On writ of certiorari to the Supreme Court of Illinois.
This case is restored to the calendar for reargument. In
addition to the question presented in the petition for certiorari
and previously argued here, the parties are requested to address
the question whether the rule requiring the exclusion at a criminal
trial of evidence obtained in violation of the Fourth Amendment,
Mapp v. Ohio,
367
U.S. 643 (1961); Weeks v. United States,
232 U.S.
383, 34 S. Ct. 341 (1914), should to any extent be modified, so
as, for example, not to require the exclusion of evidence obtained
in the reasonable belief that the search and seizure at issue was
consistent with the Fourth Amendment.
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL
join, dissenting.
Earlier this year the Court decided not to allow the Illinois
Attorney General to argue the question it now asks the parties to
address. That decision was consistent with the Court's settled
practice of not permitting a party to advance a ground for reversal
that was not presented below. The reversal today of the Court's
earlier decision is not only a flagrant departure from its settled
practice, but also raises serious questions concerning the Court's
management of its certiorari jurisdiction . I am therefore unable
to join the Court's decision to order reargument of this case.
I
As a matter of ordinary procedure, the burdens of litigation are
minimized and the decisional process is expedited if a court is
consistent in its rulings as a case progresses. We set a poor
example for other judges when we suddenly reverse our prior rulings
in the same case.
Page 459 U.S.
1028 , 1029
On February 8, 1982, the State of Illinois filed a motion
seeking leave to amend or enlarge the question presented for review
in this case. The motion asked the Court to incorporate the
following question:
"Assuming, arguendo, that the
information used to obtain the search warrant did not satisfy
Aguilar v. Texas,
378
U.S. 108 [] (1964), should the evidence obtained under the
warrant nevertheless be admitted at trial because the police acted
in a reasonable good faith belief in the validity of the
warrant?"
On March 1, 1982, the Court unanimously denied that motion. On
October 13, 1982, the parties presented an hour of argument; they
respected our decision and did not attempt to argue the question of
good faith. Today, the Court asks the parties to reargue the case
in order to address the very question it would not allow the
parties to argue last month. This type of inconsistent
decisionmaking always imposes unnecessary costs on litigants and is
wasteful of the judiciary's most scarce resource-time.
II
As a matter of appellate practice, it is generally undesirable
to permit a party to seek reversal of a lower court's judgment on a
ground that the lower court had no opportunity to consider.
[
Footnote 1] It is especially
poor practice to do so when the basis for reversal involves a
factual issue on which neither party adduced any evidence. Those
considerations apply with added force when the judgment of the
highest court of a sovereign state is being reviewed. [
Footnote 2]
Page 459 U.S.
1028 , 1030
Each of these considerations applies to the additional question
on which the Court has ordered reargument. Neither party gave the
Circuit Court of DuPage County, the Appellate Court of Illinois,
Second District, nor the Supreme Court of Illinois an opportunity
to consider the question. Neither party offered any evidence
concerning the state of mind of the magistrate when he issued the
warrant, the state of mind of the officers who obtained the
warrant, nor the state of mind of the officers who executed the
warrant. In short, the new issue was not "fairly presented" to the
state courts. Cf. Picard v. Connor,
404 U.S. 270 (1971).
III
As a matter of power, the Court's action is subject to question.
That question is serious whether one assumes that the Illinois
courts decided the Fourth Amendment question correctly or
incorrectly.
On the one hand, if it is assumed that the Supreme Court of
Illinois correctly decided the only federal question that was
presented to it,3 this Court has a duty to affirm its judgment. See
New York ex rel. Cohn v. Graves,
300 U.S.
308, 317, 469
Page 459 U.S.
1028 , 1031
(1937). If the only federal question presented by a certiorari
petition is unworthy of review, or does not identify a legitimate
basis for reversal, this Court has no power to grant certiorari
simply because it would like to address some other federal
question. For neither Article III of the Constitution nor the
jurisdictional statutes enacted by Congress vest this Court with
any roving authority to decide federal questions that have not been
properly raised in adversary litigation.
On the other hand, if it is assumed that the Supreme Court of
Illinois has incorrectly decided the federal question that was
presented to it, this Court has a duty to reverse its judgment.
That duty could be performed by simply answering the question
decided below, without reaching the additional question on which
the Court orders reargument today. It is, of course, a settled
canon of our constitutional jurisprudence that we do not decide
constitutional questions unless it is necessary to do so to resolve
an actual case or controversy. See e.g., Minnick v. California
Dept. of Corrections,
452 U.S. 105, 122-127,
2220-23, 68 L. Ed. 2d 706 (1981).
Thus, however the Court resolves the merits of the federal
question that has already been argued, the action it takes today
sheds a distressing light on the Court's conception of the scope of
its powers. Accordingly, I respectfully dissent.
Footnotes
Footnote 1 Of course, there
is no impediment to presenting a new argument as an alternative
basis for affirming the decision below. E.g., Hankerson v. North
Carolina,
432 U.S.
233, 240 n. 6, 2344 n. 6d 306 (1977).
Footnote 2 Writing for the
Court in Cardinale v. Louisiana,
394 U.S. 437, Justice
WHITE made it clear that this view represents the Court's
traditional stance.
"The Court has consistently refused to decide federal
constitutional issues raised here for the first time on review of
state court decisions both before [Crowell v. Randell, 10 Pet. 368
[9 L. Ed. 458] (1836)], Miller v. Nicholls, 4 Wheat. 311, 315 [4 L.
Ed. 578] (1819), and since, e.g., Safeway Stores, Inc. v. Oklahoma
Retail Grocers Assn., Inc.,
360 U.S. 334, 342, n. 7
[, 1201 n. 7] (1959); State Farm Mutual Automobile Ins. Co. v.
Duel,
324 U.S.
154, 160-163 [, 576-77] ( 1945); McGoldrick v. Compagnie
General Transatlantique,
309 U.S. 430, 434-435 [,
672-73] (1940); Whitney v. California,
274 U.S.
357, 362-363 [, 643-44] (1927); Dewey v. Des Moines,
173 U.S.
193, 197-201 [, 380-81] (1899); Murdock v. City of Memphis, 20
Wall. 590 [22 L. Ed. 429] (1875).
...
"Questions not raised below are those on which the record is
very likely to be inadequate, since it certainly was not compiled
with those questions in mind." 394 U.S., at 438-439-63.
See also New York ex rel. Cohn v. Graves,
300 U.S.
308, 317, 469 (1937); Wilson v. Cook,
327 U.S. 474, 483-484,
667-68 (1946); Lear, Inc. v. Adkins,
395 U.S. 653, 677-682,
1914-17 (1969) (WHITE, J., concurring). See generally R. Stern
& E. Gressman, Supreme Court Practice 456-465 (5th ed.
1978).
Footnote 3 The Supreme Court
of Illinois held that the Fourth Amendment prohibits a magistrate
from issuing a search warrant on the basis of an affidavit such as
that filed by the police officer in this case.
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