On petition for writ of certiorari to the Supreme Court of
Mississippi. The petition for writ of certiorari is denied.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
It is well recognized that the Fourth Amendment "imposes
substantive standards for searches and seizures; but with them one
of the important safeguards it establishes is a procedure; and
[that] central to this procedure is an independent control over the
actions of officers effecting searches of private premises." Abel
v. United States,
362
U.S. 217, 251- 252, 703-704 (1960) (BRENNAN, J., dissenting ).
Thus this Court has long insisted that the determination whether
probable cause exists to support a search warrant be made by "a
neutral and detached magistrate instead of being judged by the
officer engaged in the often competitive enterprise of ferreting
out crime." Johnson v. United States,
333 U.S.
10, 14, 369 (1948) ( emphasis added). See also United States v.
Leon,
468 U.S.
897, 913-914, 3416-3417 (1984); Illinois v. Gates,
462 U.S.
213, 240, 2333 (1983); Lo-Ji Sales, Inc. v. New York,
442 U.S. 319, 326-327,
2324 (1979); United States v. Chadwick,
433 U.S.
1, 9, 2482 (1977); Shadwick v. City of Tampa,
407 U.S.
345, 350, 92 S. Ct. 2119, 2122 (1972); Coolidge v. New
Hampshire,
403 U.S.
443, 450, 2029 (1971); Aguilar v. Texas,
378 U.S.
108, 111, 1512 (1964); Giordenello v. United States,
357 U.S.
480, 486, 1250, 2 L. Ed. 2d 1503 (1958); United States v.
Lefkowitz,
285 U.S.
452, 464, 423 (1932). Just two Terms ago in United States v.
Leon, supra, the Court vigorously reaffirmed that the
probable-cause decision must be made by a neutral and detached
magistrate, stating that " the courts must . . . insist that the
magistrate purport to 'perform his " neutral and detached" function
and not serve merely as a rubber stamp for the police.' " Id., 468
U.S., at 914 (quoting Aguilar v. Texas, supra, 378 U.S., at 111).
And, as we explained in Shadwick v. City of Tampa, supra, 407 U.S.,
at 350, "[w]hatever else neutrality and detach-
Page 474 U.S.
984 , 985
ment might entail, it is clear that they require severance and
disengagement from activities of law enforcement." Today the Court
refuses to act on its convictions, denying certiorari in a case in
which the judge who issued the search warrant indisputably
"rubber-stamped" the police request. In this case, a large quantity
of marijuana was discovered in the trunk of petitioner's automobile
when it was searched pursuant to a warrant. Petitioner challenged
the validity of the warrant at a pretrial suppression hearing,
arguing that it was not supported by probable cause. The judge who
granted the warrant testified at the hearing. With remarkable
candor, he explained that he had relied principally on the fact
that police officers had asked for the warrant, rather than on the
underlying facts and circumstances set forth in the affidavit. The
pertinent portion of the judge's testimony on cross-examination
follows: "Q. You would have issued [the search warrant even if a
certain statement in the affidavit either had not been included or
the judge had known it not to be true]? "A. Certainly, because the
officer-you've got to have enough faith and confidence in the
officer that's asking for the search warrant to warrant it for him
and then if it proves it's invalid, well, or whatever, there's
nothing there what they're hunting-that's not the first time I ever
made a Search Warrant. "Q. So, you were relying on the fact that
these officers were of the law- "A. Of the law sworn- "Q. -and they
were in there-they were sworn officers- "A. That's right. "Q. -they
were in there telling you that this fellow was a drug dealer and
they wanted to search his car- "A. That's exactly right. "Q. -and
you relied on that rather than any particulars of this thing? "A.
That's right. * * * * * "Q. So, you really issued the Search
Warrant because you were asked for it by two sworn officers of law
rather than any particular thing they told you? "A. Well, I based
my decision not primarily on that, but because-if Sheriff Jones
walked in there and said, 'Judge,
Page 474 U.S.
984 , 986
I need a Search Warrant to search John Doe for Marijuana,' drugs
or whatever-liquor or whatever it might be, I'm going to go on his
word because he's-I take him to be an honest law enforcement
officer and he needs help to get in to search these places and it's
my duty to help him to fulfill that.
"Q. Okay. And it's really based on
the request other than any particular thing he might tell
you?
"A. That's right. That's right.
"Q. And that's what the situation was
here?
"A. Well, if I didn't feel like it
was warranted, now, then, naturally, I wouldn't issue it.
"Q. Okay, but . . . the swaying fact
was that this was two sworn officers of the law rather than
anything they told you in these Underlying Facts and
Circumstances?
"A. That's right. They were officers
of the Narcotics."
The trial court rejected petitioner's arguments and admitted the
evidence. The Mississippi Supreme Court affirmed petitioner's
conviction, holding both that the warrant was supported by probable
cause and that the conduct of the judge who signed the warrant,
although not a model of judicial deportment, had satisfied the
constitutional requirements of detachment and neutrality.
467 So. 2d
940 (1985).
Respondent argues before this Court that even if the judge
failed to evaluate the request for the warrant in a neutral and
detached fashion, the warrant was nonetheless valid because it was,
in fact, supported by probable cause.* This attempt to evade review
of the judge's lack of independence should not succeed. In
Page 474 U.S.
984 , 987
Coolidge v. New Hampshire, 403 U.S., at 450-451-2030, we firmly
rejected the argument that "the existence of probable cause renders
noncompliance with the warrant procedure an irrelevance." Indeed,
in Coolidge the Court declared that because the warrant was not
issued by " the neutral and detached magistrate required by the
Constitution, the search stands on no firmer ground than if there
had been no warrant at all ." Id., at 453.
As the transcript of the suppression hearing clearly
demonstrates, the judge who issued the warrant to search
petitioner's automobile, although formally separate from law
enforcement officials, viewed himself as a facilitator of police
investigations and simply acquiesced in police requests, without
giving serious and independent consideration to the facts set forth
in supporting affidavits. The Court's failure to grant certiorari
in this case suggests that our admonitions that probable cause must
be determined by a neutral and detached magistrate are hollow
pronouncements.
I find the Court's refusal to take this case particularly
disturbing in light of the good faith exception to the
Fourth-Amendment exclusionary rule created by United States v.
Leon,
468 U.S.
897, 82 L. Ed. 2d 677 (1984). In Leon, the Court held that
physical evidence seized by police officers reasonably relying upon
a warrant issued by a detached and neutral magistrate is admissible
in the prosecution's case in chief, even though a reviewing court
has subsequently determined that the warrant was defective or that
the officers failed to demonstrate when applying for the warrant
that there was probable cause to conduct the search. The Court
justified its holding to a large extent on the special protective
role that a neutral and detached magistrate plays in safeguarding
the Fourth Amendment right against unreasonable searches and
seizures, id., at 913-917-3419. In fact, the Court indicated that
suppression of evidence is appropriate where "the magistrate [has]
abandoned his detached and neutral role," id., at 926. In my
dissent, I warned that creation of a good-faith exception
implicitly tells magistrates that they need not take much care in
reviewing warrant applications, since their mistakes will have
virtually no consequence, id., at 956. Today the Court tacitly
informs magistrates that not only need they not worry about
mistakes, they also need no longer be neutral and detached in their
review of supporting affidavits. The combined message of Leon and
the Court's refusal to grant certiorari in this case is that
the
Page 474 U.S.
984 , 988
police may rely on the magistrates and the magistrates may rely
on the police. On whom may citizens rely to protect their Fourth
Amendment rights?
I would grant certiorari and summarily reverse, or at least set
the case for oral argument.
Footnotes
[
Footnote *] Relying on Carroll v.
United States,
267
U.S. 132 (1925), Chambers v. Maroney,
399 U.S. 42d 419 (1970),
and Texas v. White,
423 U.S. 67 (1975),
respondent also argues that the instant case involves an automobile
search that is supported by probable cause and thus no search
warrant was required. Apart from my view that automobile searches
presenting no exigent circumstances should be fully subject to the
Fourth Amendment's warrant requirement, see, e.g., United States v.
Johns,
469 U.S.
478, 488-489, 887-888 (1985) (BRENNAN, J ., joined by MARSHALL,
J., dissenting); United States v. Ross,
456 U.S. 798, 836-837,
2178-2179 (1982) (MARSHALL, J., joined by BRENNAN, J., dissenting);
South Dakota v. Opperman,
428 U.S.
364, 384, 3104 (1976) (MARSHALL, J., joined by BRENNAN and
Stewart, JJ., dissenting), respondent may not be heard to make this
argument since it appears that it was not advanced below, see,
e.g., Illinois v. Gates,
462 U.S. 213, 221-224,
2323-2324 (1983).
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