DENNIS L. TAXACHER, PETITIONER V. UNITED STATES OF AMERICA No. 90-841 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-12a) is reported at 902 F.2d 867. The opinion of the district court (Pet. App. 13a-25a) is unreported. JURISDICTION The judgment of the court of appeals was entered on June 4, 1990. A petition for rehearing was denied on July 31, 1990. On October 17, 1990, Justice Kennedy extended the time for filing a petition for a writ of certiorari to and including November 28, 1990. The petition for a writ of certiorari was filed on November 27, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(l). QUESTIONS PRESENTED 1. When applying the good faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897 (1984), should the reviewing court use a "reasonable officer" standard, as opposed to a "reasonable jurist" standard, in evaluating the law enforcement officer's reliance on a search warrant that was later found to be invalid. 2. Whether the district court correctly concluded that the good faith exception to the exclusionary rule applied in the circumstances presented. STATEMENT After pleading guilty in the United States District Court for the Southern District of Georgia, petitioner was convicted on one count of traveling in interstate commerce to distribute the proceeds of an unlawful activity, in violation of 18 U.S.C. 1952(a)(1). /1/ He was sentenced to a term of 41 months' imprisonment, to be followed by a three-year term of supervised release, and a $1,000 fine. The court of appeals affirmed. 1. The evidence adduced at the pretrial suppression hearing showed that on the morning of November 7, 1987, Georgia State Patrol Trooper Barry Riner stopped petitioner for speeding while petitioner was driving south on Interstate 95 in McIntosh County, Georgia. Trooper Riner asked petitioner to step out of his car and to produce his driver's license and vehicle registration. Petitioner handed Riner a Pennsylvania driver's license and a car rental agreement. Riner noticed that, under the terms of the rental agreement, the vehicle was three weeks past due for return. Petitioner stated that he had received an extension of the rental period and showed Riner a receipt noting that petitioner had made a $500 deposit on the car five days earlier. Pet. App. 2a, 14a. As the district court noted, "(t)he receipt did not show the purpose of the deposit nor state that the rental contract had been extended." Id. at 14a. Trooper Riner became suspicious and asked petitioner about the origin, destination, and purpose of his travel. Petitioner became increasingly nervous and gave inconsistent answers to the officer's questions. Finally, petitioner explained that he had flown from Pennsylvania to Fort Lauderdale, Florida, had rented the car, and then had driven to his parents' winter home in Fort Pierce, Florida. After visiting his parents, petitioner stated, he had driven to Pennsylvania in order to winterize their home. Petitioner told the officer that he was traveling back to Fort Lauderdale to return the rental car. Pet. App. 2a-3a, 14a-15a. Trooper Riner asked petitioner for his permission to search the car. After some hesitation, petitioner consented, but he refused to sign a written consent-to-search form. Petitioner thereafter tried to direct Trooper Riner toward the passenger area of the car. After looking into the passenger area, however, Riner asked petitioner to open the trunk. As petitioner opened the trunk, he positioned himself so that Riner could see, but not touch, the contents of the trunk. Riner saw a garment bag, a satchel, and two plastic bags. When Trooper Riner asked petitioner what was inside the satchel, petitioner became visibly pale and responded, "personal items." Pet. App. 15a. When Riner then asked if he could open the satchel, petitioner slammed the trunk and said that he would not permit any further search without a search warrant. Id. at 3a, 15a. Trooper Riner then directed petitioner to follow him to the county sheriff's office in order to post a cash bond for the speeding violation. Riner radioed ahead and arranged for a magistrate to meet him at the sheriff's office so that he could apply for a search warrant. In addition, through a computerized driver's license check, Riner learned that petitioner's Virginia driver's license had been suspended and had not been reinstated. As a result, when petitioner arrived at the sheriff's office, he was detained on charges of speeding and driving with a suspended license. Pet. App. 3a, 15a. Once at the sheriff's office, Trooper Riner, who had never before prepared a search warrant application, telephoned the county district attorney for instructions. After doing so, Trooper Riner prepared an application seeking authorization to search "all contents and baggage" of petitioner's car for "marijuana, cocaine, and any other (controlled substances) * * * (a)nd, any money that may be used or may have been used in connection with drugs." Pet. App. 16a. In his accompanying affidavit, Trooper Riner stated: Vehicle stopped for speeding. During conversation, subject offered several inconsistent stories. Officer asked for consent to search. Verbal consent was given, but written consent was denied. Subject very nervous. Subject opened trunk of vehicle and state (sic) "see, there is nothing there." Then attempted to close trunk. Officer asked about luggage in trunk, and subject became very nervous and refused further search. The inconsistent stories are that subject stated that he was en route to Ft. Pierce to visit his parents. But the vehicle was rented from Ft. Lauderdale, which is south of Ft. Pierce, Fla. Also upon further conversation, subject stated that he had driven from Ft. Pierce, Fla. to Pa. and then was enroute back to Ft. Pierce. Rental agreement on the vehicle indicates that vehicle should have been returned on 10/17/87. Id. at 16a-17a. Trooper Riner presented the search warrant application to the county magistrate and, in addition, testified before the magistrate to "enhance" the allegations contained in the affidavit. Jan. 15, 1988, Tr. 35, 70-71. The magistrate then briefly departed the sheriff's office and "went over to the courthouse to the law library." Id. at 36. Thereafter, based on Trooper Riner's representations, the magistrate found probable cause and issued a warrant authorizing a search of petitioner's car. During the search, Trooper Riner found $186,626 in cash inside the satchel. Petitioner was later arrested. After being advised of his Miranda rights, petitioner voluntarily spoke with the police and made certain incriminating statements. Pet. App. 4a, 17a-18a. 2. After a hearing, the district court denied petitioner's motion to suppress the seized cash and incriminating statements. Pet. App. 13a-25a. The court first found that Trooper Riner "acted within his authority in stopping (petitioner) for speeding and taking (him) to the sheriff's office." Id. at 18a. The court next determined, however, that Riner "did not have sufficient probable cause to search or detain (petitioner's) vehicle." Id. at 19a. On the record presented, the court therefore concluded that "the magistrate who issued the warrant did not have a 'substantial basis for . . . conclud(ing) that probable cause existed.'" Id. at 20a (brackets in original). Nonetheless, the court held that "the facts of this case fall squarely within the exception to the exclusionary rule" set forth in United States v. Leon, 468 U.S. 897 (1984). Pet. App. 22a. Although "the facts recited in the trooper's affidavit fail to meet the legal standard of probable cause," the court was "unable to find that the warrant was 'so lacking in indicia of probable cause as to render official belief in its existence unreasonable.'" Id. at 24a. The court also determined that Trooper Riner had been neither "'dishonest' (n)or 'reckless' in preparing his affidavit." Ibid. (quoting Leon, 468 U.S. at 926). Instead, the court concluded that "(t)he trooper's actions demonstrate that he made every effort to carry out his duties properly and expeditiously within the confines of the law." Pet. App. 24a. /2/ 3. The court of appeals affirmed. Pet. App. 1a-12a. In the court of appeals, petitioner principally contended (Pet. C.A. Br. 13-46) that, when applying the good faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897 (1984), the reviewing court must use a "reasonable jurist" standard in evaluating the law enforcement officer's reliance on a search warrant that was later found to be invalid. The court of appeals rejected petitioner's argument that an officer's reliance on a warrant would be objectively reasonable "only if the affidavit presents enough evidence to create disagreement among reasonable jurists as to the existence of probable cause." Pet. App. 7a. /3/ In the court's view, since "(t)he focus in Leon is on the officer," the "proper test is whether the officer acted in objective good faith under all the circumstances." Id. at 8a. As the court explained, "because a reasonable jurist has more legal training than a reasonably well-trained officer, what would be reasonable for a well-trained officer is not necessarily the same as what would be reasonable for a jurist." Id. at 9a. Thus, although a disagreement among reasonable jurists would be relevant in showing the reasonableness of an officer's good-faith reliance on a search warrant, the existence of such a disagreement does not, in itself, constitute an independent threshold test for the application of Leon. Id. at 8a-9a & n.4. Since the purpose of the exclusionary rule is to deter unlawful police conduct, the court of appeals stated that evidence seized under a judicially authorized warrant should be suppressed only when "a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Pet. App. 8a (quoting Leon, 468 U.S. at 922 n.23). Under that objective standard, the court concluded, Trooper Riner "acted in objective good faith, and * * * the warrant was not so lacking in indicia of probable cause as to render official belief in the existence of probable cause entirely unreasonable." Pet. App. 10a. /4/ ARGUMENT 1. Petitioner contends (Pet. 8-24) that, when applying the good faith exception to the exclusionary rule under Leon, the reviewing court must use a "reasonable jurist" standard in evaluating the law enforcement officer's reliance on a search warrant that was later found to be invalid. This Court's decision in Leon forecloses that argument, and the courts below correctly rejected petitioner's invitation to replace the governing "reasonable officer" standard for purposes of applying the good faith exception to the exclusionary rule. In Leon, this Court held that the exclusionary rule "cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity." 468 U.S. at 919. That is "particularly true," the Court noted, "when an officer acting with objective good faith has obtained a search warrant from a judge or a magistrate and acted within its scope." Id. at 920. The Court reasoned that, in such circumstances, the deterrent value of the exclusionary rule is vitiated by the fact that "an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient." Id. at 921. Thus, "once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law." Ibid. (quoting Stone v. Powell, 428 U.S. 465, 498 (1976) (Burger, C.J., concurring)). In substantially restricting to the "unusual case()" the application of the exclusionary rule when evidence has been obtained under a warrant, Leon, 468 U.S. at 918, the Court focused the appropriate inquiry on the reasonableness of the officer's conduct, not on the reasonableness of the judicial officer who issued the warrant. The Court made plain that "(p)enalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." Id. at 921. Accordingly, the Court concluded that the appropriate "good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Id. at 922 n.23; see id. at 923, 926. Under this standard, officers are charged with "hav(ing) a reasonable knowledge of what the law prohibits." Leon, 468 U.S. at 920 n.20; see Illinois v. Krull, 480 U.S. 340, 355 (1987) (good-faith exception inapplicable if "a reasonable officer should have known" that the search was unconstitutional). /5/ But officers are not charged with having the same grasp of legal principles that would reasonably be expected of a jurist. Based on the "sound presumption that the magistrate is more qualified than the police officer to make a probable cause determination," this Court has recognized the distinction between "the range of professional competence expected of an officer" and that expected of a jurist. Malley v. Briggs, 475 U.S. 335, 346 n.9 (1986). Accordingly, in applying the goodfaith exception to the exclusionary rule, the court of appeals correctly recognized that "what would be reasonable for a well-trained officer is not necessarily the same as what would be reasonable for a jurist." Pet. App. 9a; see also United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985) ("the knowledge and understanding of law enforcement officers and their appreciation for constitutional intricacies are not to be judged by the standards applicable to lawyers"). Following Leon, the courts of appeals -- like the court below -- have confined their good-faith inquiries to assessing the reasonableness of a well-trained officer's reliance on a judicially issued, albeit invalid, warrant. See, e.g., United States v. Malin, 908 F.2d 163, 166-167 (7th Cir.), cert. denied, 111 S. Ct. 534 (1990); United States v. Bowling, 900 F.2d 926, 931 (6th Cir.), cert. denied, 111 S. Ct. 109 (1990); United States v. Corral-Corral, 899 F.2d 927, 932 (10th Cir. 1990); United States v. American Investors of Pittsburgh, Inc., 879 F.2d 1087, 1107 (3d Cir.), cert. denied, 110 S. Ct. 368 (1989); United States v. Roberts, 852 F.2d 671, 675 (2d Cir.), cert. denied, 488 U.S. 993 (1988); United States v. Diaz, 841 F.2d 1, 5 (1st Cir. 1988); United States v. Tate, 795 F.2d 1487, 1490-1491 (9th Cir. 1986); United States v. Maggitt, 778 F.2d 1029, 1035 (5th Cir. 1985), cert. denied, 476 U.S. 1184 (1986); United States v. Sager, 743 F.2d 1261, 1265 (8th Cir. 1984), cert. denied, 469 U.S. 1217 (1985). /6/ As the court of appeals pointed out (see Pet. App. 8a-9a & n.4), the existence of a disagreement among reasonable jurists is relevant in determining the reasonableness of an officer's good-faith reliance on a search warrant later found to be invalid. Nonetheless, no court other than the panel in United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988) (see note 6, supra), has used the "reasonable jurist" standard as an independent threshold test for applying the good faith exception to the exclusionary rule. As this Court made clear in Leon, the existence of a "disagreement among thoughtful and competent judges" regarding the validity of a warrant provides compelling evidence that an "officer('s) reliance on the magistrate's determination of probable cause was objectively reasonable." 468 U.S. at 926. /7/ But the converse is not true: the absence of a judicial disagreement concerning the validity of a previously issued warrant does not eliminate the need for reviewing courts to determine "whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, 468 U.S. at 922 n.23. Because the court of appeals undertook that inquiry here, it is apparent that the court applied the correct legal standard in evaluating the government's claim that the good faith exception to the exclusionary rule called for denying petitioner's motion to suppress evidence. 2. Petitioner also contends (Pet. 24-30) that the courts below erred in concluding that the good faith exception to the exclusionary rule applied in the circumstances presented. This Court has recognized that a law enforcement officer is not "required to disbelieve a judge who has just advised him, by word and by action, that the warrant he possesses authorizes him to conduct the search he has requested." Massachusetts v. Sheppard, 468 U.S. 981, 989-990 (1984). As a result, "(i)n the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause." Leon, 468 U.S. at 926. No such circumstances existed here. First, the record shows that Trooper Riner "acted neither recklessly nor dishonestly in submitting his affidavit." Pet. App. 7a; see id. at 24a. Even though Trooper Riner believed that he had justification to conduct an immediate, warrantless search of petitioner's car, the officer stayed his hand until he had received judicial authorization for a search. See United States v. Leon, 468 U.S. at 922 ("a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search" (internal quotation marks and citation omitted)). While preparing his affidavit to support the application for a search warrant, Trooper Riner consulted with the district attorney because he "wanted it to be done correctly." Jan. 15, 1988, Tr. 73; see United States v. Michaelian, 803 F.2d 1042, 1047 (9th Cir. 1986) (consultation with prosecuting attorney is evidence of reasonable reliance); United States v. Fama, 758 F.2d 834, 837 (2d Cir. 1985) (same). Moreover, the circumstances forced Riner's affidavit to be "hurriedly prepared * * * in the midst of a rapidly unfolding investigation." United States v. Corral-Corral, 889 F.2d at 935. For that reason, Riner's truncated investigation regarding petitioner's travel itinerary and the rental status of the car, together with his incomplete affidavit, do not undermine the lower courts' determinations that Riner's conduct was above board. Second, Trooper Riner did not submit a "bare bones" affidavit that was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." United States v. Leon, 468 U.S. at 923 & n.24. As the court of appeals summarized the record: Officer Riner was suspicious because of the inconsistent and implausible explanations given by (petitioner) regarding his itinerary. He was suspicious as a result of (petitioner's) excessive nervousness. That nervousness increased dramatically when the officer focused attention on the satchel and asked (petitioner) what the satchel contained and if Riner could examine the contents of the satchel. Officer Riner's suspicions were aroused by the fact that (petitioner) nearly closed the trunk of the vehicle on the officer's head, and by the unusual circumstance that (petitioner), who had previously given his oral consent to search, precipitously revoked that consent and slammed the trunk down when the officer focused attention on the satchel and asked permission to search that particular object. Pet. App. 10a-11a. Far from being a "bare bones" effort, Trooper Riner's affidavit contained a substantial showing of suspicious conduct on petitioner's part. That kind of showing -- when accorded the imprimatur of a warrant issued by the reviewing magistrate -- is sufficient to invoke the exception to the exclusionary rule sanctioned by this Court in Leon. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General ROBERT J. ERICKSON Attorney FEBRUARY 1991 /1/ Petitioner pleaded guilty under the terms of a plea agreement with the government. In exchange for his plea, the government agreed to move to dismiss the two remaining charges at the time of sentencing, i.e., one count of money laundering, in violation of 18 U.S.C. 1956, and one count of traveling in interstate commerce to facilitate the possession and distribution of controlled substances, in violation of 18 U.S.C. 1952(a)(3). /2/ The court also denied petitioner's motion to suppress the statements he gave to the police. The court found that petitioner's "knowing and voluntary waiver (of his Miranda rights) is sufficient to purge any possible taint that may have arisen from his detention." Pet. App. 24a. Petitioner sought no further review of that ruling, based on his understanding with the government that if the district court's order with respect to the search were reversed on appeal, the statements would become inadmissible. See Pet. C.A. Br. 7 n.1; Jan. 25, 1988, Tr. 5 (change of plea hearing). /3/ The government did not contest the district court's conclusion that there was not probable cause to search petitioner's car. As a result, the court of appeals "assume(d) that the search warrant was issued and executed in violation of the Fourth Amendment." Pet. App. 5a. /4/ Petitioner also challenged the district court's failure to decrease his base offense level under the Sentencing Guidelines. Pet. C.A. Br. 46-54. The court of appeals rejected that challenge, Pet. App. 11a-12a, and petitioner has not sought further review of that aspect of the court of appeals' judgment. /5/ Petitioner asserts (Pet. 14-15) that the courts of appeals are at odds over the degree of legal knowledge that a reasonably well-trained officer must possess. See, e.g., United States v. Malin, 908 F.2d 163, 166-167 (7th Cir.) (officer needs to be aware of general rules controlling probable cause determinations); cert. denied, 111 S. Ct. 534 (1990) United States v. Hale, 784 F.2d 1465, 1470 (9th Cir.) (officer needs to be aware of well-settled legal principles), cert. denied, 479 U.S. 829 (1986); United States v. Savoca, 761 F.2d 292, 297 (6th Cir. 1985) (officer needs to have "certain minimum level of knowledge of the law's requirements"). In our view, any differences among these formulations are purely semantic. Each encompasses Leon's essential requirement that officers "have a reasonable knowledge of what the law prohibits." 468 U.S. at 920 n.20. /6/ Petitioner contends (Pet. 20-24) that the court of appeals' decision conflicts with United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988). In Hove, a panel of the Ninth Circuit did apply a "reasonable jurist" standard. That decision, however, disregarded controlling circuit precedent that, as in Leon, focused the appropriate inquiry on the justifiable reliance of a reasonably well-trained officer on a judicially issued warrant. See United States v. Tate, 795 F.2d 1487, 1490-1491 (9th Cir. 1986); United States v. Hale, 784 F.2d 1465, 1470 (9th Cir.), cert. denied, 479 U.S. 829 (1986). Later Ninth Circuit decisions have neither followed Hove nor adopted its "reasonable jurist" approach. See, e.g., United States v. Holzman, 871 F.2d 1496, 1511-1512 n.4 (9th Cir. 1989); United States v. McLaughlin, 851 F.2d 283, 284-285 (9th Cir. 1988). Accordingly, since Hove is not the law in the Ninth Circuit, the apparent conflict between Hove and the decision below does not warrant this Court's review. To the extent Hove creates an intra-circuit dispute, that dispute merits no further review here. Wisniewski v. United States, 353 U.S. 901, 902 (1957). /7/ Accord United States v. Martin, 833 F.2d 752, 756 (8th Cir. 1987), cert. denied, 110 S. Ct. 1793 (1990); United States v. Tate, 795 F.2d at 1490-1491 & n.5; United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985); United States v. Sager, 743 F.2d at 1266.