the affidavit to a judge at his residence, in-\nforming him that the warrant form might need to be further changed.\nConcluding that the affidavit established probable cause to search re-\nspondent's residence and telling the detective that the necessary changes\nin the warrant form would be made. the judge made some changes, but\ndid not change the substantive portion, which continued to authorize a\nsearch for controlled substances. nor did he alter the form so as to incor-\nporate the affidavit. The judge then signed the warrant and returned it\nand the affidavit to the detective, informing him that the warrant was\nsufficient authority in form and content to carry out the requested\nsearch. The ensuing search of respondent's residence by the detective\nand other police officers was limited to the items listed in the affidavit,\nand several incriminating pieces of evidence were discovered. There-\nafter. respondent was charged with first-degree murder. At a pretrial\nsuppression hearing. the trial judge ruled that notwithstanding the war-\nrant was defective under the Fourth Amendment in that it did not par-\nticularly describe the items to be seized. the incriminating evidence\nI\nII\nMASSACHUSETTS is SHEPPARD\nSyllabus\ncould be admitted because the police had acted in good faith in executing\nwhat they reasonably thought was a valid warrant. At the subsequent\ntrial. respondent was convicted. The Massachusetts Supreme Judicial\nCourt held that the evidence should have been suppressed.\nHeld: Federal law does not require the exclusion of the disputed evidence.\nPp. 5-8.\n(a) The exclusionary rule should not be applied when the officer con-\nducting the search acted in objectively reasonable reliance on a warrant\nissued by a detached and neutral magistrate that subsequently is deter-\nmined to be invalid. United States V. Leon, ante, p. P.5.\n(b) Here. there was an objectively reasonable basis for the officers'\nmistaken belief that the warrant authorized the search they conducted.\nThe officers took every step that could reasonably be expected of them.\nAt the point where the judge returned the affidavit and warrant to the\ndetective. a reasonable police officer would have concluded. as the detec-\ntive did. that the warrant authorized a search of the materials outlined in\nthe affidavit. P. 6.\n(c) A police officer is not required to disbelieve a judge who has just\nadvised him that the warrant he possesses authorizes him to conduct the\nsearch he has requested. Pp. 6-7.\n(d) An error of constitutional dimensions may have been committed\n\"with respect to the issuance of the warrant in this case, but it was the\nficer. who made the critical mistake. Sujudges-not the police officer, who made the critical mistake. Suppress-\ne judge failed to make all the necessary ingrevidence because the judge failed to make all the necessary clerical\nassurance that such changes would be macorrections despite his assurance that such changes would be made will\nfunction that exclusionary was the deterrent function that the exclusionary rule was designed\nto achieve. Pp. 7-8.\n387 Mass. 488. 441 N. E. 2d 725, reversed and remanded.\nWHITE. J.. delivered the opinion of the Court. in which BURGER. C.J.,\nand BLACKMUN, POWELL. REHNQUIST. and O'CONNOR. JJ., joined. STE-\nVENS, J., filed an opinion concurring in the judgment (see No. 82-1771).\nBRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined\n(see No. 82-1771).\nNOTICE: This opinion is subject to formal revision before publication in the\npreliminary print of the United States Reports. Readers are requested to\nnotify the Reporter of Decisions. Supreme Court of the United States. Wash-\nington. D. C. 20543. of any typographical or other formal errors. in order\nthat corrections may be made before the preliminary print goes to press.\nSUPREME COURT OF THE UNITED STATES\nNo. 82-963\nMASSACHUSETTS, PETITIONER v.\nOSBORNE SHEPPARD\nON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT\nOF MASSACHUSETTS\n[July 5. 1984]\nlivered\nthe\nopinion\nAT\nJUSTICE WHITE delivered the opinion of the Court.\nthe application of the rules articuThis case involves the application of the rules articulated\nV. Leon. ane. to a situation itoday in United States V. Leon, ante, to a situation in which\npursuant to a warrant subsepolice officers seize items pursuant to a warrant subsequently\nis\ninvalidated because of a technical error on the part of the is-\nsuing judge.\nI\nThe badly burned body of Sandra Boulware was discovered\nin a vacant lot in the Roxbury section of Boston at approxi-\nmately 5 a. m., Saturday, May 5, 1979. An autopsy revealed\nthat Boulware had died of multiple compound skull fractures\ncaused by blows to the head. After a brief investigation, the\npolice decided to question one of the victim's boyfriends, Os-\nborne Sheppard. Sheppard told the police that he had last\nseen the victim on Tuesday night and that he had been at a\nlocal gaming house (where cards games were played) from 9\np. m. Friday until 5 a. m. Saturday. He identified several\npeople who would be willing to substantiate the latter claim.\nBy interviewing the people Sheppard had said were at the\ngaming house on Friday night, the police learned that al-\nthough Sheppard was at the gaming house that night, he had\nborrowed an automobile at about 3 a. m. Saturday morning in\norder to give two men a ride home. Even though the trip\nnormally took only fifteen minutes. Sheppard did not return\nwith the car until nearly 5 a. m.\n82-963-OPINION\n2\nMASSACHUSETTS v. SHEPPARD\nOn Sunday morning, police officers visited the owner of the\ncar Sheppard had borrowed. He consented to an inspection\nof the vehicle. Bloodstains and pieces of hair were found on\nthe rear bumper and within the trunk compartment. In ad-\ndition, the officers noticed strands of wire in the the trunk\nsimilar to wire strands found on and near the body of the vic-\ntim. The owner of the car told the officers that when he last\nused the car on Friday night, shortly before Sheppard bor-\nrowed it, he had placed articles in the trunk and had not no-\nticed any stains on the bumper or in the trunk.\nOn the basis of the evidence gathered thus far in the inves-\ntigation, Detective Peter O'Malley drafted an affidavit de-\nsigned to support an application for an arrest warrant and a\nsearch warrant authorizing a search of Sheppard's residence.\nThe affidavit set forth the results of the investigation and\nstated that the police wished to search for\n\"[a] fifth bottle of amaretto liquor, 2 nickel bags of mari-\n3\njacket\nthat\nhas\nbeen\njuana, a woman's jacket that has been described as\ncoal) any possessions of Sandra black-grey (charcoal), any possessions of Sandra D.\ntype wire and rope that match hBoulware, similar type wire and rope that match those\nSandra D. Boulware, or in the abone the body of Sandra D. Boulware, or in the above\nbhmi\nThunderbird. A blunt instrument that might have been\nused on the victim, men's or women's clothing that may\nhave blood, gasoline burns on them. Items that may\nhave fingerprints of the victim.\"\nDetective O'Malley showed the affidavit to the district attor-\nney, the district attorney's first assistant, and a sergeant,\nwho all concluded that it set forth probable cause for the\nsearch and the arrest. 387 Mass. 488, 492, 441 N. E. 2d 725,\n727 (1982).\nBecause it was Sunday, the local court was closed, and the\npolice had a difficult time finding a warrant application form.\n1 The liquor and marihuana were included in the request because\nSheppard had told the officers that when he was last with the victim. the\ntwo had purchased two bags of marihuana and a fifth of amaretto before\ngoing to his residence.\n82-963-OPINION\nMASSACHUSETTS e: SHEPPARD\n3\nDetective O'Malley finally found a warrant form previously in\nuse in the Dorchester District. The form was entitled\n\"Search Warrant-Controlled Substance G. L. C. 276 §§ 1\nthrough 3A.\" Realizing that some changes had to be made\nbefore\nthe form could be used to authorize the search requested in\nthe affidavit, Detective O'Malley deleted the subtitle \"con-\ntrolled substance\" with a typewriter. He also substituted\n\"Roxbury\" for the printed \"Dorchester\" and typed Shep-\npard's name and address into blank spaces provided for that\ninformation. However, the reference to \"controlled sub-\nstance\" was not deleted in the portion of the form that consti-\ntuted the warrant application and that, when signed, would\nconstitute the warrant itself.\nDetective O'Malley then took the affidavit and the warrant\nform to the residence of a judge who had consented to con-\nsider the warrant application. The judge examined the affi-\nhe would authorize the searcidavité and stated that he would authorize the search as re-\nO'Malley offered the warrant quested. Detective O'Malley offered the warrant form and\nthe form as presented dealt wstatedithat he knew the form as presented dealt with con-\nHe showed the judge where trolled isubstances. He showed the judge where he had\ncrossed out the subtitles. After unsuccessfully searching for\na more suitable form, the judge informed O'Malley that he\nwould make the necessary changes so as to provide a proper\nsearch warrant. The judge then took the form, made some\nchanges on it. and dated and signed the warrant. However,\nhe did not change the substantive portion of the warrant,\nwhich continued to authorize a search for controlled sub-\nstances:2 nor did he alter the form so as to incorporate the\naffidavit. The judge returned the affidavit and the warrant\nto O'Malley, informing him that the warrant was sufficient\nauthority in form and content to carry out the search as re-\n\"The warrant directed the officers to \"search for any controlled sub-\nstance. article. implement or other paraphernalia used in. for. or in connec-\ntion with the unlawful possession or use of any controlled substance. and to\nseize and securely keep the same until final action\n82-963-OPINION\n4\nMASSACHUSETTS L'. SHEPPARD\nquested.³ O'Malley took the two documents and, accompa-\nnied by other officers, proceeded to Sheppard's residence.\nThe scope of the ensuing search was limited to the items\nlisted in the affidavit, and several incriminating pieces of evi-\ndence were discovered. Sheppard was then charged with\nfirst degree murder.\nAt a pretrial suppression hearing, the trial judge concluded\nthat the warrant failed to conform to the commands of the\nFourth Amendment because it did not particularly describe\nthe items to be seized. The judge ruled, however, that the\nevidence could be admitted notwithstanding the defect in the\nwarrant because the police had acted in good faith in execut-\ning what they reasonably thought was a valid warrant.\nApp. 35a. At the subsequent trial, Sheppard was convicted.\nOn appeal, Sheppard argued that the evidence obtained\npursuant to the defective warrant should have been sup-\npressed. The Supreme Judicial Court of Massachusetts\nof the justices concluded that agreed. A plurality of the justices concluded that although\nat there is no evidence in the record Sheppard contends that there is no evidence in the record that the\nter\nhe\nmade\nthe changes. Brief for Rejudgelspoke to O'Malley after he made the changes. Brief for Respondent\n11. n.4. However, the trial judge expressly found that the judge \"in-\nformed Detective O'Malley that the warrant as delivered over was suffi-\ncient authority in form and content to carry out the search as requested.\"\nApp. 27a. and a plurality of the Supreme Judicial Court noted that finding\nwithout any apparent disapproval. 387 Mass., at 497, 441 N. E. 2d. at\n730. Since it would have been reasonable for O'Malley to infer that the war-\nrant was valid when the judge made some changes after assuring him that\nthe form would be corrected. an express assurance that the warrant was\nadequate would add little to the reasonableness of O'Malley's belief that the\nnecessary changes had been made. Therefore. nothing would be served\nby combing the record to determine whether there is sufficient evidence to\nsupport the trial court's finding that the judge spoke to O'Malley after sign-\ning the warrant.\nThe police found a pair of bloodstained boots, blood stains on the con-\ncrete floor. a woman's earring with bloodstains on it. a bloodstained enve-\nlope. a pair of men's jockey shorts and women's leotards with blood on\nthem, three types of wire, and a woman's hairpiece, subsequently identi-\nfied as the victim's.\n82-963-OPINION\nMASSACHUSETTS 2: SHEPPARD\n5\n\"the police conducted the search in a good faith belief, reason-\nably held, that the search was lawful and authorized by the\nwarrant issued by the judge,\" 387 Mass., at 503, 441 N. E.\n2d, at 733, the evidence had to be excluded because this\nCourt had not recognized a good-faith exception to the exclu-\nsionary rule. Two justices combined in a separate concur-\nrence to stress their rejection of the good-faith exception,\nand one justice dissented, contending that since exclusion of\nthe evidence in this case would not serve to deter any police\nmisconduct, the evidence should be admitted. We granted\ncertiorari and set the case for argument in conjunction with\nUnited States V. Leon, ante.\nII\nHaving already decided that the exclusionary rule should\nnot be applied when the officer conducting the search acted in\nobjectively reasonable reliance on a warrant issued by a de-\ntached and neutral magistrate that subsequently is deter-\nat\n; the sole issue beforminedato be invalid, id., at\n, the sole issue before us in\nhe officers reasonably believ this case is whether the officers reasonably believed that the\nwas authorized by a valid wsearch they conducted was authorized by a valid warrant.3\nBoth the trial court. App. 32a. and a majority of the Supreme Judicial\nCourt. 387 Mass., at 500-501. 441 N. E. 2d. at 731-732: id., at 510. 441\nN. E. 2d. at 737 (Liacos. J.. concurring). concluded that the warrant was\nconstitutionally defective because the description in the warrant was com-\npletely inaccurate and the warrant did not incorporate the description con-\ntained in the affidavit. Petitioner does not dispute this conclusion.\nPetitioner does argue, however. that even though the warrant was\ninvalid. the search was constitutional because it was reasonable within the\nmeaning of the Fourth Amendment. Brief for Petitioner 28-32. The uni-\nformly applied rule is that a search conducted pursuant to a warrant that\nfails to conform to the particularity requirement of the Fourth Amendment\nis unconstitutional. Stanford V. Texas. 379 U.S. 476 (1965): United\nStates v. Cardwell. 680 F. 2d 75. 77-78 (CA9 1982): United States v. Cro-\nzier. 674 F. 2d 1293, 1299 (CA9 1982): United States v. Klein, 565 F. 2d\n183. 185 (CA1 1977): United States v. Gardner. 537 F. 2d 861. 862 (CA6\n1976): United States v. Marti. 421 F. 2d 1263. 1268-1269 (CA2 1970).\nThat rule is in keeping with the well-established principle that \"except in\ncertain carefully defined classes of cases. a search of private property with-\n82-963-OPINION\n6\nMASSACHUSETTS L'. SHEPPARD\nThere is no dispute that the officers believed that the war-\nrant authorized the search that they conducted. Thus, the\nonly question is whether there was an objectively reasonable\nbasis for the officers' mistaken belief. Both the trial court,\nApp. 35a, and a majority of the Supreme Judicial Court, 387\nMass., at 503, 441 N. E. 2d, at 733; id., at 524-525, 441 N. E.\n2d, at 745 (Lynch, J., dissenting), concluded that there was.\nWe agree.\nThe officers in this case took every step that could reason-\nably be expected of them. Detective O'Malley prepared an\naffidavit which was reviewed and approved by the District\nAttorney. He presented that affidavit to a neutral judge.\nThe judge concluded that the affidavit established probable\ncause to search Sheppard's residence, App. 26a, and in-\nformed O'Malley that he would authorize the search as re-\nquested. O'Malley then produced the warrant form and in-\nformed the judge that it might need to be changed. He was\nthe necessary changes would btold by the judge that the necessary changes would be made.\njudge make some changes and He then observed the judge make some changes and received\naffidavit. At this point. a reathe warrant and the affidavit. At this point, a reasonable\nave concluded. as Malley did police officer would have concluded. as O'Malley did, that the\nwarrant authorized a search for the materials outlined in the\naffidavit.\nSheppard contends that since O'Malley knew the warrant\nform was defective, he should have examined it to make sure\nthat the necessary changes had been made. However, that\nargument is based on the premise that O'Malley had a duty to\ndisregard the judge's assurances that the requested search\nwould be authorized and the necessary changes would be\nmade. Whatever an officer may be required to do when he\nout proper consent is 'unreasonable' unless it has been authorized by a valid\nwarrant.\" Camara V. Municipal Court. 387 U. S. 523, 528-529 (1967).\nSee Steagald V. United States. 451 U. S. 204. 211-212 (1981): Jones V.\nUnited States, 357 U. S. 493. 499 (1958). Whether the present case fits\ninto one of those carefully defined classes is a fact-bound issue of little im-\nportance since similar situations are unlikely to arise with any regularity.\n82-963-OPINION\nMASSACHUSETTS L'. SHEPPARD\n7\nexecutes a warrant without knowing beforehand what items\nare to be seized,\" we refuse to rule that an officer is required\nto disbelieve a judge who has just advised him, by word and\nby action, that the warrant he possesses authorizes him to\nconduct the search he has requested. In Massachusetts, as\nin most jurisdictions, the determinations of a judge acting\nwithin his jurisdiction, even if erroneous, are valid and bind-\ning until they are set aside under some recognized procedure.\nStreeter V. City of Worcester, 336 Mass. 469, 472, 146 N. E.\n2d 514, 517 (1957); Moll V. Township of Wakefield, 274 Mass.\n505, 507, 175 N. E. 81, 82 (1931). If an officer is required to\naccept at face value the judge's conclusion that a warrant\nform is invalid, there is little reason why he should be ex-\npected to disregard assurances that everything is all right,\nespecially when he has alerted the judge to the potential\nproblems.\nIn -sum, the police conduct in this case clearly was objec-\nlargely error-free. An errortivelyrreasonable and largely error-free. An error of con-\nmay have been committed stitutional dimensions may have been committed with re-\nthe warrant. but it was the judpectito the issuance of the warrant. but it was the judge, not\nmade\nthe\nitical\nmistake.\nThe police officers, who made the critical mistake. \"[T]he ex-\nclusionary rule was adopted to deter unlawful searches by po-\nlice, not to punish the errors of magistrates and judges.\" Il-\nlinois v. Gates, 462 U.S.\n,\n(1983) (WHITE, J.,\nconcurring in the judgment). Suppressing evidence be-\n\"Normally. when an officer who has not been involved in the application\nstage receives a warrant, he will read it in order to determine the object of\nthe search. In this case. Detective O'Malley. the officer who directed the\nsearch. knew what items were listed in the affidavit presented to the\njudge, and he had good reason to believe that the warrant authorized the\nseizure of those items. Whether an officer who is less familiar with the\nwarrant application or who has unalleviated concerns about the proper\nscope of the seach would be justified in failing to notice a defect like the one\nin the warrant in this case is an issue we need not decide. We hold only\nthat it was not unreasonable for the police in this case to rely on the judge's\nassurances that the warrant authorized the search they had requested.\nThis is not an instance in which \"it is plainly evident that a magistrate\n82-963-OPINION\n8\nMASSACHUSETTS ¿. SHEPPARD\ncause the judge failed to make all the necessary clerical cor-\nrections despite his assurances that such changes would be\nmade will not serve the deterrent function that the exclusion-\nary rule was designed to achieve. Accordingly, federal law\ndoes not require the exclusion of the disputed evidence in this\ncase. The judgment of the Supreme Judicial Court is there-\nfore reversed, and the case is remanded for further proceed-\nings not inconsistent with this opinion.\nIt is so ordered.\nor judge had no business issuing a warrant.\" Illinois v. Gates. 462 U.S.,\nat\n(WHITE. J., concurring in the judgment). The judge's error was\nnot in concluding that a warrant should issue but in failing to make the nec-\nessary changes on the form. Indeed. Sheppard admits that if the judge\nhad crossed out the reference to controlled substances. written \"see at-\ntached affidavit\" on the form, and attached the affidavit to the warrant, the\nwarrant would have been valid. Tr. of Oral Arg. 27. 50. See United\nStates V. Johnson. 690 F. 2d 60, 64-65 (CA3 1982). cert. denied. U.S.\n(1983): In re Property Belonging to Talk of the Town Bookstore. Inc.,\n614 F. 2d 1317. 1318-1319 (CA9 1981): United States v. Johnson, 541 F. 2d\n1311. 1315-1316 (CA8 1976): United States v. Womack. 509 F. 2d 368. 382\n(CADC 1974): Commonwealth v. Todisco, 363 Mass. 415, 450. 294 N. E. 2d\n860. 864 (1973).\nexclusing rule\nNOTE: Where it is feasible, a syllabus (headnote) will be released, as is\nbeing done in connection with this case, at the time the opinion is issued.\nThe syllabus constitutes no part of the opinion of the Court but has been pre-\npared by the Reporter of Decisions for the convenience of the reader. See\nUnited States V. Detroit Lumber Co., 200 U. S. 321, 337.\nSUPREME COURT OF THE UNITED STATES\nSyllabus\nSEGURA ET AL. v. UNITED STATES\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR\nTHE SECOND CIRCUIT\nNo. 82-5298. Argued November 9, 1983-Decided July 5, 1984\nthat petitioners probably trafficking Acting on information that petitioners probably were trafficking in cocaine\nNew York Time Tack Force from their apartment, New York Drug Enforcement Task Force agents\nof petitioners. Thereafter, upon observingegan a surveillance of petitioners. Thereafter, upon observing peti-\na bulky package LO one Parra at 2 restaurantioner Colon deliver a bulky package to one Parra at a restaurant park-\noner Segura and one Rivudalla-Vidal visited ingidot, while petitioner Segura and one Rivudalla-Vidal visited inside\nthe restaurant, the agents followed Parra and Rivudalla-Vidal to their\napartment and stopped them. Parra was found to possess cocaine, and\nshe and Rivudalla-Vidal were immediately arrested. After being ad-\nvised of his constitutional rights, Rivudalla-Vidal admitted that he had\npurchased the cocaine from petitioner Segura and confirmed that peti-\ntioner Colon had made the delivery at the restaurant. Task Force\nagents were then authorized by an Assistant United States Attorney to\narrest petitioners, and were advised that a search warrant for petition-\ners' apartment probably could not be obtained until the following day but\nthat the agent should secure the premises to prevent destruction of evi-\ndence. Later that same evening, the agents arrested petitioner Segura\nin the lobby of petitioners' apartment building, took him to the apart-\nment, knocked on the door, and, when it was opened by petitioner Colon,\nentered the apartment without requesting or receiving permission. The\nagents then conducted a limited security check of the apartment and in\nthe process observed, in plain view, various drug paraphernalia. Peti-\ntioner Colon was then arrested, and both petitioners were taken into\ncustody. Two agents remained in the apartment awaiting the warrant\nbut because of \"administrative delay\" the search warrant was not issued\nuntil some 19 hours after the initial entry into the apartment. In the\nsearch pursuant to the warrant, the agents discovered, inter alia, co-\ncaine and records of narcotics transactions. These items were seized,\ntogether with those observed during the security check. The District\nI\nII\nSEGURA v. UNITED STATES\nSyllabus\nCourt granted petitioners' pretrial motion to suppress all the seized evi-\ndence. The Court of Appeals held that the evidence discovered in plain\nview on the initial entry, but not the evidence seized during the warrant\nsearch, must be suppressed. Petitioners were subsequently convicted\nof violating federal drug laws, and the Court of Appeals affirmed.\nHeld:\n1. The exclusionary rule reaches not only primary evidence obtained\nas a direct result of an illegal search or seizure, but also evidence later\ndiscovered and found to be derivative of an illegality or \"fruit of the poi-\nsonous tree.\" Nardone V. United States, 308 U. S. 338, 341. The ex-\nclusionary rule does not apply, however, if the connection between the\nillegal police conduct and the discovery and seizure of the evidence is \"so\nattenuated as to dissipate the taint,\" ibid., as, for example, where the\npolice had an \"independent source\" for discovery of the evidence.\nSilverthorne Lumber Co. V. United States, 251 U. S. 385. Pp. 7-9.\n2. Here, there was an independent source for the challenged evidence;\nthe evidence was discovered during a search of petitioners' apartment\npursuant to a valid warrant. The information on which the warrant was\nsecured came from sources wholly unconnected with the initial entry and\nwas known to the agents well before that entry. Hence, whether the\nor\nnot\nis\nirrelevant\nto\nthe\nadmissibility\nof\nheitial entry was illegal or not is irrelevant to the admissibility of the evi-\nof\nthe\nevidence\n15\nnot\nwarranted\nas\nderivative\ndence, and exclusion of the evidence is not warranted as derivative or as\ntree.\nPp.\n18-21\n\"fruit of the poisonous tree.\" Pp. 18-21.\n697 F. 2d 300, affirmed.\nBURGER, C. J., announced the judgment of the Court and delivered the\nopinion of the Court with respect to Parts I, II, III, V, and VI, in which\nWHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined, and an opinion\nwith respect to Part IV, in which O'CONNOR, J., joined. STEVENS, J.,\nfiled a dissenting opinion, in which BRENNAN, MARSHALL, and BLACK-\nMUN, JJ., joined.\nNOTICE: This opinion is subject to formal revision before publication in the\npreliminary print of the United States Reports. Readers are requested to\nnotify the Reporter of Decisions, Supreme Court of the United States. Wash-\nington. D. C. 20543, of any typographical or other formal errors, in order\nthat corrections may be made before the preliminary print goes to press.\nSUPREME COURT OF THE UNITED STATES\nNo. 82-5298\nANDRES SEGURA AND LUZ MARINA COLON,\nPETITIONERS v. UNITED STATES\nON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE SECOND CIRCUIT\nLiuiv 5.\n[July 5, 1984]\nTICE delivered the opinion of the OTHE CHIEF JUSTICE delivered the opinion of the Court.*\ntiorari to decide whether. because engranted certiorari to decide whether, because of an\nthe Fourth Amendment reminearlier illegal entry, the Fourth Amendment requires sup-\npression of evidence seized later from a private residence\npursuant to a valid search warrant which was issued on in-\nformation obtained by the police before the entry into the\nresidence.\nI\nResolution of this issue requires us to consider two sepa-\nrate questions: first, whether the entry and internal securing\nof the premises constituted an impermissible seizure of all the\ncontents of the apartment, seen and unseen; second, whether\nthe evidence first discovered during the search of the apart-\nment pursuant to a valid warrant issued the day after the en-\ntry should have been suppressed as fruit of the illegal entry.\nOur disposition of both questions is carefully limited.\nThe Court of Appeals affirmed the District Court's holding\nthat there were no exigent circumstances to justify the war-\nrantless entry into petitioners' apartment. That issue is not\nbefore us, and we have no reason to question the courts' hold-\ning that that search was illegal. The ensuing interference\nwith petitioners' possessory interests in their apartment,\n*JUSTICE WHITE, JUSTICE POWELL, and JUSTICE REHNQUIST join all\nbut Part IV of this opinion.\n82-5298-OPINION\n2\nSEGURA v. UNITED STATES\nhowever, is another matter. On this first question, we con-\nclude that, assuming that there was a seizure of all the con-\ntents of the petitioners' apartment when agents secured the\npremises from within, that seizure did not violate the Fourth\nAmendment. Specifically, we hold that where officers, hav-\ning probable cause, enter premises, and with probable cause,\narrest the occupants who have legitimate possessory inter-\nests in its contents and take them into custody and, for no\nmore than the period here involved, secure the premises\nfrom within to preserve the status quo while others, in good\nfaith, are in the process of obtaining a warrant, they do not\nviolate the Fourth Amendment's proscription against unrea-\nsonable seizures.¹ The illegality of the initial entry, as we\nwill show, has no bearing on the second question.\nThe resolution of this second question requires that we deter-\nmine whether the initial entry tainted the discovery of the\nlienged. On this issue. We hold that evidence now challenged. On this issue, we hold that the ev-\nduring the subsequent theidence discovered during the subsequent search of the apart-\nday pursuant to the valid search \"ment the following day pursuant to the valid search warrant\ninformation known to the officers issued wholly on information known to the officers before the\nentry into the apartment need not have been suppressed as\n\"fruit\" of the illegal entry because the warrant and the in-\nformation on which it was based were unrelated to the entry\nand therefore constituted an independent source for the evi-\ndence under Silverthorne Lumber Co. V. United States, 251\nU. S. 385 (1920).\nII\nIn January 1981, the New York Drug Enforcement Task\nForce received information indicating that petitioners\nAndres Segura and Luz Marina Colon probably were traffick-\ning in cocaine from their New York apartment. Acting on\nthis information, Task Force agents maintained continuing\nsurveillance over petitioners until their arrest on February\n'See Griswold, Criminal Procedure, 1969-Is It A Means Or An End?,\n29 Md. L. Rev. 307, 317 (1969); see generally 2 W. LaFave, Search and\nSeizure § 6.5 (1978).\n82-5298-OPINION\nSEGURA v. UNITED STATES\n3\n12, 1981. On February 9, agents observed a meeting be-\ntween Segura and Enrique Rivudalla-Vidal, during which, as\nit later developed, the two discussed the possible sale of co-\ncaine by Segura to Rivudalla-Vidal. Three days later, Feb-\nruary 12, Segura telephoned Rivudalla-Vidal and agreed to\nprovide him with cocaine. The two agreed that the delivery\nwould be made at 5 p. m. that day at a designated fast-food\nrestaurant in Queens, N. Y. Rivudalla-Vidal and one Es-\nther Parra, arrived at the restaurant at 5 p. m., as agreed.\nWhile Segura and Rivudalla-Vidal visited inside the restau-\nrant, agents observed Luz Marina Colon deliver a bulky\npackage to Parra, who had remained in Rivudalla-Vidal's car\nin the restaurant parking lot. A short time after the deliv-\nery of the package, Rivudalla-Vidal and Parra left the restau-\nrant and proceeded to their apartment. Task Force agents\nfollowed. The agents stopped the couple as they were about\nVIGUES\napartment.\nParra\nwas into enter Rivudalla-Vidal's apartment. Parra was found to\nth Rivudalla-Vidal and Parra were possess cocaine; both Rivudalla-Vidal and Parra were imme-\ndiately arrested.\nVidal and Parra were advised of their After Rivudalla-Vidal and Parra were advised of their con-\nRivudalla-Vidal agreed in conneraistitutional rights, Rivudalla-Vidal agreed to cooperate with\nthe agents. He admitted that he had purchased the cocaine\nfrom Segura and he confirmed that Colon had made the deliv-\nery at the fast-food restaurant earlier that day, as the agents\nhad observed. Rivudalla-Vidal informed the agents that\nSegura was to call him at approximately 10 o'clock that eve-\nning to learn if Rivudalla-Vidal had sold the cocaine, in which\ncase Segura was to deliver additional cocaine.\nBetween 6:30 and 7 p. m., the same day, Task Force\nagents sought and received authorization from an Assistant\nUnited States Attorney to arrest Segura and Colon. The\nagents were advised by the Assistant United States Attor-\nney that because of the lateness of the hour, a search warrant\nfor petitioners' apartment probably could not be obtained\nuntil the following day, but that the agents should proceed to\nsecure the premises to prevent the destruction of evidence.\n82-5298-OPINION\n4\nSEGURA v. UNITED STATES\nAt about 7:30 p. m., the agents arrived at petitioners'\napartment and established external surveillance. At 11:15\np. m., Segura, alone, entered the lobby of the apartment\nbuilding where he was immediately arrested by agents. He\nfirst claimed he did not reside in the building. The agents\ntook him to his third floor apartment, and when they knocked\non the apartment door, a woman later identified as Luz Colon\nappeared; the agents then entered with Segura, without re-\nquesting or receiving permission. There were three persons\nin the living room of the apartment in addition to Colon.\nThose present were informed by the agents that Segura was\nunder arrest and that a search warrant for the apartment\nwas being obtained.\nFollowing this brief exchange in the living room, the\nagents conducted a limited security check of the apartment to\nensure that no one else was there who might pose a threat to\nin their safety or destroy evidence. In the process, the agents\nroom in plain view. a trinle-heamobserved, in a bedroom in plain view, a triple-beam scale,\nnumerous small cellophane bags jars of lactose, and numerous small cellophane bags, all ac-\ntrafficking None of these couterments of drug trafficking. None of these items was\nAtter this limited security disturbed by the agents. After this limited security check,\nLuz Colon was arrested. In the search incident to her ar-\nrest, agents found in her purse a loaded revolver and more\nthan $2,000 in cash. Colon, Segura, and the other occupants\nof the apartment were taken to Drug Enforcement Adminis-\ntration headquarters.\nTwo Task Force agents remained in petitioners' apartment\nawaiting the warrant. Because of what is characterized as\n\"administrative delay\" the warrant application was not pre-\nsented to the magistrate until 5 p. m. the next day. The\nwarrant was issued and the search was performed at approxi-\nmately 6 p. m., some 19 hours after the agents' initial entry\ninto the apartment. In the search pursuant to the warrant,\nagents discovered almost three pounds of cocaine, 18 rounds\nof .38-caliber ammunition fitting the revolver agents had\nfound in Luz Colon's possession at the time of her arrest,\n82-5298-OPINION\nSEGURA v. UNITED STATES\n5\nmore than $50,000 cash, and records of narcotics transac-\ntions. Agents seized these items, together with those ob-\nserved during the security check the previous night.\nBefore trial in the United States District Court in the\nEastern District of New York, petitioners moved to suppress\nall of the evidence seized from the apartment-the items dis-\ncovered in plain view during the initial security check and\nthose not in plain view first discovered during the subsequent\nwarrant search.2 After a full evidentiary hearing, the Dis-\ntrict Court granted petitioners' motion. The court ruled\nthat there were no exigent circumstances justifying the ini-\ntial entry into the apartment. Accordingly, it held that the\nentry, the arrest of Colon and search incident to her arrest,\nand the effective seizure of the drug paraphernalia in plain\nview were illegal. The District Court ordered this evidence\nsuppressed as \"fruits\" of illegal searches.\nThe District Court held that the warrant later issued was\nrmation sufficient to estanush prsupported by information sufficient to establish probable\nread United States V Griffin 102cause; however, it read United States V. Griffin, 502 F. 2d\nnied. 419 U. S. 1050 (1974). as red 959 (GA6), cert. denied, 419 U. S. 1050 (1974), as requiring\nseized\nthe\nsuppression of the evidence seized under the valid warrant.³\nThe District Court reasoned that this evidence would not\nnecessarily have been discovered because, absent the illegal\n2 Rivudalla-Vidal and Parra were indicted with petitioners and were\ncharged with one count of possession with intent to distribute one-half kilo-\ngram of cocaine on one occasion and one kilogram on another occasion.\nBoth pled guilty to the charges. They moved in the District Court to sup-\npress the one-half kilogram of cocaine found on Parra's person at the time\nof their arrests on the ground that the Task Force agents had stopped\nthem in violation of Terry V. Ohio, 392 U. S. 1 (1968). The court denied\nthe motion. Rivudalla-Vidal and Parra absconded prior to sentencing by\nthe District Court.\n3In Griffin, absent exigent circumstances, police officers forcibly en-\ntered an apartment and discovered in plain view narcotics and related\nparaphernalia. The entry took place while other officers sought a search\nwarrant. The Court of Appeals for the Sixth Circuit affirmed the District\nCourt's grant of the defendant's suppression motion.\n82-5298-OPINION\n6\nSEGURA v. UNITED STATES\nentry and \"occupation\" of the apartment, Colon might have\narranged to have the drugs removed or destroyed, in which\nevent they would not have been in the apartment when the\nwarrant search was made. Under this analysis, the District\nCourt held that even the drugs seized under the valid war-\nrant were \"fruit of the poisonous tree.\"\nOn an appeal limited to the admissibility of the incriminat-\ning evidence, the Court of Appeals affirmed in part and re-\nversed in part. 663 F. 2d 411 (1981). It affirmed the Dis-\ntrict Court holding that the initial warrantless entry was not\njustified by exigent circumstances and that the evidence dis-\ncovered in plain view during the initial entry must be sup-\npressed. The Court of Appeals rejected the argument ad-\nvanced by the United States that the evidence in plain view\nshould not be excluded because it was not actually \"seized\"\nuntil after the search warrant was secured.\nRelying upon its holding in United States V. Agapito, 620\ncert denied, 449 U. S. 834 (1980F. 2de324 (CA2), cert. denied, 449 U.S. 834 (1980),5 the\nCourt and the Court of Annesis held that the Both the District Court and the Court of Appeals held that the initial\nwas not justified by exigent\nentry into the apartment was not justified by exigent circumstances, and\nissovered\nplain\nduring\nThe\nthus that the items discovered in plain view during the limited security\ncheck had to be suppressed to effect the purposes of the Fourth Amend-\nment. The United States, although it does not concede the correctness of\nthis holding, does not contest it in this Court. Because the government\nhas decided not to press its argument that exigent circumstances existed.\nwe need not and do not address this aspect of the Court of Appeals deci-\nsion. We are concerned only with whether the Court of Appeals properly\ndetermined that the Fourth Amendment did not require suppression of the\nevidence seized during execution of the valid warrant.\n5 In Agapito, DEA agents, following a two-day surveillance of the de-\nfendant's hotel room, arrested the suspected occupants of the room in the\nlobby of the hotel. After the arrests, the agents entered the hotel room\nand remained within, with the exception of periodic departures, for almost\n24 hours until a search warrant issued. During their stay in the room, the\nagents seized but did not open a suitcase found in the room. In the search\npursuant to the warrant, the agents found cocaine in the suitcase. Al-\nthough the Second Circuit held that the initial entry was illegal, it held that\nthe cocaine need not be suppressed because it was discovered in the search\nunder the valid warrant.\n82-5298-OPINION\nSEGURA v. UNITED STATES\n7\nCourt of Appeals reversed the District Court's holding re-\nquiring suppression of the evidence seized under the valid\nwarrant executed on the day following the initial entry. The\nCourt of Appeals described as \"prudentially unsound\" the\nDistrict Court's decision to suppress that evidence simply\nbecause it could have been destroyed had the agents not\nentered.\nPetitioners were convicted of conspiring to distribute co-\ncaine, in violation of 21 U. S. C. § 846, and of distributing and\npossessing with intent to distribute cocaine, in violation of 21\nU. S. C. § 841(a)(1). On the subsequent review of these con-\nvictions, the Second Circuit affirmed, rejecting claims by pe-\ntitioners that the search warrant was procured through ma-\nterial misrepresentations and that the evidence at trial was\ninsufficient as a matter of law to support their convictions.\nWe granted certiorari, 459 U. S. 1200 (1983), and we affirm.\nIII\nis important to focus on the narrow At the outset, it is important to focus on the narrow and\nbefore us. As we have noteprecise question now before us. As we have noted, the\nfreed with the District Court that Court of Appeals agreed with the District Court that the ini-\ntial warrantless entry, and the limited security search were\nnot justified by exigent circumstances and were therefore il-\nlegal. No review of that aspect of the case was sought by\nthe Government and no issue concerning items observed dur-\ning the initial entry is before the Court. The only issue here\nis whether drugs and the other items not observed during the\ninitial entry and first discovered by the agents the day after\nthe entry, under an admittedly valid search warrant, should\nhave been suppressed.\nThe suppression or exclusionary rule is a judicially pre-\nscribed remedial measure and as \"with any remedial device,\nthe application of the rule has been restricted to those areas\nwhere its remedial objectives are thought most efficaciously\nserved.\" United States V. Calandra, 414 U. S. 338, 348\n(1974). Under this Court's holdings, the exclusionary rule\n82-5298-OPINION\n8\nSEGURA v. UNITED STATES\nreaches not only primary evidence obtained as a direct result\nof an illegal search or seizure, Weeks V. United States, 232\nU. S. 383 (1914), but also evidence later discovered and found\nto be derivative of an illegality or \"fruit of the poisonous\ntree.\" Nardone V. United States, 308 U. S. 338, 341 (1939).\nIt \"extends as well to the indirect as the direct products\" of\nunconstitutional conduct. Wong Sun V. United States, 371\nU. S. 471, 484 (1963).\nEvidence obtained as a direct result of an unconstitutional\nsearch or seizure is plainly subject to exclusion. The ques-\ntion to be resolved when it is claimed that evidence subse-\nquently obtained is \"tainted\" or is \"fruit\" of a prior illegality\nis whether the challenged evidence was\n\"come at by exploitation of [the initial] illegality or in-\nstead by means sufficiently distinguishable to be purged\nof the primary taint.\" Id., at 488 (citation omitted; em-\nphasis added).\nIt has been well established for more than 60 years that ev-\nexcluded if the connection between idence is not to be excluded if the connection between the ille-\nand the discovery and scizure of gal police conduct and the discovery and seizure of the evi-\ndence is \"so attenuated as to dissipate the taint,\" Nardone V.\nUnited States, supra, at 341. It is not to be excluded, for\nexample, if police had an \"independent source\" for discovery\nof the evidence:\n\"The essence of a provision forbidding the acquisition of\nevidence in a certain way is that not merely evidence SO\nacquired shall not be used before the Court but that it\nshall not be used at all. Of course this does not mean\nthat the facts thus obtained become sacred and inaccessi-\nble. If knowledge of them is gained from an independ-\nent source they may be proved like any others.\" Silver-\nthorne Lumber Co. V. United States, 251 U.S., at 392\n(emphasis added).\nIn short, it is clear from our prior holdings that \"the exclu-\nsionary rule has no application [where] the Government\n82-5298-OPINION\nSEGURA v. UNITED STATES\n9\nlearned of the evidence 'from an independent source.\"\nWong Sun, supra, at 487 (quoting Silverthorne Lumber Co.,\nsupra, at 392); see also United States V. Crews, 445 U. S. 463\n(1980); United States V. Wade, 388 U. S. 218, 242 (1967); Cos-\ntello V. United States, 365 U. S. 265, 278-280 (1961).\nIV\nA\nPetitioners argue that all of the contents of the apart-\nment, seen and not seen, including the evidence now in ques-\ntion, were \"seized\" when the agents entered and remained on\nthe premises while the lawful occupants were away from the\napartment in police custody. The essence of this argument\nis that because the contents were then under the control of\nthe agents and no one would have been permitted to remove\nthe incriminating evidence from the premises or destroy it, a\n\"seizure\" took place. Plainly, this argument is advanced to\nme \"independent source\" exception the Silverthorne \"independent source\" exception. If\nne apartment were seized at the all the contents of the apartment were \"seized\" at the time of\nresumably the evidence now chalthe illegal entry, presumably the evidence now challenged\nble as primary evidence obtained would be suppressible as primary evidence obtained as a di-\nrect result of that entry.\nWe need not decide whether, when the agents entered the\napartment and secured the premises, they effected a seizure\nof the cocaine, the cash, the ammunition, and the narcotics\nrecords within the meaning of the Fourth Amendment. By\nits terms, the Fourth Amendment forbids only \"unreason-\nable\" searches and seizures. Assuming, arguendo, that the\nagents seized the entire apartment and its contents, as peti-\ntioners suggest, the seizure was not unreasonable under the\ntotality of the circumstances.\nDifferent interests are implicated by a seizure than by a\nsearch. United States V. Jacobsen, 466 U.S.\n,\n(1984); Texas V. Brown, 460 U.S.\n,\n(1983); id., at\n(STEVENS, J., concurring in judgment); United States V.\nChadwick, 433 U.S. 1, 13-14, n. 8 (1977); Chambers V.\n82-5298-OPINION\n10\nSEGURA v. UNITED STATES\nMaroney, 399 U. S. 42, 51-52 (1970). A seizure affects only\nthe person's possessory interests; a search affects a person's\nprivacy interests. United States V. Jacobsen, supra, at\n; United States V. Chadwick, supra, at 13-14, n. 8; see\ngenerally Texas V. Brown, supra (concurring opinion). Rec-\nognizing the generally less intrusive nature of a seizure,\nChadwick, supra, at 13-14, n. 8; Chambers V. Maroney,\nsupra, at 51, the Court has frequently approved warrantless\nseizures of property, on the basis of probable cause, for the\ntime necessary to secure a warrant, where a warrantless\nsearch was either held to be or likely would have been held\nimpermissible. Chambers V. Maroney, supra; United States\nV. Chadwick, supra; Arkansas V. Sanders, 442 U. S. 753\n(1979).6\nWe focused on the issue notably in Chambers, holding that\nit was reasonable to seize and impound an automobile, on the\nthe\nCourt\nIn two instances, the Court has allowed temporary seizures and lim-\nunon\ntess\nprohehie\nited détentions of property based upon less than probable cause. In\nLecuwen, 397 U. S. 249 (1970). the Court United States V. Van Leeuwen, 397 U.S. 249 (1970), the Court refused to\nand detention-an the basis of only reasonab invalidate the seizure and detention-on the basis of only reasonable suspi-\ndelivered is a United States Post Office for cion-of two packages delivered to a United States Post Office for mailing.\nOne of the packages was detained on mere suspicion for only 1½ hours; by\nthe end of that period enough information had been obtained to establish\nprobable cause that the packages contained stolen coins. But the other\npackage was detained for 29 hours before a search warrant was finally\nserved. Both seizures were held reasonable. In fact, the Court sug-\ngested that both seizures and detentions for these \"limited times\" were\n\"prudent\" under the circumstances.\nOnly last Term, in United States V. Place, 462 U. S. - (1983), we con-\nsidered the validity of a brief seizure and detention of a traveler's luggage,\non the basis of a reasonable suspicion that the luggage contained contra-\nband; the purpose of the seizure and brief detention were to investigate\nfurther the causes for the suspicion. Although we held that the 90-minute\ndetention of the luggage in the airport was, under the circumstances, un-\nreasonable, we held that the rationale of Terry V. Ohio, 392 U. S. 1 (1968),\napplies to permit an officer, on the basis of reasonable suspicion that a trav-\neler is carrying luggage containing contraband, to seize and detain the lug-\ngage briefly to \"investigate the circumstances that aroused his suspicion.\"\n462 U. S., at\n82-5298-OPINION\nSEGURA v. UNITED STATES\n11\nbasis of probable cause, for \"whatever period is necessary to\nobtain a warrant for the search.\" 399 U. S., at 51 (footnote\nomitted). We acknowledged in Chambers that following the\ncar until a warrant could be obtained was an alternative to\nimpoundment, albeit an impractical one. But we allowed the\nseizure nonetheless because otherwise the occupants of the\ncar could have removed the \"instruments or fruits of crime\"\nbefore the search. Id., at 51, n. 9. The Court allowed the\nwarrantless seizure to protect the evidence from destruction\neven though there was no immediate fear that the evidence\nwas in the process of being destroyed or otherwise lost. The\nChambers Court declared:\n\"For constitutional purposes, we see no difference be-\ntween on the one hand seizing and holding the car before\npresenting the probable cause issue to a magistrate and\non the other hand carrying out an immediate search\nwithout a warrant. Given probable cause to search,\nreasonable under ine I ourin Ameneither course is reasonable under the Fourth Amend-\n32\nment.\" Id., at 52 (emphasis added)\nheld that the warrantless search ofInhChadwick, we held that the warrantless search of the\nad been scined and was in a socure footlocker after it had been seized and was in a secure area of\nthe Federal Building violated the Fourth Amendment's pro-\nscription against unreasonable searches, but neither the re-\nspondents nor the Court questioned the validity of the initial\nwarrantless seizure of the footlocker on the basis of probable\ncause. The seizure of Chadwick's footlocker clearly inter-\nfered with his use and possession of the footlocker-his pos-\nsessory interest-but we held that this did not \"diminish [his]\nlegitimate expectation that the footlocker's contents would\nremain private.\" 433 U. S., at 13-14, n. 8 (emphasis added).\nAnd again, in Arkansas V. Sanders, supra, we held that ab-\nsent exigent circumstances a warrant was required to search\nluggage seized from an automobile which was already in the\npossession and control of police at the time of the search.\nHowever, we expressly noted that the police acted not only\n\"properly,\" but \"commendably\" in seizing the suitcase with-\n82-5298-OPINION\n12\nSEGURA v. UNITED STATES\nout a warrant on the basis of probable cause to believe that it\ncontained drugs. 442 U. S., at 761. The taxi into which the\nsuitcase had been placed was about to drive away. How-\never, just as there was no immediate threat of loss or de-\nstruction of evidence in Chambers-since officers could have\nfollowed the car until a warrant issued-so too in Sanders of-\nficers could have followed the taxicab. Indeed, there argu-\nably was even less fear of immediate loss of the evidence in\nSanders because the suitcase at issue had been placed in the\nvehicle's trunk, thus rendering immediate access unlikely be-\nfore police could act.\nUnderlying these decisions is a belief that society's interest\nin the discovery and protection of incriminating evidence\nfrom removal or destruction can supersede, at least for a lim-\nited period, a person's possessory interest in property, pro-\nvided that there is probable cause to believe that that prop-\nerty is associated with criminal activity. See United States\n(1950).\nV. Place, 462 U.S. - (1983).\nhad\noccasion\nto\nconsider\nwhether.\nThe Court has not had occasion to consider whether, when\nable cause to believe that evidence offficers have probable cause to believe that evidence of crimi-\nthe premises the temporary securinal cactivity is on the premises, the temporary securing of a\ndwelling to prevent the removal or destruction of evidence\nviolates the Fourth Amendment. However, in two cases we\nhave suggested that securing of premises under these cir-\ncumstances does not violate the Fourth Amendment, at least\nwhen undertaken to preserve the status quo while a search\nwarrant is being sought. In Mincey V. Arizona, 437 U. S.\n385 (1978), we noted with approval that, to preserve evi-\ndence, a police guard had been stationed at the entrance to an\napartment in which a homicide had been committed, even\nthough \"[t]here was no indication that evidence would be\nlost, destroyed, or removed during the time required to ob-\ntain a search warrant.\" Id., at 394. Similarly, in Rawlings\nV. Kentucky, 448 U. S. 98 (1980), although officers secured,\nfrom within, the home of a person for whom they had an ar-\nrest warrant, and detained all occupants while other officers\n82-5298-OPINION\nSEGURA v. UNITED STATES\n13\nwere obtaining a search warrant, the Court did not question\nthe admissibility of evidence discovered pursuant to the war-\nrant later issued.⁷\nWe see no reason, as Mincey and Rawlings would suggest,\nwhy the same principle applied in Chambers, Chadwick, and\nSanders, should not apply where a dwelling is involved. The\nsanctity of the home is not to be disputed. But the home is\nsacred in Fourth Amendment terms not primarily because of\nthe occupants' possessory interests in the premises, but be-\ncause of their privacy interests in the activities that take\nplace within. \"[T]he Fourth Amendment protects people,\nnot places.\" Katz V. United States, 389 U. S. 347, 351\n(1967); see also Payton V. New York, 445 U. S. 573, 615\n(1980) (WHITE, J., dissenting).\nAs we have noted, however, a seizure affects only posses-\nsory interests, not privacy interests. Therefore, the height-\ndistinguished constitutional scholar raised the question whether a\nght not be appropriate to preserve the seizure of premises might not be appropriate to preserve the status quo\nvidence while police officers in good laitland protect valuable evidence while police officers in good faith seek a\nwarrant.\npractical problem. Does the Donce \"Here there is a very real practical problem. Does the police officer\nthe\nhave any power to maintain the status quo while he, or a colleague of his, is\ntaking the time necessary to draw up a sufficient affidavit to support an\napplication for a search warrant, and then finding a magistrate, submitting\nthe application to him, obtaining the search warrant if it is issued, and then\nbringing it to the place where the arrest was made. It seems inevitable\nthat a minimum of several hours will be required for this process, at the\nvery best. Unless there is some kind of a power to prevent removal of\nmaterial from the premises, or destruction of material during this time,\nthe search warrant will almost inevitably be fruitless.\" Griswold, Crimi-\nnal Procedure, 1969-Is It A Means Or An End?, 29 Md. L. Rev. 307, 317\n(1969) (emphasis added).\nJustice Black posed essentially the same question in his dissent in Vale V.\nLouisiana, 399 U. S. 30, 36 (1970). After pointing out that Vale's arrest\njust outside his residence was \"plainly visible to anyone within the house,\nand the police had every reason to believe that someone in the house was\nlikely to destroy the contraband if the search were postponed,\" he noted:\n\"This case raises most graphically the question how does a policeman\nprotect evidence necessary to the State if he must leave the premises\n82-5298-OPINION\n14\nSEGURA v. UNITED-STATES\nened protection we accord privacy interests is simply not im-\nplicated where a seizure of premises, not a search, is at issue.\nWe hold, therefore, that securing a dwelling, on the basis of\nprobable cause, to prevent the destruction or removal of evi-\ndence while a search warrant is being sought is not itself an\nunreasonable seizure of either the dwelling or its contents.\nWe reaffirm at the same time, however, that, absent exigent\ncircumstances, a warrantless search-such as that invali-\ndated in Vale V. Louisiana, supra, at 33-34-is illegal.\nHere, the agents had abundant probable cause in advance\nof their entry to believe that there was a criminal drug opera-\ntion being carried on in petitioners' apartment; indeed peti-\ntioners do not dispute the probable cause determination.\nThe agents had maintained surveillance over petitioners for\nweeks, and had observed petitioners leave the apartment to\nmake sales of cocaine. Wholly apart from observations made\ned\nsurvemance.\nMIVUGANE\n1021\naduring that extended surveillance, Rivudalla-Vidal had told\nrest on February 13. that petitioneagents after his arrest on February 13, that petitioners had\ncocaine earlier that day that he rsupplied him with cocaine earlier that day, that he had not\nne cocaine offered hv Segura ampurchased all of the cocaine offered by Segura, and that\ndi more cocaine in the anartment\nSegura probably had more cocaine in the apartment. On the\nbasis of this information, a magistrate duly issued a search\nwarrant, the validity of which was upheld by both the Dis-\ntrict Court and the Court of Appeals, and which is not before\nus now.\nIn this case, the agents entered and secured the apartment\nfrom within. Arguably, the wiser course would have been to\ndepart immediately and secure the premises from the outside\nby a \"stakeout\" once the security check revealed that no one\nother than those taken into custody were in the apartment.\nBut the method actually employed does not require a differ-\nto get a warrant, allowing the evidence he seeks to be destroyed. The\nCourt's answer to that question makes unnecessarily difficult the convic-\ntion of those who prey upon society.\" Id., at 41.\n82-5298-OPINION\nSEGURA v. UNITED STATES\n15\nent result under the Fourth Amendment, insofar as the sei-\nzure is concerned. As the Court of Appeals held, absent exi-\ngent circumstances, the entry may have constituted an illegal\nsearch, or interference with petitioners' privacy interests,\nrequiring suppression of all evidence observed during the\nentry. Securing of the premises from within, however, was\nno more an interference with the petitioners' possessory in-\nterests in the contents of the apartment than a perimeter\n\"stakeout.\" In other words, the initial entry-legal or not-\ndoes not affect the reasonableness of the seizure. Under\neither method-entry and securing from within or a perime-\nter stakeout-agents control the apartment pending arrival\nof the warrant; both an internal securing and a perimeter\nstakeout interfere to the same extent with the possessory in-\nterests of the owners.\nPetitioners argue that we heighten the possibility of illegal\nthat\nthe\nillegal\nand\nentries by a holding that the illegal entry and securing of the\ninside\ndu\nnot\nthemselves\nrender\npremises from the inside do not themselves render the sei-\nreasonable\nthan\nhad\nthe\nagents\nstaked zure any more unreasonable than had the agents staked out\nthe\nourside\nWe\ndisagree.\nIn\nthe apartment from the outside. We disagree. In the first\nplace, an entry in the absence of exigent circumstances is ille-\ngal. We are unwilling to believe that officers will routinely\nand purposely violate the law as a matter of course. Second,\nas a practical matter, officers who have probable cause and\nwho are in the process of obtaining a warrant have no reason\nto enter the premises before the warrant issues, absent exi-\ngent circumstances which, of course, would justify the entry.\nUnited States V. Santana, 427 U.S. 38 (1976); Johnson V.\nUnited States, 333 U.S. 10 (1948). Third, officers who\nenter illegally will recognize that whatever evidence they dis-\ncover as a direct result of the entry may be suppressed, as it\nwas by the Court of Appeals in this case. Finally, if officers\nenter without exigent circumstances to justify the entry,\nthey expose themselves to potential civil liability under 42\n82-5298-OPINION\n16\nSEGURA v. UNITED STATES\nU. S. C. § 1983. Bivens V. Six Unknown Federal Narcotics\nAgents, 403 U. S. 388 (1971).\nOf course, a seizure reasonable at its inception because\nbased upon probable cause may become unreasonable as a re-\nsult of its duration or for other reasons. Cf. United States V.\nPlace, supra. Here, because of the delay in securing the\nwarrant, the occupation of the apartment continued through-\nout the night and into the next day. Such delay in securing a\nwarrant in a large metropolitan center unfortunately is not\nuncommon; this is not, in itself, evidence of bad faith. And\nthere is no suggestion that the officers, in bad faith, pur-\nposely delayed obtaining the warrant. The asserted ex-\nplanation is that the officers focused first on the task of pro-\ncessing those whom they had arrested before turning to the\ntask of securing the warrant. It is not unreasonable for offi-\ncers to believe that the former should take priority, given,\nas was the case here, that the proprietors of the apartment\ndy of the oncers throughout the pewere in the custody of the officers throughout the period in\nquestion.\nlence that the agents in any way exploThere is no evidence that the agents in any way exploited\nthe\ntheir presence in the apartment; they simply awaited issu-\nance of the warrant. Moreover, more than half of the 19-\nhour delay was between 10 p. m. and 10 a. m. the following\nday, when it is reasonable to assume that judicial officers are\nnot as readily available for consideration of warrant requests.\nFinally, and most important, we observed in United States V.\nPlace, supra, at , that\n\"[t]he intrusion on possessory interests occasioned by a\nseizure\ncan vary both in its nature and extent. The\nseizure may be made after the owner has relinquished\ncontrol of the property to a third party or\nfrom the\nimmediate custody and control of the owner.\"\nHere, of course, Segura and Colon, whose possessory inter-\nests were interfered with by the occupation, were under ar-\n82-5298-OPINION\nSEGURA v. UNITED STATES\n17\nrest and in the custody of the police throughout the entire\nperiod the agents occupied the apartment. The actual inter-\nference with their possessory interests in the apartment and\nits contents was, thus, virtually nonexistent. Cf. United\nStates V. Van Leeuwen, 397 U. S. 249 (1970). We are not\nprepared to say under these limited circumstances that the\nseizure was unreasonable under the Fourth Amendment.8\nV\nPetitioners also argue that even if the evidence was not\nsubject to suppression as primary evidence \"seized\" by virtue\nof the initial illegal entry and occupation of the premises, it\nshould have been excluded as \"fruit\" derived from that illegal\nentry. Whether the initial entry was illegal or not is irrele-\nvant to the admissibility of the challenged evidence because\nthere was an independent source for the warrant under\nwhich that evidence was seized. Exclusion of evidence as\nof the poisonous tree is not derivative or \"fruit of the poisonous tree\" is not warranted\nindependent source\nhere because of that independent source.\nmation on which the warrant was None of the information on which the warrant was secured\nor related in any way to the mitiawas derived from or related in any way to the initial entry\ninto petitioners' apartment; the information came from\nsources wholly unconnected with the entry and was known to\nthe agents well before the initial entry. No information ob-\ntained during the initial entry or occupation of the apartment\nwas needed or used by the agents to secure the warrant. It\nis therefore beyond dispute that the information possessed by\nthe agents before they entered the apartment constituted an\nindependent source for the discovery and seizure of the evi-\na\nOur decision in United States V. Place, 462 U.S. (1983), is not\ninconsistent with this conclusion. There, we found unreasonable a 90-\nminute detention of a traveler's luggage. But the detention was based\nonly on a suspicion that the luggage contained contraband, not on probable\ncause. After probable cause was established, authorities held the un-\nopened luggage for almost three days before a warrant was obtained. It\nwas not suggested that this delay presented an independent basis for sup-\npression of the evidence eventually discovered.\n82-5298-OPINION\n18\nSEGURA v. UNITED STATES\ndence now challenged. This evidence was discovered the\nday following the entry, during the search conducted under a\nvalid warrant; it was the product of that search, wholly unre-\nlated to the prior entry. The valid warrant search was a\n\"means sufficiently distinguishable\" to purge the evidence of\nany \"taint\" arising from the entry. Wong Sun, 371 U. S., at\n488.9 Had police never entered the apartment, but instead\nconducted a perimeter stakeout to prevent anyone from en-\ntering the apartment and destroying evidence, the contra-\nband now challenged would have been discovered and seized\nprecisely as it was here. The legality of the initial entry is,\nthus, wholly irrelevant under Wong Sun, supra, and\nSilverthorne, supra.¹⁰\nOur conclusion that the challenged evidence was admissible\nis fully supported by our prior cases going back more than a\nhalf century. The Court has never held that evidence is\n\"fruit of the poisonous tree\" simply because \"it would not\nbut for the illegal actions of the have come to light but for the illegal actions of the police.\"\nupra. at 487-488: Rawimos V. See Wong Sun, supra, at 487-488; Rawlings V. Kentucky,\n0): Brown V. Illinois 422 U. S. 594850U S. 98 (1980); Brown V. Illinois, 422 U. S. 590, 599\nald souarely conflict with Silverthor (1975). That would squarely conflict with Silverthorne and\nour other cases allowing admission of evidence, notwith-\n'Our holding in this respect is consistent with the vast majority of fed-\neral courts of appeals which have held that evidence obtained pursuant to a\nvalid warrant search need not be excluded because of a prior illegal entry.\nSee, e. g., United States V. Perez, 700 F. 2d 1232 (CA8 1983); United States\nV. Kinney, 638 F. 2d 941 (CA6), cert. denied, 452 U. S. 918 (1981); United\nStates V. Fitzharris, 633 F. 2d 416 (CA5 1980), cert. denied. 451 U. S. 988\n(1981); United States V. Agapito, 620 F. 2d 324 (CA2 1980); United States\nV. Bosby, 675 F. 2d 1174 (CA11 1982) (dictum). The only federal court of\nappeals to hold otherwise is the Ninth Circuit. See United States V. Lo-\nmas, 706 F. 2d 886 (1983); United States V. Allard, 634 F. 2d 1182 (1980).\n10 It is important to note that the dissent stresses the legal status of the\nagents' initial entry and occupation of the apartment; however, this case\ninvolves only evidence seized in the search made subsequently under a\nvalid warrant. Implicit in the dissent is that the agents' presence in the\napartment denied petitioners some legal \"right\" to arrange to have the in-\ncriminating evidence concealed or destroyed.\n82-5298-OPINION\nSEGURA v. UNITED STATES\n19\nstanding a prior illegality, when the link between the illegal-\nity and that evidence was sufficiently attenuated to dissipate\nthe taint. By the same token, our cases make clear that evi-\ndence will not be excluded as \"fruit\" unless the illegality is at\nleast the \"but for\" cause of the discovery of the evidence.\nSuppression is not justified unless \"the challenged evidence is\nin some sense the product of illegal governmental activity.\"\nUnited States V. Crews, 445 U. S., at 471. The illegal entry\ninto petitioners' apartment did not contribute in any way to\ndiscovery of the evidence seized under the warrant; it is\nclear, therefore, that not even the threshold \"but for\" re-\nquirement was met in this case.\nThe dissent contends that the initial entry and securing of\nthe premises are the \"but for\" causes of the discovery of the\nevidence in that, had the agents not entered the apartment,\nbut instead secured the premises from the outside, Colon or\nher friends if alerted, could have removed or destroyed\nre the warrant issued. While the the evidence before the warrant issued. While the dissent\nsoning. petitioners 00 not press membraces this \"reasoning,\" petitioners do not press this argu-\nof Appeals rejected this argument ment. The Court of Appeals rejected this argument as \"pru-\nand because it rested on \"wholl dentially unsound\" and because it rested on \"wholly spec-\nulative assumptions.\" Among other things, the Court of\nAppeals suggested that, had the agents waited to enter the\napartment until the warrant issued, they might not have de-\ncided to take Segura to the apartment and thereby alert Co-\nlon. Or, once alerted by Segura's failure to appear, Colon\nmight have attempted to remove the evidence, rather than\ndestroy it, in which event the agents could have intercepted\nher and the evidence.\nWe agree fully with the Court of Appeals that the District\nCourt's suggestion that Colon and her cohorts would have re-\nmoved or destroyed the evidence was pure speculation. Even\nmore important, however, we decline to extend the exclu-\nsionary rule, which already exacts an enormous price from\nsociety and our system of justice, to further \"protect\" crimi-\nnal activity, as the dissent would have us do.\n82-5298-OPINION\n20\nSEGURA v. UNITED STATES\nIt may be that, if the agents had not entered the apart-\nment, petitioners might have arranged for the removal or de-\nstruction of the evidence, and that in this sense the agents'\nactions could be considered the \"but for\" cause for discovery\nof the evidence. But at this juncture, we are reminded of\nJustice Jackson's warning that \"[s]ophisticated argument\nmay prove a causal connection between information obtained\nthrough [illegal conduct] and the Government's proof,\" and\nhis admonition that the courts should consider whether \"[a]s\na matter of good sense\nsuch connection may have become\nso attenuated as to dissipate the taint.\" Nardone, 308\nU. S., at 341. The essence of the dissent is that there is\nsome \"constitutional right\" to destroy evidence. This con-\ncept defies both logic and common sense.\nVI\nWe agree with the Court of Appeals that the cocaine, cash\nrecords and ammunition were properly admitted into evi-\nthe indoment is affirmed.\ndence. Accordingly, the judgment is affirmed.\nIf is SO ordered.\nIt is so ordered.\nSUPREME COURT OF THE UNITED STATES\nNo. 82-5298\nANDRES SEGURA AND LUZ MARINA COLON,\nPETITIONERS v. UNITED STATES\nON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE SECOND CIRCUIT\nidealy J. 12041\n[July 5, 1984]\nIS. with whom JUSTICE BRENNAN. JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUS-\nhd JUSTICE BLACKMUN ioin dissenTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.\nof the Fourth Amendment issues Correct analysis of the Fourth Amendment issues raised\nby this case requires, first, a precise identification of the two\nconstitutional violations that occurred, and second, an ex-\nplanation of why a remedy for both is appropriate. While I\ndo not believe that the current record justifies suppression of\nthe challenged evidence, neither does it justify affirmance of\npetitioners' convictions. We must consider the substantial\ncontention, supported by the findings of the District Court\nand left unaddressed by the opinion of this Court, that the\nauthorities' access to the evidence introduced against peti-\ntioners at trial was made possible only through exploitation\nof both constitutional violations. Because I believe that con-\ntention must be addressed before petitioners' convictions are\nfinally affirmed, I would remand for further proceedings.\nThe Court's disposition, I fear, will provide government\nagents with an affirmative incentive to engage in unconstitu-\ntional violations of the privacy of the home. The Court's dis-\nposition is, therefore, inconsistent with a primary purpose of\nthe Fourth Amendment's exclusionary rule-to ensure that\nall private citizens-not just these petitioners-have some\nmeaningful protection against future violations of their\nrights.\n82-5298-DISSENT\n2\nSEGURA v. UNITED STATES\nI\nThe events that occurred on February 12 and 13, 1981,\nwere the culmination of an investigation of petitioners that\nhad been underway for over two weeks. On the evening of\nFebruary 12, agents of the New York Drug Enforcement\nTask Force arrested Rivadulla and Parra, who told them that\nSegura probably had cocaine in his apartment. At that\npoint, the agents concluded that they had probable cause to\nsearch petitioners' apartment, and contacted the United\nStates Attorney's office. An Assistant United States Attor-\nney informed the agents that at that hour, 6:30 p. m., it was\ntoo late to obtain a search warrant, and advised them instead\nto go to the apartment, arrest Segura, and \"secure the\npremises\" pending the issuance of a warrant.¹ The agents\narrived at the apartment about an hour later and positioned\nescape. where they could obser themselves on a fire escape, where they could observe any-\niving\nthe apartment. They also one entering or leaving the apartment. They also put their\nbut heard nothing.² After three hears to the door, but heard nothing.2 After three hours of\nTHE CHIEF JUSTICE seems to think that this problem was caused by\nthe unavailability of a magistrate to issue a warrant at this hour, ante, at\n16. However, as the Government candidly admits, the fault here lies not\nwith the judiciary, but with the United States Attorney's office for failing\nto exercise due diligence in attempting to procure a warrant. One of the\nagents testified that the Assistant United States Attorney told him only\nthat \"perhaps a Magistrate could not be found at that particular time in the\nevening.\" Tr. 154 (emphasis supplied). The Assistant United States At-\ntorney testified that he did not even attempt to locate a magistrate or ob-\ntain a search warrant. Tr. 441-442. As the Government concedes in its\nbrief:\n\"It is not clear why a greater effort was not made to obtain a search war-\nrant when the officers first sought one, and we do not condone the failure\nto do so\nWe note that, subsequent to the events in this case, the\nUnited States Attorney circulated an internal memorandum reemphasizing\nthat search warrants should be sought when at all possible, regardless of\nthe hour, in order to avoid the need for warrantless entries to secure\npremises.\" Brief for the United States 40, n. 23.\n2 Based on the information they had been given prior to their arrival at\nthe apartment. the agents believed. correctly as it turned out, that Segura\nwas not in the apartment. Tr. 394.\n82-5298-DISSENT\nSEGURA v. UNITED STATES\n3\nwaiting, the agents left their perch and went outside the\nbuilding, where they continued waiting for Segura to show\nup. The District Court described what followed:\n\"Around 11:15 p. m. Segura appeared, and as he be-\ngan to enter the locked door at the lobby, he was appre-\nhended, and placed in handcuffs under arrest. The\nagents, led by Shea, informed him that they wanted to\ngo upstairs to 3D, or in that apartment. Forcibly bring-\ning him to the third floor, the agents began down the\nhallway, at which point Segura again resisted. Shea\nagain forced him down the hallway to the door of 3D, an\napartment which is located in the rear of the building,\nwith no view of the front of the building where the arrest\ntook place. Shea knocked on the door of 3D, with Se-\ngura standing, handcuffed, in front of him. Luz Colon,\nhea at the time as such, opened the dounknown to Shea at the time as such, opened the door.\nwithout\nDetective Shea, without more, walked into the apart-\nдта in custody. He was then followed ment with Segura in custody. He was then followed by\nents, and five minutes later, by Palumitwo other agents, and five minutes later, by Palumbo.\nhur\nany\nother\nagent\nNeither Shea nor any other agent had an arrest warrant,\nor a search warrant. Nor did any of the officers ask for\nor receive consent to enter apartment 3D.\" App. 10-11.\nThe agents arrested Colon and three other persons found\nin the apartment. Colon was unknown to the agents at the\ntime.³ The agents made a cursory search of the apartment\nand saw various items of narcotics paraphanalia in plain\nview. The agents left that evidence-the \"pre-warrant evi-\ndence\"-in the apartment, but they took the arrestees to\nheadquarters.\nAt least two of the agents spent the night in the apartment\nand remained in it thoughout the following day while their\ncolleagues booked the arrestees and presumably persevered\nin their efforts to obtain a warrant to search the apartment.\n³Tr. 366, 392.\n+ However, none of this evidence could be seen until after the agents\nhad entered the apartment. Tr. 405.\n82-5298-DISSENT\n4\nSEGURA v. UNITED STATES\nFinally, at 6 p. m. on February 13, the remaining agents\nwere informed that a search warrant had just been issued,\nand at that point they conducted a thorough search. The\nDistrict Court concluded: \"There was thus a lapse of some\n18-20 hours from the entry into the apartment to the execu-\ntion of the search warrant, during which time the officers re-\nmained inside the apartment and in complete control of it.\"\nApp. 11. Upon searching the apartment the agents found\none kilo of cocaine, over $50,000, several rounds of .38 caliber\nammunition, and records of narcotics transactions.\nII\nThe Court frames the appropriate inquiry in this case as\nwhether the evidence obtained when the search warrant was\nexecuted was a \"fruit\" of illegal conduct. Ante, at 7-8. As\nat inquiry. the illegal conduct supredicate to that inquiry, the illegal conduct must, of\ncourse, be identified.\nurt found that no exigent. circumst The District Court found that no exigent circumstances\ninitial warrantiess justified the agents' initial warrantless entry into petitioners'\napartment. App. 11-13. The Court of Appeals affirmed\nthis finding, and the Government did not seek review of it by\nthis Court. Thus, it is uncontested that the warrantless en-\ntry of petitioners' apartment was unconstitutional. It is\nequally clear that the subsequent 18-20 hour occupation of\nthe apartment was independently unconstitutional for two\nseparate reasons.\nFirst, the occupation was an unreasonable \"search\" within\nthe meaning of the Fourth Amendment A \"search\" for pur-\nposes of the Fourth Amendment occurs when a reasonable\n⁵In Vale V. Louisiana, 399 U.S. 30 (1970), we held that absent a de-\nmonstrable threat of imminent destruction of evidence, the authorities may\nnot enter a residence in order to preserve that evidence without a warrant.\nSee also United States V. Jeffers, 342 U. S. 48, 51-52 (1951); McDonald V.\nUnited States, 335 U. S. 451, 454-455 (1948); Johnson V. United States,\n333 U. S. 10. 13-15 (1948). The illegality is even more plain in this case\nbecause the entry was effected by force late at night.\n82-5298-DISSENT\nSEGURA v. UNITED STATES\n5\nexpectation of privacy is infringed.5 Nowhere are expecta-\ntions of privacy greater than in the home. As the Court has\nrepeatedly noted, \"physical entry of the home is the chief evil\nagainst which the wording of the Fourth Amendment is di-\nrected.\" United States V. United States District Court, 407\nU. S. 297, 313 (1972).1 Of course, the invasion of privacy oc-\ncasioned by a physical entry does not cease after the initial\nentry. In Mincey V. Arizona, 437 U. S. 385 (1978), we held\nthat although the pólice lawfully entered Mincey's home to\narrest him, the Constitution forbade them from remaining in\nthe home and searching it. The Court reasoned that despite\nthe lawful initial entry, Mincey retained a constitutionally\nprotected privacy interest in his home that could not be in-\nfringed without a warrant. See id., at 390-391. Similarly,\nin Chimel V. California, 395 U. S. 752 (1969), we could \"see\nnoreason why, simply because some interference with an in-\nand freedom OI movement has adividual's privacy and freedom of movement has lawfully\nintrusions should taken place, further intrusions should automatically be al-\nabsence of a warrant that the lowed despite the absence of a warrant that the Fourth\notherwise require 10 at 76Amendment would otherwise require.\" Id., at 766-767,\nn.\n12.8 Here, by remaining in the home after the initial en-\nSee Oliver V. United States, 466 U.S.\n,\n(1984); Illinois V.\nAndreas, 463 U. S.\n,\n(1983); United States V. Knotts, 460 U. S.\n(1983); Smith V. Maryland, 442 U. S. 735, 739-741 (1979); Terry\nV. Ohio, 392 U. S. 1, 9 (1968).\n'See also, e. g., Welsh V. Wisconsin, 466 U.S.\n(1984); Michi-\ngan V. Clifford, 464 U. S.\n,\n(1984) (plurality opinion); Steagald V.\nUnited States, 451 U. S. 204, 212 (1981); Payton V. New York, 445 U.S.\n573, 583-590 (1980); Coolidge V. New Hampshire, 403 U. S. 443, 481 (1971);\nMcDonald V. United States, 335 U. S. 451, 455-456 (1948); Johnson V.\nUnited States, 333 U. S. 10, 13-14 (1948).\n$See also 395 U. S., at 764-765:\n\"It is argued in the present case that it is 'reasonable' to search a man's\nhouse when he is arrested in it. But that argument is founded on little\nmore than a subjective view regarding the acceptability of certain sorts of\npolice conduct, and not on considerations relevant to Fourth Amendment\ninterests. Under such an unconfined analysis, Fourth Amendment pro-\n82-5298-DISSENT\n6\nSEGURA v. UNITED STATES\ntry, the agents exacerbated the invasion of petitioners' pro-\ntected privacy interests. Even assuming the most innocent\nof motives, the agents' occupation of petitioners' living quar-\nters inevitably involved scrutiny of a variety of personal ef-\nfects throughout the apartment.⁹ Petitioners' privacy inter-\nests were unreasonably infringed by the agents' prolonged\noccupation of their home. THE CHIEF JUSTICE simply ig-\nnores this point, assuming that there is no constitutional dis-\ntinction between surveillance of the home from the outside\nand physical occupation from the inside. THE CHIEF Jus-\nTICE'S assumption is, of course, untenable; there is a funda-\nmental difference when there is a\n\"breach of the entrance to an individual's home. The\nFourth Amendment protects the individual's privacy in a\nvariety of settings. In none is the zone of privacy more\n1 than when-bounded by the unambiguoclearly defined than when bounded by the unambiguous\nensions\nU1\nall\nindividual's home zophysical dimensions of an individual's home-a zone\nS roots in clear and specific constitutionwhich finds its roots in clear and specific constitutional\nght OT the people in secure their terms: \"The right of the people to be secure in their\nhouses\nshall not be violated.\"\nPayton V. New\nYork, 445 U. S. 573, 589 (1980).\nSecond, the agents' occupation was also an unreasonable\n\"seizure\" within the meaning of the Fourth Amendment. A\n\"seizure\" occurs when there is some meaningful interference\nwith an individual's possessory interests. 10 There can be no\ndoubt here that petitioners' possessory interests with respect\ntection in this area would approach the evaporation point. It is not easy to\nexplain why, for instance, it is less subjectively 'reasonable' to search\na man's house when he is arrested on his front lawn-or just down the\nstreet-than it is when he happens to be in the house at the time of arrest.\"\n9 At oral argument, the Government conceded that the agents' occupa-\ntion of the apartment constituted a \"continuing search\" for exactly this rea-\nson. Transcript of Oral Arg. 27, 31.\n\"See United States V. Karo, ante, at ; United States V. Jacobsen,\n466 U.S.\n,\n(1984); United States V. Place, 462 U. S.\n(1983);\nid., at\n(BRENNAN, J., concurring in the result); Texas V. Brown, 460\nU.S.\n(1983) (STEVENS, J., concurring in the judgment).\n82-5298-DISSENT\nSEGURA v. UNITED STATES\n7\nto their apartment were subject to meaningful governmental\ninterference. The agents not only excluded petitioners from\naccess to their own apartment, and thereby prevented them\nfrom exercising any possessory right at all to the apartment\nand its contents, but they also exercised complete dominion\nand control over the apartment and its contents. 11 Our cases\nvirtually compel the conclusion that the contents of the apart-\nment were seized. We have held that when the police take\ncustody of a person, they concomittantly acquire lawful cus-\ntody of his personal effects, see Illinois V. Lafayette, 462\nU.S.\n,\n- (1983); United States V. Edwards, 415 U. S.\n800 (1975); United States V. Robinson, 414 U. S. 218 (1974);\nand when they take custody of a car, they are also in lawful\ncustody of its contents, see South Dakota V. Opperman, 428\nU. S. 364 (1976). Surely it follows that when the authorities\ntake custody of an apartment they also take custody of its\ncontents.\nconstitutionally unreasonable. Evanis seizure was constitutionally unreasonable. Even a\nat its inception can become unreasseizure reasonable at its inception can become unreasonable\ntion. United States V. Place 462because of its duration. United States V. Place, 462 U.S.\n,\n(1983). Even if exigent circumstances justified\nthe entry into and impoundment of the premises pending a\nwarrant-and no one even argues that such circumstances\nexisted-the duration of the seizure would nevertheless have\nbeen unreasonable. While exigent circumstances may jus-\ntify police conduct that would otherwise be unreasonable\n11 While Segura was lawfully in custody during this period, Colon and\nher three companions were not. They were unknown to the agents prior\nto the illegal entry and, as the District Court noted, would have been able\nto remain in the apartment free from governmental interference had the\nunlawful entry not occurred.\n\"THE CHIEF JUSTICE's parsimonious approach to Fourth Amendment\nrights is vividly illustrated by the fact that, as though he were preparing\nan adversary's brief, he is unwilling even to acknowledge explicitly that the\napartment and its contents were seized, but only \"assumes\" that was the\ncase. Ante, at 9.\n82-5298-DISSENT\n8\nSEGURA v. UNITED STATES\nif undertaken without a warrant, such conduct must be\n\"strictly circumscribed by the exigencies which justify its in-\ntiation,\" Terry V. Ohio, 392 U.S. 1, 25-26 (1968). 13 The\ncases THE CHIEF JUSTICE cites, ante, at 10-14, for the prop-\nosition that the Government may impound premises for the\namount of time necessary to procure a warrant thus have no\napplication to this case whatsoever.14 There is no contention\nthat a period of 18-20 hours was even remotely necessary to\nprocure a warrant. The contrast between the 90 minute du-\nration of the seizure of a piece of luggage held unreasonable\nin Place and the 18-20 hour duration of the seizure of the\napartment and its contents in this case graphically illustrates\nthe unreasonable character of the agents' conduct. More-\nover, unlike Place, which involved a seizure lawful at its in-\nception, this seizure was constitutionally unreasonable from\nthe moment it began. It was conducted without a warrant\nof exigent circumstances. 15 It handeim the absence of exigent circumstances. 15 It has been\nST Chimel V. Cantorma. 395 U. clearosince at least Chimel V. California, 395 U.S. 752\n07011. 437 U. S. 385. 393 (1978): G M. Leasing \"See Mincey V. Arizona, 437 U. S. 385, 393 (1978); G. M. Leasing Corp.\nV. United States, 429 U. S. 338, 358-359 (1977); Vale V. Louisiana, 399\nU. S. 30, 34-35 (1970); Chimel V. California, 395 U. S. 752, 762-763\n(1969).\n\"THE CHIEF JUSTICE's misuse of Place, ante, at 17, n. 8, is quite re-\nmarkable. He suggests that Place approved the almost three-day deten-\ntion of Place's luggage before a warrant was obtained, when in fact the\nCourt had no occasion to reach that issue because it held that the initial 90-\nminute detenion of the luggage pending a \"sniff test\" using a trained nar-\ncotics-detecting dog was unreasonable. See 462 U. S., at - Other\nthan this reference to Place, THE CHIEF JUSTICE'S diligent search for sup-\nport for his holding has produced nothing but dissenting opinions and a law\nreview article. See ante, at 13-14, n. 7. Dean Griswold's article, how-\never, did not even purport to answer the question presented by this case.\nSee Griswold, Criminal Procedure, 1969-Is it a Means or an End?, 29 Md.\nL. Rev. 307, 317 (1969).\n\"Since these premises were impounded \"from the inside,\" I assume im-\npoundment would be permissible even absent exigent circumstances when\nit occurs \"from the outside\"-when the authorities merely seal off premises\npending the issuance of a warrant but do not enter.\n82-5298-DISSENT\nSEGURA v. UNITED STATES\n9\n(1969), that the police may neither search nor seize the con-\ntents of a home without a warrant. 16 There is simply no\nbasis for concluding that this 18-20 hour warrantless invasion\nof petitioners' home complied with the Fourth Amendment.\nBecause the agents unreasonably delayed in seeking judicial\nauthorization for their seizure of petitioners' apartment, that\nseizure was unreasonable.\nNevertheless, in what I can only characterize as an aston-\nishing holding, THE CHIEF JUSTICE, joined by JUSTICE\nO'CONNOR, concludes that the 18-20 hour seizure of the\napartment was not unreasonable. He advances three rea-\nsons for that conclusion, none of which has any merit.\nFirst, he seeks to justify the delay because \"the officers fo-\ncused first on the task of processing those whom they had ar-\nrested before turning to the task of securing the warrant.\"\nAnte, at 16. But there is no evidence that this task pre-\nties: indeed. since the arrest of thesented any difficulties; indeed, since the arrest of the occu-\npants itself was unconstitutional, it is truly ironic that THE\nses one wrong to justify another CHIEF JUSTICE uses one wrong to justify another. Of\ne. the District Court expressiv fourgreater significance, the District Court expressly found that\nthe length of the delay was unreasonable and that the Gov-\nernment had made no attempt to justify it; that finding was\nupheld by the Court of Appeals and in this Court the Govern-\nment expressly concedes that the delay was unreasonable. 17\n16 See also Steagald V. United States, 451 U. S. 204 (1981); Payton V.\nNew York, 445 U. S. 573 (1980); Mincey V. Arizona, 437 U. S. 385 (1978);\nVale V. Louisiana, 399 U. S. 30 (1970). In fact, except for an aberrational\nwarrantless \"search incident to an arrest\" exception recognized in United\nStates V. Rabinowitz, 339 U. S. 56 (1950 and repudiated by Chimel, this\nrule has been settled since Agnello V. United States, 269 U. S. 20, 32-33\n(1925). See also Trupiano V. United States, 334 U. S. 699 (1948).\nIT The only explanation the Government has offered for the delay is that\nmost of February 13 was taken up with \"processing\" the arrests. Brief for\nthe United States 5, n. 4. At oral argument, the Government conceded\nthat the delay was unreasonable. Transcript of Oral Arg. 27. At the sup-\npression hearing in the District Court, one of the agents testified that the\nwarrant application was not even presented to a magistrate until 5:00 p. m.\n82-5298-DISSENT\n10\nSEGURA v. UNITED STATES\nSecond, THE CHIEF JUSTICE suggests that it is relevant\nthat the officers did not act in \"bad faith.\" Ante, at 2, 16.\nThis is done despite the fact that there is no finding as to\nwhether the agents acted in good or bad faith; the reason is\nthat the litigants have never raised the issue. More impor-\ntant, this Court has repeatedly held that a police officer's\ngood or bad faith in undertaking a search or seizure is irrele-\nvant to its constitutional reasonableness,¹⁸ and does so again\ntoday.19\nFinally, and \"most important\" to his conclusion, THE\nCHIEF JUSTICE suggests that there was no significant inter-\nference with petitioners' possessory interests in their apart-\nment because they were in custody anyway. Ante, at 16-17.\nThe cases are legion holding that a citizen retains a protected\npossessory interest in his home and the effects within it\nwhich may not be infringed without a warrant even though\nistody.\nMincey\nand\nare that person is in custody. Mincey and Chimel are but two\ndefendents in instances of that general rule-the defendants in both cases\net both were held to have protectsweresin custody, yet both were held to have protected pos-\nI their homes and the effects withisessory interests in their homes and the effects within them\nfringed without WHITERE.\nEven\nthat could not be infringed without a warrant. Even when a\nperson is in custody after an arrest based on probable cause,\nhe still, of course, owns his house and his right to exclude\nothers-including federal narcotics agents-remains invio-\nlate. What is even more strange about THE CHIEF Jus-\nTICE's conclusion is that it permits the authorities to benefit\non February 13. He explained: \"Well, it's very hard to get secretarial\nservices today.\" Tr. 162-163. The Assistant United States Attorney re-\nsponsible for procuring the warrant testified similarly. Tr. 445. The at-\ntorney did not explain why he did not simply write out the two-page appli-\ncation by hand, or seek a telephonic warrant under Fed. Rule Crim. Proc.\n41(c)(2). The District Court found that the delay was unreasonable, App.\n15-16, a finding that the Court of Appeals did not disturb. The Govern-\nment does not challenge that finding in this Court.\n18 See Terry V. Ohio, 392 U. S. 1, 22 (1968); Beck V. Ohio, 379 U. S. 87,\n97 (1964); Henry V. United States, 361 U. S. 98, 102 (1961).\n19 United States V. Leon, ante, at 16, n. 13.\n82-5298-DISSENT\nSEGURA v. UNITED STATES\n11\nfrom the fact that they had unlawfully arrested Colon. Co-\nlon was in her own home when she was arrested without a\nwarrant. That was unconstitutional. 20 If the agents had de-\ncided to obey the Constitution and not arrest Colon, then she\nwould not have \"relinquished control\" over the property and\npresumably it would have been unreasonable for the agents\nto have remained on the premises under THE CHIEF JUS-\nTICE's analysis. However, because the agents conducted an\nunlawful arrest in addition to their previous unlawful entry,\nan otherwise unreasonable occupation becomes \"reasonable.\"\nTHE CHIEF JUSTICE's approach is as reasonable as was the\nagents' conduct. Only in that sense does it achieve its\npurpose.\nThus, on the basis of the record evidence and the findings\nof the District Court, it is clear that the 18-20 hour occupa-\ntion of petitioners' apartment was a second independent vi-\nAmendment Not only was it tiolation of the Fourth Amendment. Not only was it the fruit\nentry into that apartment, DUE of the initial illegal entry into that apartment, but it also\nisonable search and seizure of neconstituted an unreasonable search and seizure of the apart-\nCourt concluded that both ment The District Court concluded that both violations\nshould be remedied by suppression of all of the evidence\nfound in the apartment. The Court of Appeals agreed that\nsuppression of the prewarrant evidence was the proper rem-\nedy for the first violation but prescribed no remedy for the\nsecond. THE CHIEF JUSTICE does not agree that there was\na second violation, and the Court concludes that the uncon-\nstitutional conduct that did occur was neutralized by the ulti-\nmate issuance of a valid warrant. In reaching that conclu-\nsion the Court correctly recognizes that the law requires\nsuppression of the evidence if it was \"come at by exploitation\nof [the initial] illegality\" instead of \"by means sufficiently\ndistinguishable to be purged of the primary taint.\" Ante, at\n8 (quoting Wong Sun V. United States, 371 U.S. 471, 484\n20 Welsh V. Wisconsin, 466 U.S. (1984); Payton V. New York, 445\nU.S. 573 (1980).\n82-5298-DISSENT\n12\nSEGURA v. UNITED STATES\n(1963)). The Court fails, however, to discuss the reason for\nthat rule or how it should apply to the facts of this case.\nIII\nEvery time a court holds that unconstitutionally obtained\nevidence may not be used in a criminal trial it is acutely\naware of the social costs that such a holding entails.\" Only\nthe most compelling reason could justify the repeated imposi-\ntion of such costs on society. That reason, of course, is to\nprevent violations of the Constitution from occurring.22\n\"Justice Holmes commented on this dilemma:\n\"We must consider the two objects of desire, both of which we cannot have,\nand make up our minds which to choose. It is desirable that criminals\nshould be detected, and to that end that all available evidence should be\nused. It also is desirable that the Government should not itself foster and\npay for other crimes, when they are the means by which the evidence is to\nS its officers for having got evidence by crbe obtained. If it pays its officers for having got evidence by crime I do\nnot see why it may not as well pay them for getting it in the same way, and\nance to protestations of disapproval if it Hocan attach no importance to protestations of disapproval if it knowingly\nthat\nin\npay\nfor\naccepts and pays and announces that in future it will pay for the fruits.\n2 We have to choose, and for my part I think it a lesser evil that some crimi-\nnals should escape than that the Government should play an ignoble part.\"\nOlmstead V. United States, 277 U. S. 438, 470 (1928) (dissenting opinion).\n\"Justice Stewart has written that\n\"the Framers did not intend the Bill of Rights to be no more than unen-\nforceable guiding principles-no more than a code of ethics under an honor\nsystem. The proscriptions and guarantees in the amendments were in-\ntended to create legal rights and duties.\n\"The Bill of Rights is but one component of our legal system-the one\nthat limits the government's reach. The primary responsibility for enforc-\ning the Constitution's limits on government, at least since the time of\nMarbury V. Madison, has been vested in the judicial branch. In general,\nwhen law enforcement officials violate a person's Fourth Amendment\nrights, they do so in attempting to obtain evidence for use in criminal pro-\nceedings. To give effect to the Constitution's prohibition against illegal\nsearches and seizures, it may be necessary for the judiciary to remove the\nincentive for violating it. Thus, it may be argued that although the Con-\nstitution does not explicitly provide for exclusion, the need to enforce the\nConstitution's limits on government-to preserve the rule of law-requires\nan exclusionary rule.\" Stewart, The Road to Mapp V. Ohio and Beyond:\n82-5298-DISSENT\nSEGURA v. UNITED STATES\n13\nAs the Court has repeatedly stated, a principal purpose of\nthe exclusionary rule is to deter violations of the Fourth\nAmendment. See, e. g., Stone V. Powell, 428 U. S. 465, 486\n(1976); United States V. Janis, 428 U. S. 433, 446-447 (1976);\nUnited States V. Peltier, 422 U. S. 531, 536-539 (1975);\nUnited States V. Calandra, 414 U. S. 338, 347-348 (1974).\n\"The rule is calculated to prevent, not to repair. Its\npurpose is to deter-to compel respect for the constitu-\ntional guaranty in the only effectively available way-by\nremoving the incentive to disregard it.\" Elkins V.\nUnited States, 364 U. S. 206, 217 (1960).\nThe deterrence rationale for the exclusionary rule some-\ntimes, but not always, requires that it be applied to the indi-\nrect consequences of a constitutional violation. If the Gov-\nernment could utilize evidence obtained through exploitation\nit would retain an incentive In enofoillegal conduct, it would retain an incentive to engage in\nTo forbid the arrect use OI that conduct. \"To forbid the direct use of methods thus\nillegal] but to put no curb on their characterized [as illegal] but to put no curb on their full indi-\naly invite the very methods deemed rectouse would only invite the very methods deemed 'incon-\nsistent with ethical standards and destructive of personal lib-\nerty.\" Nardone V. United States, 308 U. S. 338, 340 (1939).\nWe have not, however, mechanically applied the rule to\nevery item of evidence that has a causal connection with\npolice misconduct. \"The notion of 'dissipation of the taint'\nattempts to mark the point at which the detrimental conse-\nquences of illegal police conduct become SO attenuated that\nthe deterrent effect of the exclusionary rule no longer justi-\nfies its cost.\" Brown V. Illinois, 422 U. S. 590, 609 (1975)\n(POWELL, J., concurring in part).\nThe Origins, Development and Future of the Exclusionary Rule, 83 Colum.\nL. Rev. 1365, 1383-1384 (1983).\n3See 3 W. LaFave, Search and Seizure § 11.4(a) (1978); Amsterdam,\nSearch, Seizure, and Section 2255: A Comment, 112 U. Pa. L. Rev. 378,\n388-390 (1964); Pitler, \"The Fruit of the Poisonous Tree\" Revisited and\nShepardized, 56 Calif. L. Rev. 579, 586-589 (1968).\n82-5298-DISSENT\n14\nSEGURA v. UNITED STATES\nThis point is well illustrated by our cases concerning the\nuse of confessions obtained as the result of unlawful arrests.\nIn Wong Sun V. United States, 371 U. S. 471 (1963), we re-\njected a rule that any evidence that would not have been\nobtained but for the illegal actions of the police should be sup-\npressed. See id., at 487-488, 491. Yet in Brown V. Illi-\nnois, 422 U. S. 590 (1975), while continuing to reject a \"but-\nfor\" rule, see id., at 603, we held that the taint of an unlawful\narrest could not be purged merely by warning the arrestee of\nhis right to remain silent and to consult with counsel as re-\nquired by Miranda V. Arizona, 384 U. S. 436 (1966). We\nexplained:\n\"If Miranda warnings, by themselves, were held to\nattenuate the taint of an unconstitutional arrest, regard-\nless of how wanton and purposeful the Fourth Amend-\nthe effect of the exclusionary rule worment violation, the effect of the exclusionary rule would\ndiluted. Arrests made without be substantially diluted. Arrests made without warrant\nbable cause. for questioning or investior without probable cause, for questioning or \"investiga-\nencouraged by the knowledge that tion,' would be encouraged by the knowledge that evi-\ndence derived therefrom could well be made admissible\nat trial by the simple expedient of giving Miranda warn-\nings. Any incentive to avoid Fourth Amendment viola-\ntions would be eviscerated by making the warnings, in\neffect, a 'cure-all,' and the constitutional guarantee\nagainst unlawful searches and seizures could be said to\nbe reduced to 'a form of words.\" 422 U. S., at 602-603\n(citation and footnote omitted)\nThese holdings make it clear that taint questions do not de-\npend merely on questions of causation; causation is a neces-\nsary but not a sufficient condition for exclusion. In addition,\nit must be shown that exclusion is required to remove the in-\ncentive for the police to engage in the unlawful conduct.\nWhen it is, exclusion is mandated if the Fourth Amendment\nis to be more than \"a form of words.\"\n82-5298-DISSENT\nSEGURA v. UNITED STATES\n15\nIV\nThe Court concludes that the evidence introduced against\npetitioners at trial was obtained from a source that was \"in-\ndependent\" of the prior illegality-the search warrant. The\nCourt explains that since the police had a legal basis for ob-\ntaining and executing the search warrant, the fruits of the\nauthorized search were not produced by exploitation of the\nprior illegality. Ante, at 17-18. There are significant an-\nalytical difficulties lurking in the Court's approach. First,\nthe Court accepts the distinction between the evidence ob-\ntained pursuant to the warrant and the evidence obtained\nduring the initial illegal entry. Ante, at 17-18; see also ante,\nat 15 (opinion of BURGER, C. J.). I would not draw a distinc-\ntion between the pre-warrant evidence and the post-warrant\nevidence. The warrant embraced both categories equally\nthere is no and if there had been no unlawful entry, there is no more rea-\nson to believe that the evidence in plain view would have re-\ntment and would have been obtainednained in the apartment and would have been obtained when\nexecuted than the evidence that the warrant was executed than the evidence that was con-\nan\nincrifealed. The warrant provided an \"independent\" justification\nfor seizing all the evidence in the apartment-that in plain\nview just as much as the items that were concealed. The\n\"plain view\" items were not actually removed from the apart-\nment until the warrant was executed;24 thus there was no\nmore interference with petitioners' possessory interest in\nthose items than with their interest in the concealed items.\nIf the execution of a valid warrant takes the poison out of the\nhidden fruit, I should think that it would also remove the\ntaint from the fruit in plain view.25\n24 Tr. 259.\n25 I recognize that the legality of the seizure of the evidence that was in\nplain view when the officers entered is not before us, but I find it necessary\nto discuss it since it affects the analysis of the issue that is in dispute. THE\nCHIEF JUSTICE does SO as well; he relies on the deterrent effect of the sup-\npression of the evidence found in plain view in responding to petitioners'\n82-5298-DISSENT\n16\nSEGURA v. UNITED STATES\nSecond, the Court's holding is inadequate to resolve the\nclaims raised by petitioners. The Court states that the\nfruits of the judicially authorized search were untainted be-\ncause \"[n]o information obtained during the initial entry or\noccupation of the apartment was needed or used by the\nagents to secure the warrant.\" Ante, at 17. That is suffi-\ncient to dispose only of a claim that petitioners do not make-\nthat the information which led to the issuance of the search\nwarrant was tainted. It does not dispose of the claim that\npetitioners do make-that the agents' access to the fruits of\nthe authorized search, rather than the information which led\nto that search, was a product of illegal conduct. On this\nquestion, the length of the delay in obtaining the warrant is\nsurely relevant.\nIf Segura had not returned home at all that night, or dur-\n18\nbrobable\nUNITED\ning the next day, it is probable that the occupants of the\nve become concerned and might apartment would have become concerned and might at least\nrecords of their illegal transactionshave destroyed the records of their illegal transactions, or re-\nvidence\nIf\nmoved some of the evidence. If one of the occupants had left\naken evidence with him or her durthe apartment and taken evidence with him or her during the\n18-20 hour period prior to the execution of the search\nwarrant, then obviously that evidence would not have been\naccessible to the agents when the warrant finally was exe-\ncuted.26 The District Court concluded that there was a pos-\nsibility that the evidence's availablilty when the warrant was\nexecuted hinged solely on the illegal impoundment. It\nfound: \"The evidence would not inevitably have been discov-\nargument that the Court of Appeals' decision will encourage illegal entries\nin the course of securing premises from the inside. Ante, at 15.\n25 It is by no means impossible that at least one of the occupants might\nhave been able to leave the apartment. None of them was known to the\nagents, and if the agents were located outside the apartment building,\nthey would not have known that a person leaving the building would have\ncome from petitioners' apartment. There were quite a few apartments on\neach floor of the apartment building. Tr. 253. Moreover, as the District\nCourt noted, the agents could not see petitioners' apartment from their po-\nsition in the front of the building.\n82-5298-DISSENT\nSEGURA v. UNITED STATES\n17\nered. In fact, Colon might well have destroyed the evidence\nhad she not been illegally excluded [from the apartment].\"\nApp. 15. This finding indicates that there is substantial\ndoubt as to whether all of the evidence that was actually\nseized would have been discovered if there had been no illegal\nentry and occupation.\nThe majority insists that the idea that access to evidence is\na relevant consideration is \"unsound\" because it would \"ex-\ntend\" the exclusionary rule and \"further 'protect' criminal ac-\ntivity,\" ante, at 19. However, this very point is far from\nnovel; it actually has been the long-settled rule. It is implicit\nin virtually every case in which we have applied the exclu-\nsionary rule. In the seminal case, Weeks V. United States,\n232 U. S. 383 (1914), federal agents illegally entered Weeks'\nhouse and seized evidence. The Court ordered the evidence\nsuppressed precisely because absent the illegality, the agents\nobtained accèss to the evidence. Swould never have obtained access to the evidence. See id.,\ne recently. in Payton V. New Yorat 393-394. More recently, in Payton V. New York, 445\nve held that suppression was required Se573 (1980), we held that suppression was required be-\nvere not authorized to enter the hoauseithe agents were not authorized to enter the house; it\nwas the Fourth Amendment violation that enabled them to\nobtain access to the evidence. Indeed, we have regularly in-\nvoked the exclusionary rule because the evidence would have\neluded the police absent the illegality. Here, too, if the evi-\ndence would not have been available to the agents at the time\nthey finally executed the warrant had they not illegally en-\ntered and impounded petitioners' apartment, then it cannot\n27 The element of access, rather than information, is central to virtually\nthe whole of our jurisprudence under the Warrant Clause of the Fourth\nAmendment. In all of our cases suppressing evidence because it was ob-\ntained pursuant to a warrantless search, we have focused not on the au-\nthorities' lack of appropriate information to authorize the search, but\nrather on the fact that that information was not presented to a magistrate.\nThus, suppression is the consequence not of a lack of information, but of\nthe fact that the authorities' access to the evidence in question was not\nproperly authorized and hence was unconstitutional.\n82-5298-DISSENT\n18\nSEGURA v. UNITED STATES\nbe said that the agents' access to the evidence was \"independ-\nent\" of the prior illegality.\nThe unlawful delay provides the same justification for sup-\npression as does the unlawful entry: both violations precluded\nthe possibility that evidence would have been moved out of\nthe reach of the agents. We approved of exactly that princi-\nple only last Term, in United States V. Place, 462 U.S.\n(1983). There, luggage was detained for some 90 minutes\nuntil a trained narcotics detection dog arrived. The dog\nthen sniffed the luggage, signaled the presence of narcotics, a\nwarrant was obtained on the strength of the dog's reaction,\nand when the warrant was executed, narcotics were discov-\nered. The Court held that while the initial seizure was law-\nful, it became unreasonable because of its duration. Thus,\nabsent the illegality, the authorities would have had to give\nthe luggage back to Place, who would have then taken it\nnce was obtained in violation OF the away. The evidence was obtained in violation of the Fourth\nAmendment because it was the unlawful delay that pre-\n€ from disappearing before it couldvented the evidence from disappearing before it could be ob-\norities. That is precisely the ciaintained by the authorities. That is precisely the claim made\nby petitioners here.\nWhen it finally does confront petitioners' claim concerning\nthe relationship between the unlawful occupation of their\napartment and the evidence obtained at the conclusion of that\noccupation, ante, at 19-20, the Court rejects it for two rea-\nsons. First, it finds the possibility that the evidence would\nnot have been in the apartment had it not been impounded to\nbe speculative. However, the District Court found a dis-\ntinct, nonspeculative possibility that the evidence would not\nhave been available to the police had they not entered the\n28 Even more recently, in Welsh V. Wisconsin, 466 U.S. (1984), we\nagain employed this concept. The Court held that police could not justify\nunder the Fourth Amendment the warrantless arrest of Welsh, who was\nsuspected of drunk driving, in his own home, \"simply because the evidence\nmight have dissipated while the police obtained a warrant.\" Id., at\n(footnote omitted).\n82-5298-DISSENT\nSEGURA v. UNITED STATES\n19\napartment illegally. The Court is obligated to respect that\nfinding unless found to be clearly erroneous, which it is not.\nIndeed, it is equally speculative to assume that the occupants\nof the apartment would not have become concerned enough\nto take some action had Segura been missing for 18-20\nhours. 29 Second, the Court thinks it \"prudentially unsound\"\nto suppress the evidence, noting a certain irony in extending\nthe protection of the Constitution simply because criminals\nmay destroy evidence if given the chance. This analysis con-\nfuses two separate issues however, (1) whether the initial en-\ntry was justified by exigent circumstances; and (2) whether\nthe discovery of the evidence can be characterized as \"inev-\nitable\" notwithstanding the 18 hour delay. There is no dis-\npute that the risk of immediate destruction did not justify the\nentry. The argument petitioners make is not that there was\nhreat of destruction of evidence. bisome immediate threat of destruction of evidence, but that\ntantial\npossibility\nthat\nothere was a substantial possibility that over the course of\nseals.\nwith\nwhich\nthis\nCourt\nnoted\nthathe Court of Appeals, with which this Court agrees, noted that the\nDistrict Court's ruling depended on \"speculative assumptions,\" such as\nthat the agents would not have kept the apartment under surveillance af ter\nSegura's arrest had they not illegally entered it, that Colon would have de-\nstroyed the evidence rather than merely removed it from the apartment,\nor that the evidence could have been destroyed unobtrusively. However,\neach of these \"assumptions\" is supported by the evidence. First, the\nagents would have had no reason to keep the apartment under surveillance\nsubsequent to the arrests of all the persons that they had surveilled, Parra,\nRivadulla and Segura. Second, even if Colon had merely removed the evi-\ndence from the apartment, there is reason to believe the agents would not\nhave intercepted her. See n. 26, supra. Third, since the agents were\noutside the apartment and would have had no reason to remain on the\nscene after Segura's arrest, they would not have been around to notice had\nevidence been removed or destroyed unobtrusively. Moreover, even if it\nwould have been difficult to remove or destroy some of the evidence, such\nas the triple-beam scale petitioners owned, that does not mean that all of\nthe evidence would have remained in the apartment over the course of an\n18-20 hour period. The Court of Appeals' assumptions to the contrary are\njust as \"speculative\" as the finding of the District Court.\n82-5298-DISSENT\n20\nSEGURA v. UNITED STATES\n18-20 hours at least some of the evidence would have been\nremoved or destroyed.\nFor me, however, the controlling question should not be\nanswered merely on the basis of such speculation, but rather\nby asking whether the deterrent purposes of the exclusionary\nrule would be served or undermined by suppression of this\nevidence. That is the appropriate \"prudential\" consider-\nation identified in our exclusionary rule cases. The District\nCourt found that there was a distinct possibility that the evi-\ndence was preserved only through an illegal occupation of pe-\ntitioners' apartment. That possibility provides a sufficient\nreason for asking whether the deterrent rationale of the ex-\nclusionary rule is applicable to the second constitutional viola-\ntion committed by the police in this case.\nV\nof anniving the exclusionary The importance of applying the exclusionary rule to the po-\nS case is underscored by its factsliceTconduct in this case is underscored by its facts. The\nof\npetitioners' WCC blatan18-20 hour occupation of petitioners' home was blatantly un-\nthe same time. the law-enforcemeconstitutional At the same time, the law-enforcement jus-\ntification for engaging in such conduct is exceedingly weak.\nThere can be no justification for inordinate delay in securing\na warrant. Thus, applying the exclusionary rule to such con-\nduct would impair no legitimate interest in law enforcement.\n30 The cases in the lower courts the majority cites in support of its hold-\ning, ante, at 18, n. 9, are plainly distinguishable. In United States V. Pe-\nrez, 700 F. 2d 1232, 1237-1238 (CA8 1983), the court remanded for a hear-\ning as to whether the search and seizure authorized by a warrant was\ntainted by prior illegality. In United States V. Kinney, 638 F. 2d 941, 945\n(CA6), cert. denied, 452 U. S. 918 (1981), the court found no taint, but in\nthat case there was no occupation of the searched premises prior to obtain-\ning the warrant and hence no claim of the type made here. The same is\ntrue of the other cases the Court cites, United States V. Bosby, 675 F. 2d\n1174, 1180-1181 (CA11 1982); United States V. Fitzharris, 633 F. 2d 416\n(CA5 1980), cert. denied, 452 U. S. 918 (1981); United States V. Agapito,\n620 F. 2d 324. 338 (CA2), cert. denied, 449 U. S. 834 (1980). As the Court\nconcedes, United States V. Lomas, 706 F. 2d 886 (CA9 1983), and United\nStates V. Allard, 634 F. 2d 1182 (CA9 1980), are contrary to its holding.\n82-5298-DISSENT\nSEGURA v. UNITED STATES\n21\nMoreover, the deterrence rationale of the rule is plainly ap-\nplicable. The agents impounded this apartment precisely\nbecause they wished to avoid risking a loss of access to the\nevidence within it. Thus, the unlawful benefit they acquired\nthrough the impoundment was not SO \"attenuated\" as to\nmake it unlikely that the deprivation of that benefit through\nthe exclusionary rule would have a deterrent effect. To the\ncontrary, it was exactly the benefit identified by the District\nCourt-avoiding a risk of loss of evidence-that motivated\nthe agents in this case to violate the Constitution. Thus, the\npolicies underlying the exclusionary rule demand that some\ndeterrent be created to this kind of unconstitutional conduct.\nYet the majority's disposition of this case creates none.\nUnder the majority's approach, the agents could have re-\nmained indefinitely-impounding the apartment for a week\nor a month-without being deprived of the advantage de-\nawrut\nimpounament. we cannot rived-from the unlawful impoundment. We cannot expect\nsuch an approach to prevent similar violations of the Fourth\nfuture.\nAmendment in the future.\nexclusionary rule should he applieIn my opinion the exclusionary rule should be applied to\nboth of the constitutional violations to deprive the authorities\nof the advantage they gained as a result of their unconstitu-\ntional entry and impoundment of petitioners' apartment.\nThe deterrence rationale of the exclusionary rule requires\nsuppression unless the Government can prove that the evi-\ndence in fact would have remained in the apartment had it\nnot been unlawfully impounded. The risk of uncertainty as\nto what would have happened absent the illegal conduct\nposed by the facts of this case should be borne by the party\nthat created that uncertainty, the Government. That is the\nteaching of our exclusionary rule cases. See Taylor V. Ala-\nbama, 457 U. S. 687, 690 (1982); Dunaway V. New York, 442\nU. S. 200, 218 (1979); Brown V. Illinois, 422 U. S. 590, 604\n(1975).\nFurther proceedings are necessary in this case if petition-\ners' claim is to be properly evaluated. The District Court\n82-5298-DISSENT\n22\nSEGURA v. UNITED STATES\nfound only that there was a demonstrable possiblity that the\nevidence obtained during the execution of the search warrant\nwould have been destroyed absent the illegal entry and im-\npoundment. While this finding is sufficient to establish\nprima facie that the Government exploited the illegality by\navoiding a risk of losing the evidence in the apartment, the\nexistence of a mere possibility cannot be equated with an ulti-\nmate finding that such exploitation did in fact occur. The\nDistrict Court made no specific finding as to whether the\nGovernment had demonstrated that the evidence obtained\npursuant to the search warrant would have remained in the\napartment had the agents not illegally entered and im-\npounded it. It may be that an evidentiary hearing would be\nnecessary to supplement the record on this point. Accord-\ningly, I would remand this case to the Court of Appeals with\nTO\nInstrier\ninstructions that it be remanded to the District Court for fur-\nther proceedings.\nTA\nVI\nmt. aid not contest The platant Government did not contest the blatant unconstitu-\ntionality of the agents' conduct in this case. Nevertheless,\ntoday's holding permits federal agents to benefit from that\nconduct by avoiding the risk that evidence would be unavail-\nable when the search warrant was finally executed. The ma-\njority's invocation of the \"enormous price\" of the exclusionary\nrule and its stated unwillingess to \"protect criminal activity,\"\nante, at 19, is the most persuasive support that the Court\nprovides for its holding. Of course, the Court is quite right\nto be ever mindful of the cost of excessive attention to proce-\ndural safeguards. But an evenhanded approach to difficult\ncases like this requires attention to countervailing consider-\nations as well. There are two that I would stress.\nFirst, we should consider the impact of the Court's holding\non the leaders of the law enforcment community who have\nachieved great success in creating the kind of trained, profes-\nsional officers who deservedly command the respect of the\ncommunities they serve. The image of the \"keystone cop\"\n82-5298-DISSENT\nSEGURA v. UNITED STATES\n23\nwhose skills seldom transcended the ham-handed employ-\nment of the \"third degree\" is largely a matter of memory for\nthose of us who lived through the 1920s, 1930s and 1940s.\nFor a congery of reasons, among which unquestionably is the\nadded respect for the constitutional rights of the individual\nengendered by cases like Miranda V. Arizona, 384 U. S. 436\n(1966), and Mapp V. Ohio, 367 U. S. 643 (1961), the profes-\nsionalism that has always characterized the Federal Bureau\nof Investigation is now typical of police forces throughout the\nland. A rule of law that is predicated on the absurd notion\nthat a police officer does not have the skill required to obtain\na valid search warrant in less than 18 or 20 hours, or that fails\nto deter the authorities from delaying unreasonably their at-\ntempt to obtain a warrant after they have entered a home, is\ndemeaning to law enforcment and can only encourage sloppy,\nundisciplined procedures.\nit's rhetoric cannot disguise the fact Second, the Court's rhetoric cannot disguise the fact that\nferates. but provides an when it not only tolerates, but provides an affirmative incen-\nSS and plainly unreasonable and urtiveefor warrantless and plainly unreasonable and unneces-\nto the home, the resulting erosion afylintrusions into the home, the resulting erosion of the\nsanctity of the home is a \"price\" paid by the innocent and\nguilty alike.³ More than half a century ago, Justice Holmes\n31 The words of Justice Jackson that this case calls to my mind are not\nthose of his Nardone dissent, ante, at 20, but rather those in two of his\nother dissents. With respect to the claim that the Fourth Amendment\n\"protect[s] criminal activity,\" he wrote: \"Only occasional and more flagrant\nabuses come to the attention of the courts, and then only those where the\nsearch and seizure yields incriminating evidence and the defendant is at\nleast sufficiently compromised to be indicted\nCourts can protect the\ninnocent against such invasions only indirectly and through the medium of\nexcluding evidence obtained against those who frequently are guilty\nSo a search against Brinegar's car must be regarded as a search of the car\nof Everyman.\" Brinegar V. United States, 338 U.S. 160, 181 (1949).\nAnd with respect to the \"price\" exacted by the exclusionary rule, he wrote:\n\"[T]he forefathers thought this was not too great a price to pay for that\ndecent privacy of home, papers and effects which is indispensible to indi-\nvidual dignity and self-respect. They may have overvalued privacy, but\n82-5298-DISSENT\n24\nSEGURA v. UNITED STATES\nexplained why the Government cannot be permitted to bene-\nfit from its violations of the Constitution.\n\"The Government now, while in form repudiating and\ncondemning the illegal seizure, seeks to maintain its\nright to avail itself of the knowledge obtained by that\nmeans which otherwise it would not have had.\n\"The proposition could not be presented more nakedly.\nIt is that although of course its seizure was an outrage\nthe Government now regrets,\nthe protection of the\nConstitution covers the physical possession but not any\nadvantages that the Government can gain over the ob-\nject of its pursuit by doing the forbidden act\nIn\nour opinion such is not the law. It reduces the Fourth\nAmendment to a form of words. The essence of a provi-\nsion forbidding the acquisition of evidence in a certain\nmereiv evidence SO acquired shall not way is that not merely evidence SO acquired shall not be\nCourt but that it shan HOL De used au alused before the Court but that it shall not be used at all.\"\number Co V. United States, 251 U. Silverthorne Lumber Co. V. United States, 251 U.S.\n920) (citation omitted).\n385, 391-392 (1920) (citation omitted).\nIf we are to give more than lip service to protection of\nthe core constitutional interests that were twice violated in\nthis case, some effort must be made to isolate and then re-\nmove the advantages the Government derived from its illegal\nconduct.\nI respectfully dissent.\nI am not disposed to set their command at naught.\" Harris V. United\nStates, 331 U. S. 145, 198 (1947)."
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