State v. Rowe

GARFF, Judge

(concurring):

I concur in the main opinion but make three further comments. First, one should not construe the main opinion so broadly as to guarantee every person invited into a home the type of privacy protected by the fourth amendment. Any number of possibilities arise where one might be classified as an “invited guest,” but may not necessarily be entitled to a constitutional expectation of privacy. For example, a Fuller Brush sales person, invited into a home to demonstrate a product, may not have standing to challenge an illegal search warrant. The emphasis in Olson, as here, is that the circumstances that create a legitimate expectation of privacy in the home must be such that society is prepared to recognize them as reasonable. That determination is fact sensitive and the test need not be overly complex. In Olson it was the mere fact that defendant was an overnight guest. As an overnight guest, he had the reasonable expectation that he and his possessions would not be disturbed by anyone, and that when he was asleep and most vulnerable, he would be safe from any unwarranted intrusion. Although here we are not sure whether defendant was intended to be an overnight guest, circumstances suggest that she was in a more privileged position in the house than a casual, card playing guest: she had a close relationship with the home owner, had been there on other occasions, had free run of the house, and felt comfortable enough to “make herself at home,” in a literal sense.

The second point I would make is that whenever a “canned,” or preprinted affidavit is presented to a magistrate, he or she *740has an affirmative responsibility to scrutinize the factual circumstances justifying the search warrant. Conclusory or ambiguous statements in the affidavit are insufficient. This is particularly critical when the warrant authorizes nighttime intrusion into a person’s home.

Finally, while the analysis in the Appendix to our opinion is good food for thought in a case where the state has argued the applicability of the good faith exception to the exclusionary rule, in joining the court’s opinion I emphasize its narrow application, and in no sense intimate any view on whether the Leon exception does or does not make good policy, much less on whether it should or not have any vitality under our state constitution. Those questions are reserved for another day.

JACKSON, J., dissents.

APPENDIX

The Leon Court, perhaps alarmed at society’s prospects of failure in the so-called “drug war,” premised the good faith exception on expediency. The Court concluded that the exclusionary rule’s sole purpose was to deter police misconduct. This view minimizes the history of the adoption of the Fourth Amendment and the development of the exclusionary rule itself. Origins of the Fourth Amendment are based not so much upon law enforcement misconduct in executing warrantless searches, as in concerns about the unreasonable issuance of general search warrants. The exclusionary rule was born as a constitutional remedy for violations of the Fourth Amendment generally, with no particular emphasis on police behavior.

General Warrants

General warrants have their derivation in thirteenth century universal authorizations granted to innkeepers to search guests for counterfeit currency. Stengel, The Background of the Fourth Amendment to the Constitution of the United States, Part One, 3 U.Rich.L.Rev. 278, 283 (1969). With the onset of the Age of Enlightenment and accompanying reform movements, England’s threatened monarchs issued sweeping general warrants to search papers, books, and documents for evidence of sedition and libel against the Crown. For nearly a century, members of the private printer’s guild used these warrants to seize and destroy the presses of printers who failed to join their union. Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum.L.Rev. 1365, 1369 (1983).

James I, Charles I, and Charles II, rulers during the seventeenth century, instituted unprecedented general warrants allowing agents of the notorious Court of the Star Chamber to search virtually at any time and any place for seditious printed matter. See Marcus v. Search Warrants, 367 U.S. 717, 726, 81 S.Ct. 1708, 1713, 6 L.Ed.2d 1127 (1961). Tax collectors were granted general warrants to enter castles and cottages, at any time without notice, to enforce the hearth tax. Not until a revolution which placed a reform king, William of Orange, upon the throne, and a suit for trespass by a member of Parliament, did judicial review effectively limit the reach of general warrants. Chief Justice Pratt (Lord Camden) concluded in Wilkes v. Wood, 98 Eng.Rep. 489 (1763):

The defendants claimed a right, under precedents, to force persons houses, break open escrutores, seize their papers & c. upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall. [Such power] is totally Subversive of the liberty of the subject.

Id. at 498. See also Entick v. Carrington, 95 Eng.Rep. 807 (1765). These cases were known to the authors of the Fourth Amendment, and Wilkes v. Wood is generally regarded to be the formative inspiration for the passage of the Fourth Amendment. See Boyd v. United States, 116 U.S. 616, 631, 6 S.Ct. 524, 533, 29 L.Ed. 746 (1886).

*741Colonial Writs of Assistance

In the American colonies, particular exception was taken to the practice of granting writs of assistance to customs officers. These writs, granted by King George II, were valid for the King’s lifetime and granted unlimited power to the officers to search at any place and any time without the need for judicial review or subsequent proceedings. Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum.L.Rev. 1365, 1370 (1983).

In 1760, King George II died and new writs were required. The colonists sought judicial relief from the new writs. James Otis, a prominent attorney in the service of the Crown whose position required him to seek the writs from the Superior Court, instead resigned his post and argued the cause on behalf of sixty-three Boston citizens. N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 58-59 (1937, Johns Hopkins Press; reprinted 1970, Da-Capo Press). Years later, John Adams claimed it was James Otis’s fiery denunciation of general warrants in open court that provided the spark for the American Revolution. Id.

This historical review suggests that the issuance of flawed warrants was of greater concern to the drafters of the Fourth Amendment than was the conduct of officers charged with the duty to execute such warrants. See Warden v. Hayden, 387 U.S. 294, 316, 87 S.Ct. 1642, 1655, 18 L.Ed.2d 782 (1967) (Fortas, J., dissenting) (describing the text of the original draft of the Fourth Amendment).

The Exclusionary Rule

An exclusionary rule was first applied in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). It is instructive that Boyd involved no issue of police action or misconduct. The challenge in Boyd was to a judicially-issued subpoena in a civil forfeiture case. Paralleling the circumstances under which the writs of assistance were condemned, Boyd involved a subpoena for books and papers of merchants accused of unlawfully importing glass. Id. at 621, 6 S.Ct. at 527. The Supreme Court concluded that because the papers were sought for what was essentially a criminal process, forfeiture for customs duties, the Fourth Amendment applied. However, the Court did not order suppression directly on Fourth Amendment grounds. Rather, the Court reasoned that the forced production of incriminatory papers and documents would violate the Fifth Amendment and accordingly ordered suppression of the material obtained under the subpoena.

Twenty-two years later, a unanimous Court decided Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), which firmly established the exclusionary rule as a fundamental principle of Fourth Amendment law. Defendant Weeks had been convicted of gambling, on the basis of personal papers which were unlawfully seized. Before trial, Weeks moved for the return of his illegally seized papers. The Court held that the government was constitutionally bound to return the improperly seized documents, which could not then be subpoenaed by the prosecution, and reversed Weeks’ conviction. Id. at 398, 34 S.Ct. at 346. See also Schrock & Welsh, Up From Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 Minn.L.Rev. 251, 295-308 (1974) (discussing the impact of the Weeks decision).

A few years later, the Court decided Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), and Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921). The combined cases framed the exclusionary rule as barring any use whatsoever of improperly seized evidence. Writing for the Court in Silverthorne, Justice Oliver Wendell Holmes stated: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” 251 U.S. at 392, 40 S.Ct. at 183. Ultimately, and after further refinement, the Fourth Amendment exclu*742sionary rule was applied to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961).

Against this background, it would seem appropriate that courts considering the scope of the Fourth Amendment exclusionary rule be mindful of the process of review and issuance of the warrant, as well as the lawfulness of the police officer’s execution thereof.

The Trouble with Leon

It is viewed from this historical perspective that United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), represents such a qualitative change in the development of exclusionary rule jurisprudence. Writing for the Court, Justice White offered three justifications for the conclusion that the exclusionary rule was aimed at police misconduct and had no impact on the judicial review of warrant applications. First, he declared that the exclusionary rule was not designed to deter judges from error. Id. at 916, 104 S.Ct. at 3417. “Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment....” Id. Finally, and “most important,” judges are neutral judicial officers, not adjuncts to law enforcement administration, and the exclusionary rule will have no practical deterrent effect on them. Id. at 916-17, 104 S.Ct. at 3417.

The first and third assertions seem at odds with the fact that the exclusionary rule, as first “designed” in Boyd, was expressly created as a remedy for judicial error. Moreover, these assertions discount the historical concerns about the issuance of general warrants and writs of assistance. In the instant case, there is no allegation of police misconduct in the warrant application process. The defect in the warrant might have been easily cured by careful questioning by an attentive magistrate. This is likely the more common scenario when a warrant’s validity is challenged. See State v. Marsala, 216 Conn. 150, 579 A.2d 58, 67 (1990). Often the reviewing judge will simply evaluate the warrant application for gross errors of law or something out of the ordinary, acting, in effect, as a rubber stamp. See Goldstein, The Search Warrant, the Magistrate, and Judicial Review, 62 N.Y.U.L.Rev. 1173, 1182 (1987); Wasserstrom & Mertens, The Exclusionary Rule on the Scaffold: But Was it a Fair Trial?, 22 Am.Crim.L.Rev. 85, 108-09 (1984) (citing statistical evidence of lax warrant review standards). Much of the exclusionary rule’s vigor prior to Leon was in requiring the magistrate to assiduously exercise his or her Fourth Amendment duty by carefully scrutinizing warrant applications.

Justice White's second assertion, if true, calls into serious question the practical need for the Leon exception to the exclusionary rule. He gives high marks to judges and magistrates, claiming that few issue warrants not firmly grounded in probable cause. If indeed this is so, but see id., the exclusionary rule would almost never be invoked in warrant-based searches, even without the Leon doctrine, since the magistrate will have scrutinized the application and issued the warrant only upon a detailed and well-supported showing of probable cause. Thus, the societal costs of the exclusionary rule, a great concern for the Leon Court, will be minuscule in the context of cases where a warrant is obtained.

It may additionally be questioned whether the societal costs of the exclusionary rule are as onerous as Justice White believes them to be. The Leon Court reasoned that the “marginal or nonexistent benefits produced by suppressing evidence ... cannot justify the substantial costs of exclusion.” 468 U.S. at 922, 104 S.Ct. at 3420. But several scholars who have examined Leon’s “economic” conclusions refute them as groundless in fact. See Nardulli, The Societel Costs of the Exclusionary Rule Revisited, 1987 U.Ill.L.Rev. 223, 239 (exclusionary rule accounts for less than two percent of case attrition); 1 W. LaFave, Search & Seizure § 1.3 at 46 n. 5 (2d ed. 1987 & Supp.1990). Moreover, while the societal cost of suppressing evidence may in some respects be more tangi*743ble — it surely prompts an understandable visceral reaction by many — the system’s use of illegally obtained evidence is not without societal costs of its own. True, it may be, that freeing a criminal because the constable (or magistrate) erred is not an entirely satisfactory state of affairs. But in a society committed to the notion that governmental action as well as citizen behavior is subject to the rule of law, it should also be regarded as an unsatisfactory state of affairs to countenance the use of evidence that should not have been uncovered, under our rules, to convict a citizen of some crime.

We believe the exclusionary rule may well have, as a substantial purpose, the objective of requiring careful judicial scrutiny of warrant applications. Simply put, it is unlikely magistrates are any more pleased to have their warrants “thrown out” by reviewing courts than are the police to have their evidence “thrown out.” Such stimulation extends also to appellate review. Rigorous appellate review of search warrants and the accompanying benefit of defining search and seizure law would be effectively precluded if Leon were given wide rein, as the court would have little occasion to proceed beyond an inquiry into the trial court’s finding of the officer’s good faith. Similarly, issuing magistrates who are less than zealous in their devotion to the Fourth Amendment would have little motivation to look beyond the face of the warrant, knowing that as long as the warrant is facially proper, the appellate court would not interfere in view of the officer’s good faith in executing a facially proper warrant.

Were an officer permitted to rely on a facially valid warrant without more being required of him or her, there would be no incentive for advanced training which would enable officers to better fulfill their duty to uphold the constitutions of the United States and of this state. Moreover, the well-trained officer or prosecutor securing a warrant will be in a position to prevent the very harm which led to the good faith exception. An officer who is motivated to prepare a constitutionally adequate warrant application will be less likely to rush through a warrant application, and will more carefully evaluate the sufficiency of probable cause, so that the warrant will withstand ultimate review and not merely gain the signature of an issuing magistrate. Similarly, the prosecutors who must argue the validity of warrants in court will be circumspect in their assessment of the sufficiency of probable cause when asked for advice before a warrant application is presented.

Fourth Amendment Conclusion

It may be persuasively argued that the exclusionary rule serves purposes beyond influencing the behavior of individual officers and officials. See, e.g., United States v. Leon, 468 U.S. 897, 975-80, 104 S.Ct. 3430, 3453-56, 82 L.Ed.2d 677 (1984) (Stevens, J. dissenting) (noting justifications for exclusionary rule not tempered with “good faith” exception as also including assurance of some remedy for violation of constitutional rights and as placing judiciary beyond the “dirty business” of using the fruits of unlawful searches to secure convictions). But insofar as its purpose is to influence behavior, the rule can serve to promote discipline, thoroughness, and care on the part of all actors in the process — police who secure warrants, prosecutors who aid in that process, magistrates who issue warrants, and police who execute warrants. Any exception to the rule which focuses on the rule’s impact on only one of those groups, officers who carry out searches, is open to legitimate criticism.

As and when the appellate courts of this state are squarely confronted with the question of whether the exclusionary rule existing by virtue of Article I, Section 14, of the Utah Constitution is subject to a Leon-type “good faith” exception, a healthy skepticism should permeate the courts’ consideration in view of the troublesome analysis in Leon.