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August 22, 1979


[ 443 U.S. Page 916]

Application for recall and stay of mandate of the Supreme Court of California, addressed to MR. JUSTICE BLACKMUN and referred to the Court, denied. MR. JUSTICE BLACKMUN would grant the application.

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting from denial of stay.

[ 443 U.S. Page 917]

     In the ordinary case, anything more than the most summary statement of the reasons of an individual Justice for dissenting from the disposition of an application for a stay by the full Court would be both a useless and wasteful consumption of the dissenter's time. I believe, though, that this is not the ordinary case, but the culmination of a sport of fox and hound which was begun by this Court's decision in Weeks v. United Page 917} States, 232 U.S. 383 (1914), 65 years ago. So many factors material to that decision, and to mapp v. Ohio, 367 U.S. 643 (1961), which applied it to the States, have occurred after the rendition of these decisions that I think a re-evaluation of the so-called "exclusionary rule" enunciated by Weeks is overdue. Because of double jeopardy considerations, I am not prepared to state flatly that this case would not be moot as a result of a verdict of acquittal by the time this Court comes to pass on the State's petition for certiorari, and I am therefore filing this opinion as a dissent from the denial of a stay of the judgment of the Supreme Court of California suppressing evidence, the granting of which could prevent any possibility of mootness. See Fare v. Michael C., 439 U.S. 1310 (1978) (REHNQUIST, J., in chambers).

The anomalous consequences of the exclusionary rule are readily apparent from an examination of the police conduct in this case. The officers who conducted the search were responding to a report of a robbery that had recently been committed. The robbery took place around 8:30 p.m., on December 19, 1975, at a Safeway Store in Fremont, Cal. It was committed in the presence of several witnesses by two individuals armed with handguns. One of the witnesses followed the two men, observed them get into a car, and trailed the car for several miles until he was able to identify it as a 1968 or 1969 Ford Fairlane and to write down the license number. The witness then went directly to the police station and reported what he had seen. At approximately 9 p.m., the police department broadcast a description of the getaway vehicle and its license number. Shortly thereafter, a Fremont police officer spotted a vehicle matching the description, called for backup units, and stopped the vehicle. The driver, respondent, was ordered out of the car, searched, and advised he was under arrest for robbery. He was the only person in the vehicle and fit the description of one of the suspects. The officers also searched the passenger compartment of the car,

[ 443 U.S. Page 918]

     but neither that search nor the search of respondent revealed any evidence of the crime or the whereabouts of the second robber. After an unavailing attempt to locate the key to the car's trunk, the officers had the car towed to the city corporation yard. Upon its arrival, the officers picked the lock to the trunk and discovered it contained a red tote bag. They opened the tote bag, which contained clothing similar to that described by witnesses to the robbery, three guns, and a roll of pennies in a wrapper from the bank used by Safeway.

When the officer who initially stopped the vehicle was asked why he did not obtain a warrant while "making the decision to search the car and the trunk," he stated: "Basically, I think, time. In other words, by searching without the search warrant, we would save a matter of hours." He was then asked why time was a factor at this stage, and responded: "Well, we were still looking for a second suspect." The trial court denied respondent's motion to suppress the evidence discovered in the tote bag. Respondent was convicted of two counts of first-degree robbery and was found to have been armed at the time of his arrest. The Supreme Court of California, however, reversed the conviction. It concluded that although a warrantless search of an automobile, if based on probable cause to believe that the auto contains contraband or evidence of a crime, is permissible when it takes place after the auto has been towed to a police station, Chambers v. Maroney, 399 U.S. 42, 52 (1970), a search of a container in the automobile is invalid unless the officers first obtain a warrant.

 The foregoing discussion reveals that respondent was apprehended as a result of conscientious police work, and that the subsequent search of the trunk of his auto occurred in the course of an ongoing investigation, while the second suspect was still on the loose. The case is thus not one in which the officers lacked probable cause to arrest respondent and to search the trunk of his auto and the tote bag; it appears rather that "the criminal is to go free" solely because of a good-faith

[ 443 U.S. Page 919]

     error in judgment on the part of the arresting officers, who were not sufficiently prescient to realize that while it was constitutionally permissible for them to search the trunk of an automobile at the city corporation yard under the exigency exception to the warrant requirement, courts would later draw a distinction between searching the trunk and searching a tote bag in the trunk. This distinction would obtain even though it was equally likely that the tote bag contained the evidence they were looking for, and they had no reason, prior to opening the trunk, to anticipate that such evidence might be hidden from their view because it was in the tote bag.

I do not claim to be an expert in comparative law, but I feel morally certain that the United States is the only nation in the world in which the most relevant, most competent evidence as to the guilt or innocence of the accused is mechanically excluded because of the manner in which it may have been obtained. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 415 (1971) (BURGER, C.J., dissenting); see also Stone v. Powell, 428 U.S. 465, 499 (1976) (BURGER, C.J., concurring). This unique jurisprudential rule, as discussed in Stone v. Powell, imposes tremendous costs on the judicial process at criminal trials and on direct review:

"The costs of applying the exclusionary rule even at trial and on direct review are well known: the focus of the trial, and the attention of the participants therein, are diverted from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding. Moreover, the physical evidence sought to be excluded is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant. As Mr. Justice Black emphasized in his dissent in Kaufman :

"'A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional ...

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