author: Justice Stevens Justice Brennan’s Justice Brennan,

text:
    No. 80-1910.
    Vasquez v. United States.
   C. A. 2d Cir. Certiorari denied.

Opinion of

Justice Stevens

respecting the denial of the petition for writ of certiorari.

Practical considerations preclude the Court from explaining its reasons for denying petitions for certiorari. See Maryland v. Baltimore Radio Show, Inc., 338 U. S. 912 (opinion of Frankfurter, J., respecting the denial of the petition for writ of certiorari). Opinions dissenting from the denial of certiorari are answered so rarely that they may sometimes create an unwarranted impression that the Court is not administering its certiorari docket in a responsible way. Because I was concerned that Justice Rehnquist’s opinion in Downs v. Jacobs, ante, p. 915, might create such an impression, I thought it appropriate to write in response. A similar concern prompts me to write in this case.

Justice Brennan’s

dissenting opinion correctly points out that there are substantial arguments favoring a grant of certiorari. There are, however, at least three countervailing considerations militating in favor of a denial of certiorari that do not clearly emerge from a reading of the dissenting opinion.

First, there is no allegation in the petition for certiorari that there is a conflict between the decision of the Court of Appeals in this case and any other Federal Court of Appeals decision. Often the law develops in a more satisfactory fashion if this Court withholds review of novel issues until differing views have been expressed by other federal courts.

Second, it is not clear that petitioner has standing to object to the seizure of evidence in this case. At issue is the legality of a warrantless search of the fourth floor apartment at 633 Grand Street in Brooklyn, N. Y. The landlord at 633 Grand testified both at the suppression hearing and at trial that a man named Jorge Osorio, and not petitioner, had rented and lived in the fourth-floor apartment. Petitioner himself introduced into evidence two utility bills addressed to Jorge Osorio at 633 Grand Street. Moreover, petitioner challenged on appeal the sufficiency of the evidence against him on the grounds that it had not been shown that he was the renter of the apartment, or that he was a knowing participant in a conspiracy.

Third, Judge Kearse’s thorough opinion for the Court of Appeals, which occupies 55 printed pages of the appendix to the certiorari petition, demonstrates that the decision of the court was based on the totality of the specific factual circumstances of this case. It is often appropriate to decline to review a decision that turns on details of the evidence that are not likely to be duplicated in other cases. Unfortunately, to assess fairly the import of the decision of the Court of Appeals, one must review at some length the detailed facts underlying that decision.

The search at issue arose out of a police surveillance at 633 Grand Street on the evening of November 29, 1979. During the early hours of the evening, police officers arrested three sets of individuals as a result of that surveillance, each of which was in possession of a large quantity of cocaine. Amparo Medina left the building at 633 Grand carrying a large handbag, eluded the police, and returned home; police later arrested Medina and her husband Fernando after Fernando left the Medina home and officers found one pound of cocaine in his car. Clara and Hernando Mesa next exited 633 Grand; police arrested the Mesas after finding one-half pound of cocaine in their car. Within a short period of time, Carlos Sanchez left 633 Grand with a shopping bag; police arrested Sanchez after finding a pound of cocaine in the bag. The police made each of these arrests outside of the view of individuals remaining at 633 Grand.

After arresting Sanchez, the police observed three men, later identified as Jaramillo, Parra, and Uribe, leave 633 Grand. The officers stopped the three men, and led them around the corner and out of sight of anyone remaining inside. Although it was a cold night, Jaramillo had come outside wearing only a shirt, pants, and slippers with no socks; Jaramillo also did not carry any keys. The officers asked Jaramillo and Parra what apartment they had been in. The men replied that they had been visiting a woman in the second-floor apartment, and Jaramillo agreed to accompany the officers to that apartment. While Jaramillo and the officers were en route to the apartment, petitioner and Essau Correa exited 633 Grand and were detained by the police.

Jaramillo led the officers to the second-floor apartment, and Dora Wright, the landlord of the building, opened the door. Several officers, with guns drawn, immediately entered and fanned out through the apartment, checking each room for other persons. Jaramillo asked Wright in Spanish to tell the police that he had been with her earlier, but she replied that this was not so. Instead, Wright stated that throughout the day Jaramillo and others had been in and out of the fourth-floor apartment. As the officers spread through the apartment to assure themselves that it was not the scene of the narcotics operation, Dora Wright, her mother, and her baby all began to scream. By all accounts, the scene was tumultuous, and the three were still screaming 10-15 minutes later.

At this point, the officers decided to enter the fourth-floor apartment. The officers testified that they feared that additional persons might be in the apartment who might be aware of the activities of the police and would destroy evidence. To avoid a planned forced entry, Wright gave the officers a key.

On entering each room of the fourth-floor apartment, the officers seized a series of items. From an open foyer closet, the officers seized white powdery substances wrapped in clear plastic bags, some of which were inside an open plastic garbage bag and others of which were in an open traveling bag. In the center bedroom they seized a number of documents from an open box. In the rear bedroom they found, exposed to open view, a pound of cocaine, a triple-beam scale, and a large piece of glass covered with cocaine residue. They also found,■ in an open box lying in a metal cabinet, 16 bottles of Mannitol, 2 strainers, assorted boxes of plastic bags, a set of weights, and a scale. An officer also seized a pistol that he found as he “absentmindedly reached between the mattress and the box spring” of a bed on which he was sitting.

The initial check of the apartment was completed in a few minutes. The officers remained, however, for an additional 16 hours.

In response to petitioner’s motion to suppress evidence seized from the apartment, the District Court ruled that only those items observed in plain view during the initial cursory inspection of the apartment were admissible. The court suppressed the items seized from the box inside the metal cabinet, the documents seized after the initial entry, and the gun found under the mattress. On appeal, the Court of Appeals upheld the admission into evidence of items seized during the initial cursory inspection of the premises.

In light of the suppression of certain evidence by the District Court, the only issue that is now presented is whether the police were entitled to enter the fourth-floor apartment without a warrant to make a cursory inspection of the premises. In considering the resolution of this issue by the Court of Appeals, it is illuminating to state in full the discussion and limited holding of the court:

“The circumstances at 633 Grand Street present a very close question. Siegel testified that the agents were concerned that people remaining in the apartment might destroy evidence there, and there was some basis for this. Jaramillo and Parra had tried to divert the officers’ attention from the fourth floor by telling them they had come from the second floor; and Wright revealed that Jaramillo’s conversation with her in Spanish, when the agents went to her second-floor apartment, asked her to confirm this misdirection. Such attempts at diversion suggested that the fourth floor apartment contained evidence, or other persons, or both. It is true that one officer who placed his ear to the door of that apartment heard no sounds from inside, but there was another basis for believing that one or more persons remained in the apartment. It was a cold night, and Jaramillo had come outside wearing only a shirt, pants, and slippers with no socks. He had no key with him, and it could be inferred that there was someone in whatever apartment he had come from — the fourth floor apartment according to Wright — to let him back in. It was therefore reasonable to infer that evidence could well be destroyed if the persons remaining there were alerted to the agents’ activities.
“By the time the agents determined that Jaramillo’s designation of the second floor was a red herring, there was ample cause to believe that any remaining occupant of the fourth floor would have been alerted. For most of the evening the agents had managed to effect their arrests and investigatory stops out of the line of sight of the apartment. The last stops, however, had been made in front of the building. Then, when Jaramillo’s claim that he had been on the second floor was being investigated, there was an extended commotion resulting from the involvement of the apparently unsuspecting Mrs. Wright and the entry of several agents into her apartment in the expectation, based on Jaramillo’s statement, that they were at the scene of the cocaine operation.
“We do not accept [petitioner’s] contention that a security check was improper because the duration of the commotion would have allowed the destruction of any evidence to be completed before the officers entered. We do not think the exigency abated because the second-floor tumult lasted 10-15 minutes. What is troublesome, however, is the fact that the agents went far beyond the bounds of the permissible security check. Although it took but a few minutes to determine that there were no other people in the apartment, they remained there for sixteen hours. They seized not only items that were in plain view, but also, obviously, items that were completely hidden from view. The district judge suppressed thirteen items that he determined were ‘the products of a thorough search of the premises.’ Had the district court inferred from these facts that the agents’ intention in entering the apartment was not to conduct a security check, we would be hard-pressed to hold such a finding clearly erroneous.
“In fact, however, the district court implicitly found that the officers entered with the intention to make a security check, and explicitly found that there were reasonable bases for their belief that additional evidence was present in the apartment and that there might be someone there who could destroy it. Since these explicit findings, which are not clearly erroneous, justified a security search, the items in plain view during the course of that search were properly seized.” 638 F. 2d 507, 531-532. (Emphasis in original.)

The Court of Appeals noted that a “very close question” was presented in this case. After carefully appraising the facts, the court concluded that the police were justified in executing a warrantless entry to make a cursory inspection of the premises to guarantee that evidence was not being destroyed. In declining to grant certiorari to review that appraisal of the facts, this Court does not in any way suggest that an individual’s home is not entitled to rigorous Fourth Amendment protection. Indeed, recent decisions of this Court, see, e. g., Payton v. New York, 445 U. S. 573; Steagald v. United States, 451 U. S. 204, as well as decisions of the Courts of Appeals, see, e. g., United States v. Rosselli, 506 F. 2d 627, 630 (CA7 1974); United States v. Rubin, 474 F. 2d 262, 268 (CA3 1973), prove just the opposite.

In my opinion, this Court has not abused its discretion in allowing the judgment of the Court of Appeals to stand.

Justice Brennan,

with whom Justice White and Justice Marshall join,

dissenting.

Unless supported by a warrant issued upon probable cause, entry into a home to conduct a search is 'per se unreasonable, “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 (1967). In this case the Court of Appeals purported to identify and apply a “security check” exception to the warrant requirement which, as I understand the opinion below, would allow warrantless entry into a home following an arrest outside, if the arresting officers possess a reasonable belief that third persons are inside and aware of the arrest, “so that they might destroy evidence.” 638 F. 2d 507, 531. The exception thus stated not only authorizes the police to enter a home without a warrant in circumstances far less compelling than we have recognized, but permits law officers, in determining the time and manner of executing an arrest, to contrive their own exigency and thereby avoid the necessity of procuring a warrant before entering the home. This case illustrates the potential danger of this exception to Fourth Amendment protection, and surely the Court ought not let the decision stand without plenary review.

r — l

The search at issue arose out of the investigation of a cocaine distribution ring by the New York Drug Enforcement Task Force. Officers of the Task Force followed a suspected member of the ring to a building in Brooklyn; a store occupied the first floor of the building, while the three floors above each contained one apartment. The officers took up surveillance outside the building. Lights were visible only on the fourth floor. In the course of the evening, the officers twice stopped persons leaving the building, discovered cocaine in their possession, and made arrests. Some time later they observed three men leaving the building, stopped them, brought them around the corner, and held them in custody. The officers asked what apartment they had been in” One of the detainees replied that they had been visiting a woman in the second-floor apartment, but would not give her name. Upon request, however, he agreed to accompany the officers to that apartment. As they approached the entrance, the officers saw petitioner exiting the building, recognized him as a known cocaine dealer, and placed him in custody with the others.

With the assistance of their detainee, the police persuaded the occupants of the second-floor apartment to open the door. The court below described the ensuing scene as “tumultuous,” as the officers, guns drawn, immediately entered and fanned out to search the apartment for cocaine amidst the screams of the landlady, her mother, and her baby. Ultimately recognizing that they had entered and searched the wrong apartment, the officers announced their intention to climb to the fourth-floor apartment and enter through the window from the fire escape, prompting the landlady to produce a key.

The officers found no one in the fourth-floor apartment, but they did discover several items of drug paraphernalia, as well as one pound of cocaine said to be in plain view in an open foyer closet. These items were admitted into evidence in the course of petitioner’s trial for conspiracy to distribute cocaine and possession of cocaine with intent to distribute. The District Court did suppress, however, a number of additional items discovered by the officers in the course of their 16-hour warrantless habitation of the premises, concluding that these items had been discovered in the course of a search which exceeded the permissible bounds of a security check.

The Court of Appeals affirmed, holding that the officers’ entry and cursory search of the apartment fulfilled the requirements of the security check exception as applied in that Circuit. The court found support for the officers’ belief that the fourth-floor apartment contained suspects and evidence in the fact that the police had initially been diverted away from that apartment by their detainees. Additional support for the presence of persons in the apartment was found in the fact that one of the detainees had come to the street, despite the coolness of the evening, wearing only a shirt, pants, and slippers, and without a key in his possession. The reasonable belief that if other persons were in the apartment, they knew of the arrest, rested on the location of the arrest and the commotion which resulted from the search of the second-floor apartment.

II

The Court of Appeals sought support for its recognition of an exception to the warrant requirement for a “‘security check’ or ‘protective sweep’ incident to a lawful arrest” in Chimel v. California, 395 U. S. 752 (1969). 638 F. 2d, at 530. In Chimel we held that police may not routinely search a residence as an incident to a lawful arrest on the premises. In order to ensure the safety of the arresting officer and to prevent the destruction of evidence, however, we recognized that police may, as an incident to the arrest, lawfully search the area within an arrestee’s immediate control. Building on this rationale, several courts have allowed officers engaged in an arrest in a dwelling, to conduct a “quick sweep” for other persons on the premises who might pose a danger to the police. But as the Court of Appeals itself recognized in this case, whatever the merit of such a sweep where the police are otherwise lawfully on the premises, “[different considerations come into play . . . when a defendant is arrested outside his residence and the government seeks to justify an entry into the home for a security check.” 638 F. 2d, at 531. Nevertheless, noting that other courts have permitted a sweep into the home in search of persons following an arrest outside, the Court of Appeals sustained the validity of the warrantless entry and initial search here based on nothing more than the officers’ “reasonable belief” that there were additional persons in the apartment who were aware of petitioner’s arrest.

Despite the currency of the doctrine in the lower courts, no decision of this Court supports the existence of a general “security check” exception to the warrant requirement. Quite to the contrary, even before Chimel we held that “a search ‘can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.’” Shipley v. California, 395 U. S. 818, 819 (1969) (per curiam), quoting Stoner v. California, 376 U. S. 483, 486 (1964). As we noted in Shipley, “the Constitution has never been construed by this Court to allow the police, in the absence of an emergency, to arrest a person outside his home and then take him inside for the purpose of conducting a warrantless search.” 395 U. S., at 820. Indeed, our precedents can more reasonably be read as interpreting the Fourth Amendment to bar the warrantless entry of a residence predicated solely on the belief that persons on the premises, knowing of the arrest, might destroy evidence. See Vale v. Louisiana, 399 U. S. 30 (1970).

We have, of course, recognized that a warrantless entry is permissible in an exigent circumstance. See Mincey v. Arizona, 437 U. S. 385, 393 (1978). But even assuming that the need to preserve evidence could provide a basis for a finding of exigent circumstances sufficient to allow the police to enter a home without a warrant, cf. Schmerber v. California, 384 U. S. 757, 770 (1966), the Constitution surely requires a far more substantial showing of exigency than was made here: Not only must there have been probable cause to search, but there must also have been a “reasonable belief,” based on articulable facts, that the destruction of evidence was imminent; and further, there must be the assurance that the emergency giving rise to the warrantless entry could not responsibly have been avoided. See United States v. Rosselli, 506 F. 2d 627 (CA7 1974). Because from all appearances the warrantless entry in this case can be justified neither as a search incident to an arrest nor as compelled by exigent circumstances, and because the court below enunciated a broad exception to the warrant requirement not recognized by any decision of this Court, and which can all too easily become “enthroned into the rule,” United States v. Rabinowitz, 339 U. S. 56, 80 (1950) (Frankfurter, J. dissenting), I would grant certiorari and set this case for argument.

       “One characteristic of all opinions dissenting from the denial of certio-rari is manifest. They are totally unnecessary. They are examples of the purest form of dicta, since they have even less legal significance than the orders of the entire Court which, as Mr. Justice Frankfurter reiterated again and again, have no precedential significance at all.
      “Another attribute of these opinions is that they are potentially misleading. Since the Court provides no explanation of the reasons for denying certiorari, the dissenter’s arguments in favor of a grant are not answered and therefore typically appear to be more persuasive than most other opinions. Moreover, since they often omit any reference to valid reasons for denying certiorari, they tend to imply that the Court has been unfaithful to its responsibilities or has implicitly reached a decision on the merits when, in fact, there is no basis for such an inference.” Singleton v. Commissioner, 439 U. S. 940, 944-945 (opinion of Stevens, J., respecting the denial of the petition for writ of certiorari).

       “Wise adjudication has its own time for ripening.” Maryland v. Baltimore Radio Show, Inc., 338 U. S. 912, 918.

       The Court of Appeals’ opinion does refer to evidence suggesting that petitioner had rented the fourth-floor apartment, but does not expressly resolve the issue. It is sound practice, however, to deny a petition for cer-tiorari when the facts do not firmly establish that the petitioner has standing to raise the question presented. Cf. Mental Hygiene Dept. of Cal. v. Kirchner, 380 U. S. 194, 200.

       Justice Brennan suggests, in his dissenting opinion, that the Court of Appeals has enunciated a broad exception to the warrant requirement that “not only authorizes the police to enter a home without a warrant in circumstances far less compelling than we have recognized, but permits law officers, in determining the time and manner of executing an arrest, to contrive their own exigency and thereby avoid the necessity of procuring a warrant before entering the home.” Post, at 983. In my judgment, this is not a fair characterization of the cautious and circumscribed opinion written by Judge Kearse.

       Such a conclusion does not lack support in decisions of this Court. In Schmerber v. California, 384 U. S. 757, the Court held that the administration of a blood test to check for the presence of alcohol, without the authority of a search warrant, did not violate the Fourth Amendment. In his opinion for the Court, Justice Brennan wrote:
      “Although the facts which established probable cause to arrest in this ease also suggested the required relevance and likely success of a test of petitioner’s blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that the inferences to support the search ‘be drawn 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, 13-14; see also Aguilar v. Texas, 378 U. S. 108, 110-111. The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.
      “The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ Preston v. United States, 376 U. S. 364, 367.” Id., at 770.

       As Justice Stevens notes, ante, at 977, Judge Kearse’s opinion for the Court of Appeals describes in considerable detail the factual background pertinent to petitioner’s claim here. In addition, the opinion clearly states the legal standard believed applicable, and applies that standard in appraising the police conduct in question and the ruling of the District Court. But this in my view makes this case a particularly good vehicle for the exercise of our certiorari jurisdiction: the facts developed by the Court of Appeals suggest that a more restrictive standard respecting the circumstances under which warrantless entry of a home is constitutionally permitted would have produced a contrary ruling on petitioner’s motion to suppress; and the factual analysis of the Court of Appeals would be most helpful to this Court in defining a standard meaningful to police officers in the execution of their responsibilities, and capable of consistent application in the courts.
      While there is some evidence suggesting that petitioner had no proteetible interest in the fourth-floor apartment, I do not share Justice Stevens’ concern whether petitioner had standing to contest this search. It is apparent to me that any possible question which was or could have been raised in that regard was resolved by the Court of Appeals in favor of petitioner. But whether that question, or other considerations identified by Justice Stevens, or any number of other factors not suggested by him, persuaded my colleagues against the exercise of our certiorari jurisdiction here, quite obviously my own view is that this is a very appropriate case for plenary review.

       See United States v. Gardner, 627 F. 2d 906 (CA9 1980); United States v. Spanier, 597 F. 2d 139 (CA9 1977); United States v. Cravero, 545 F. 2d 406 (CA5 1976), cert. denied sub nom. Miller v. United States, 429 U. S. 1100 (1977); United States v. Gepulonis, 530 F. 2d 238 (CA1), cert. denied, 426 U. S. 908 (1976); United States v. Rich, 518 F. 2d 980 (CA8 1975), cert. denied, 427 U. S. 907 (1976); United States v. Looney, 481 F. 2d 31 (CA5), cert. denied, 414 U. S. 1070 (1973); United States v. Cristophe, 470 F. 2d 865 (CA2 1972), cert. denied sub nom. Panica v. United States, 411 U. S. 964 (1973). See also Chimel v. California, 395 U. S., at 775 (White, J., dissenting) (possible removal of evidence should justify search following arrest in residence). But see United States v. Gamble, 473 F. 2d 1274 (CA7 1973).

       Several of the cases have allowed a security search where police possessed a reasonable apprehension of violence from within the house as they executed an arrest outside. See United States v. Baker, 577 F. 2d 1147 (CA4), cert. denied sub nom. Weinstein v. United States, 439 U. S. 850 (1978); United States v. Bowdach, 561 F. 2d 1160 (CA5 1977); Hopkins v. Alabama, 524 F. 2d 473 (CA5 1975). At least two federal cases other than this one have ratified warrantless security searches premised solely on an asserted desire to preserve evidence. See United States v. Fulton, 549 F. 2d 1325 (CA9 1977); United States v. McLaughlin, 525 F. 2d 517 (CA9 1975), cert. denied, 427 U. S. 904 (1976). See also Thomas v. Parett, 524 F. 2d 779 (CA8 1975); United States v. Rubin, 474 F. 2d 262 (CA3), cert. denied sub nom. Agran v. United States, 414 U. S. 833 (1973).


source: Caselaw Access Project

author: Justice Rehnquist,

license: Public Domain

text:
    No. 80-2017.
    Snead, Sheriff, et al. v. Stringer.
   C. A. 5th Cir. Certiorari denied.

Justice Rehnquist,

with whom The Chief Justice and Justice O’Connor join,

dissenting.

This case offers an instructive example of a phenomenon not uncommon in constitutional law. The Constitution is a written document, but cases and controversies involving its provisions necessarily result in opinions from this Court. Those opinions themselves contain aphorisms, whose resemblance to the actual text of the Constitution grows increasingly remote as they are used as substitutes for the text itself, applied to wholly different situations than that addressed in the original case, or simply used as convenient “catchwords” to justify a given result. In my opinion, that is what has happened here. Constitutional building blocks have been piled on top of one another so that the connection between the original provision in the Constitution and the application in a particular case is all but incomprehensible.

Massiah v. United States, 377 U. S. 201, 206 (1964), reversed the conviction of an accused on the ground that he had been denied “the basic protections of [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him.” One building block was used to reach that result. Powell v. Alabama, 287 U. S. 45 (1932), held that a trial court’s failure to appoint counsel in a capital case until the trial began violated the Due Process Clause of the Fourteenth Amendment because it deprived the defendants of an opportunity to consult with an attorney, and have him investigate their case and prepare a defense. In Mas-siah, the Court implicitly concluded that the Sixth Amendment’s guarantee of the assistance of counsel includes a promise of the companionship of counsel, at least when an interrogation takes place following the initiation of criminal proceedings. But Massiah was further expanded in Brewer v. Williams, 430 U. S. 387 (1977), at least insofar as the latter case appeared to establish an extremely heavy burden which the prosecution must carry to demonstrate waiver of the right to counsel, despite the existence of a voluntary admission by one who has been informed of and understands his rights. Nevertheless, Brewer emphasized that an accused has a right to the presence of counsel only when the government interrogates him. Id., at 400, 401. • In Brewer, detectives “deliberately and designedly set out to elicit information from” the defendant. Id., at 399. In the present case, the lower federal courts held in a habeas corpus proceeding that the Massiah rule was violated when the State introduced against respondent evidence of incriminating statements which he volunteered to the prosecutor in a brief telephone conversation. Thus, another building block is added to support a result even further from the text of the Constitution from which it purports to derive.

Respondent was indicted by an Alabama grand jury on one count of forgery and one count of embezzlement. He was Mayor of Hobson City, which issued a check to one Malone, at one time the city’s Fire Chief. The check was signed by respondent and the City Clerk and was endorsed in the name of the respondent and of Malone. But Malone testified that at the time the check was issued, he was no longer in the city’s employ. He also testified that he neither endorsed his name on the check nor authorized respondent to do so, and that he never received proceeds from the check. Other evidence indicated that respondent had deposited the check in his own account.

Respondent testified in his own behalf to the effect that Malone had asked if his brother could fulfill his duties during the period of an absence from the State necessitated by personal problems. Malone also allegedly gave respondent permission to endorse paychecks and deliver the proceeds to his brother. Thus, as the record comes to us, with a jury finding of guilty, an affirmance by the Alabama Court of Criminal Appeals, and a denial of certiorari by the Supreme Court of Alabama, it provides a jury question of guilt or innocence so far as the charges were concerned. But respondent eventually sought federal habeas relief in the United States District Court for the Northern District of Alabama. His complaint there was that the state prosecutor had violated Massiah, supra, Brewer, supra, and the more recent case of United States v. Henry, 447 U. S. 264 (1980). These violations were alleged to consist of the testimony of the District Attorney at trial about a telephone conversation with respondent. He was examined by an Assistant District Attorney; over respondent’s objection, he testified that he had called to request city records for use as samples of respondent’s handwriting and that of the Malone brothers. At this time respondent was under indictment and had retained counsel, but still served as Mayor and custodian of the city’s records. In reply to the District Attorney’s request, respondent stated that the records would be made available, but that they would be unnecessary since he had signed Malone’s name, as well as his own, on the back of the check.

Ultimately, the jury acquitted respondent of forgery, but convicted him of embezzlement. Respondent appealed to the Alabama Court of Criminal Appeals. He argued, in part, that the District Attorney’s telephone request for handwriting exemplars should have been preceded by the warnings required in Miranda v. Arizona, 384 U. S. 436 (1966). The Court of Criminal Appeals rejected this argument, concluding that the telephone call did not amount to custodial interrogation. Stringer v. State, 372 So. 2d 378, 382 (1979). It noted that “the admission was a volunteered statement, not in response to a question calling for such an answer.” Ibid. The court also dismissed the contention that the conviction was invalid because the District Attorney had violated an ethical obligation imposed by the Alabama Code of Professional Responsibility to contact respondent’s attorney before initiating the telephone call. Assuming that a breach of ethical obligations had occurred, it could provide no basis for reversing a criminal conviction. Id., at 382-383. Finally, the court concluded that any error in admission of the District Attorney’s testimony was harmless. “[T]he appellant testified at trial that he signed William Malone’s name to the check. In fact his whole defense was that he had Malone’s permission to sign the check.” Id., at 383. The court affirmed respondent’s conviction, and the Alabama Supreme Court denied a writ of certiorari. Ex parte Stringer, 372 So. 2d 384 (1979).

Respondent then sought a writ of habeas corpus in the United States District Court for the Northern District of Alabama. In a brief opinion, that court issued the writ on the ground that

“the securing of an incriminating statement from a defendant who was represented by counsel after indictment in the absence of presence of defense counsel or a waiver thereof is a deprivation of such a defendant’s right to counsel as that right is described in Massiah v. United States, [377 U. S. 201 (1964)]. Due to the fact that without the evidence obtained by the prosecuting official the State’s case would have likely failed, it is impossible to conclude that the obtaining of this statement was harmless error.” App. to Pet. for Cert. 6a-7a.

The United States Court of Appeals for the Fifth Circuit affirmed for the reasons set forth in the District Court’s opinion. 640 F. 2d 383 (1981).

By a subtle process, the relevant text of the Sixth Amendment, which provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence,” has in a short period of time evolved through a stage of excluding testimony “deliberately elicited” from a defendant who had been isolated from the services of counsel, to mandating a new trial of one who by telephone has volunteered a statement to a prosecutor.

As one Member of the Henry majority stated, “Massiah does not prohibit the introduction of spontaneous statements that are not elicited by governmental action.” 447 U. S., at 276 (Powell, J., concurring). Rather, “a defendant must show that the government engaged in conduct that, considering all of the circumstances, is the functional equivalent of interrogation.” Id., at 277. The facts and language of Massiah, Brewer, and Henry clearly support that interpretation. They offer no support for the result in this case.

The federal habeas court also concluded that the admission of respondent’s statement could not have been harmless error. App. to Pet. for Cert. 7a. This conclusion was squarely contrary to that of the Alabama Court of Criminal Appeals, which found that any error in the admission of the District Attorney’s testimony was harmless. As noted, “the appellant testified at trial that he signed William Malone’s name to the check. In fact his whole defense was that he had Malone’s permission to sign the check.” 372 So. 2d, at 383 (emphasis supplied). It is even less likely that the testimony influenced the verdict in view of the jury’s acquittal of respondent on the forgery charge.

It is scarcely surprising that fewer and fewer capable lawyers can be found to serve on state benches when they may find their considered decisions overturned by the ruling of a single federal district judge on grounds as tenuous as these. This case represents, not merely one more piece of grist in a giant judicial mill, but a vivid illustration of the misapplication of the precedent of this Court by a single federal habeas court, followed by a conclusion that the habeas court’s version of our case law required exclusion of evidence which the state court system had found to be harmless. I would therefore grant the petition for certiorari in this case.

       The holding of Massiah was immediately rendered authoritative in the States by virtue of another judicial building block — the “selective incorporation” of the Sixth Amendment by the Due Process Clause of the Fourteenth accomplished in Gideon v. Wainwright, 372 U. S. 335 (1963).

       According to petitioners, the District Attorney’s relevant testimony is as follows:
      “I asked Mayor Stringer if he would be willing to, through records down there at City Hall, provide me with samples of his handwriting and Donald Malone’s handwriting and William Malone’s handwriting. . . .
      “Q. What was Mayor Stringer’s reply to you, please?
      “A. He was willing to give me those records. He said that I was welcome to have whatever records that I wanted but he said he felt like it was unnecessary because he had signed William Malone’s name to the back of the cheek as well as his own. ...” Pet. for Cert. 10-11.

       The District Judge in this case also rendered the initial decision ultimately reversed in Beatty v. United States, 389 U. S. 45 (1967). Beatty was a one-sentence per curiam opinion, resting on the authority of Massiah. In his opinion in this case, the judge recalled that experience in offering consolation to the District Attorney: “Prosecuting officials and trial judges acting with absolute good faith and sincerity oftentimes take acts which run afoul of principles of law declared by the Supreme Court of the United States. This court found itself in the same position in Beatty v. United States . . . App. to Pet. for Cert. 9a. Perhaps that experience rendered the District Court hypersensitive to allegations of Massiah error. While this possibility may help to illuminate the reasons for the judgment below, however, it cannot substitute for a careful analysis of the constitutional issues, especially when the federal court sits in judgment on the courts of the State by virtue of its power to issue a writ of habeas corpus.


text:
    No. 80-2021.
    United Credit Bureau of America, Inc. v. National Labor Relations Board.
   C. A. 4th Cir. Certiorari denied.

Justice Rehnquist,

dissenting.

In this case, the National Labor Relations Board (NLRB) found that petitioner had committed an unfair labor practice by filing a civil action for damages in state court against a discharged employee who had filed unfair labor practices charges with the NLRB. The NLRB ordered petitioner to dismiss the state-court action and reimburse the employee for all legal expenses she had incurred in defending the lawsuit. Because I believe that principles of federalism and comity should preclude the NLRB from interpreting the National Labor Relations Act (NLRA) to empower the NLRB to enjoin a state-court damages action between two private entities, I dissent from the denial of certiorari.

Tonia Anderson was hired by petitioner as a probationary employee for a period of 120 days. After discussing working conditions with other employees, Anderson spoke with her supervisor, informing him of her desire for a number of benefits. After a subsequent meeting attended by Anderson and two supervisors, Anderson was informed that her employment was terminated because her attitude toward her job had changed and, therefore, she would be unable to perform her work satisfactorily.

Anderson then filed unfair labor practices charges with the NLRB, which issued a complaint against petitioner alleging violations of §§ 8(a)(1), (3) of the NLRA, 61 Stat. 140, as amended, 29 U. S. C. §§ 158(a)(1), (3). One day prior to the NLRB hearing on these charges, petitioner filed a damages action against Anderson in state court. Petitioner’s complaint alleged that Anderson had contrived a fraudulent scheme in order to obtain a paid vacation with her new husband. The complaint alleged that Anderson knew that if she could provoke petitioner into discharging her, NLRB settlement procedures, following the filing of her unfair labor practice charge, would result in her reinstatement with backpay within a relatively short period of time. The NLRB subsequently issued a second complaint, alleging that petitioner violated §§ 8(a)(1), (4), 29 U. S. C. §§ 158(a)(1), (4), by initiating the damages action against Anderson.

Based solely on the complaint petitioner filed in the state-court action, the NLRB concluded that petitioner violated §§ 8(a)(1), (4) because its damages action “was filed purely for purposes of retaliation to punish Anderson for seeking redress for her discharge from the [NLRB] and to discourage other employees from ever emulating Anderson in seeking to enforce their rights.” 242 N. L. R. B. 921, 926 (1979). The employer’s allegations that Anderson had schemed to obtain a paid vacation were rejected by the NLRB as mere “speculation.” The NLRB ordered petitioner to dismiss its damages action and reimburse Anderson for her legal expenses incurred in defending that suit. The Court of Appeals for the Fourth Circuit enforced the NLRB’s order, rejecting, inter alia, petitioner’s contention that its state-court action was not pre-empted by federal labor law jurisdiction under Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180 (1978).

By ordering petitioner to dismiss its damages action against Anderson, it is clear that the NLRB has enjoined a pending lawsuit in state court, even though the NLRB’s order is addressed to petitioner and not the state court. See Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281, 287 (1970). Since 1793, the Anti-Injunction Act has prohibited federal courts from enjoining state-court proceedings, unless the injunction may be justified by one of three specifically defined exceptions. See 28 U. S. C. § 2283. There is no reason why the concerns of federalism and comity comprehended by the Anti-Injunction Act should not apply to the NLRB as well. As this Court has explained in Locomotive Engineers, the premise of the Act is that ours is a country of essentially two separate legal systems. 398 U. S., at 286. Each system functions independently of the other. Our lower federal courts do not have the power to review the decisions of state courts. Only this Court has such a power, and we cannot exercise that power unless some federal issue or interest is at stake. 28 U. S. C. §1257. This dual system cannot function absent respect by each for the judicial process of the other. Federal interference with the States’ judicial processes is no less contrary to the policies underlying § 2283 if that interference comes from a federal agency rather than from a federal court.

I do not doubt that § 8(a)(4) of the NLRA serves an important federal interest in ensuring employees that they may file unfair labor practice charges with the NLRB without fear of reprisal from their employer. Nevertheless, such an interest is insufficient to justify the massive intrusion into the State’s judicial processes undertaken by the NLRB in this case. This Court has held that a federal court may not enjoin a pending lawsuit in state court even when “those proceedings interfere with a protected federal right or invade an area pre-empted by federal law, even when the interference is unmistakably clear.” Atlantic Coast Line R. Co. v. Locomotive Engineers, supra, at 294; see Clothing Workers v. Richman Brothers Co., 348 U. S. 511, 517 (1955).

Whatever coercive effect petitioner’s state-court action may have had upon its employees’ right to file charges with the NLRB, that alone is insufficient to warrant injunctive relief. The NLRB did not consider whether the state-court proceeding interfered with its ability to consider or dispose of Anderson’s charges. Unlike Capital Service, Inc. v. NLRB, 347 U. S. 501 (1954), the state court in the instant case had not taken any action, let alone one that could have interfered with the NLRB’s ability to consider the merits of a matter within its exclusive jurisdiction. If the NLRB concludes that a pending state-court proceeding interferes with its jurisdiction, it may seek an injunction in a federal district court. Id., at 505-506; see 29 U. S. C. §160(j).

The proper forum to determine the merits of a suit by an employer or a union against an employee is not the NLRB, but the forum in which the suit is brought. If the lawsuit lacks merit, then the court in which the suit was brought will dismiss the suit. If the subject matter of the lawsuit is preempted by federal labor law jurisdiction, as the Court of Appeals has determined in the instant case, then the proper tribunal to make such a determination is the court in which the action was brought. If the application of state tort law interferes with the national objective that employees not be impeded in cooperating with the NLRB in enforcing the NLRA, then our decisions have held that the state court may not apply that law. See Nash v. Florida Industrial Comm’n, 389 U. S. 235, 239-240 (1967). If lower state courts err in their determination of these issues, the party claiming error may appeal through the state system and ultimately to this Court.

Because I do not believe that the NLRB has the power to enjoin an action for damages in state court, I dissent from the denial of certiorari.

       The complaint was the only item admitted into evidence and no testimony was elicited by any party.

       The NLRB purported to rely on the “Clyde Taylor” doctrine, Clyde Taylor, 127 N. L. R. B. 103 (1960), for the proposition that the filing of a lawsuit in state court may constitute an unfair labor practice and that, as such, may be enjoined by the NLRB. In Clyde Taylor, however, the NLRB held only that an employer’s threat to sue an employee for libel because of the latter’s filing of unfair labor practices charges with the NLRB constituted an unfair labor practice. Id., at 108. “By this, we do not mean to deny the existence of the normal right of all persons to resort to the civil courts to obtain an adjudication of their claims.” Ibid. In accord with this caveat, the NLRB held that the employer’s obtaining an injunction in state court banning peaceful picketing resorted to by a union to protest unlawful discharges did not constitute an unfair labor practice. Id., at 109. “[T]he Board should accommodate its enforcement of the Act to the right of all persons to litigate their claims in court, rather than condemn the exercise of such a right as an unfair labor practice.” Ibid.

        In Retail Clerks, Local 770, 218 N. L. R. B. 680 (1975), the NLRB modified the Clyde Taylor doctrine. Although the underlying contractual provision was unlawful, the NLRB held that a union’s suit to enforce an arbitration award against an employer did not constitute an unfair labor practice. The NLRB, however, noted that the union’s resort to the courts “was done in good faith to enforce a colorable contract right and was not the kind of tactic calculated to restrain employees in the exercise of rights guaranteed by the Act.” 218 N. L. R. B., at 683. In Television Wisconsin, Inc., 224 N. L. R. B. 722 (1976), the NLRB found that a union’s damages action against an employee seeking to enforce an unlawful union security clause in a collective-bargaining agreement constituted an unfair labor practice under §§ 8(b)(1), (2) of the NLRA, 61 Stat. 141, as amended, 29 U. S. C. §§ 158(b)(1), (2).

        Power Systems, Inc., 239 N. L. R. B. 445 (1978), enf. denied, 601 F. 2d 936 (CA7 1979), represents the first instance in which the NLRB has held that an employer committed an unfair labor practice by filing a civil action against an employee. The NLRB found that the civil action was brought in order to pursue an “unlawful objective of penalizing [an employee] for filing a charge with the [NLRB].” 239 N. L. R. B., at 450.

       Thus, the NLRB did not restrict its inquiry to ascertaining the intent behind the suit or its potential coercive effects upon employees who wish to file charges with the NLRB. In Power Systems, supra, the NLRB also examined the facts underlying the complaint to determine whether the employer had a reasonable basis for filing the lawsuit. Id., at 449-450. That the NLRB will now examine the merits of the civil action is made clear in Bill Johnson’s Restaurants, Inc., 249 N. L. R. B. 155, 164-165 (1980).
      Thus, the Clyde Taylor doctrine has evolved from a policy of noninterference with state-court litigation to a policy of examining the merits of the litigation to determine whether that litigation constitutes an unfair labor practice. The state-court defendant need only persuade the NLRB to order the state-court plaintiff to dismiss the lawsuit. The employee need not utilize the procedures available to him in state court.

       In Television Wisconsin, Inc., supra, however, the NLRB held that it would be improper for it to order the union to reimburse the employees for the legal expenses they incurred in defending against the damages action. Id., at 781. The NLRB relied upon the “American rule” against providing legal expenses to the prevailing party in a lawsuit from the loser and this Court’s decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975).

       In this regard, it should be noted that the state court in the instant case has dismissed petitioner’s action against Anderson. App. to Pet. for Cert. A-7. The petition is silent, however, as to whether the lawsuit was dismissed because the complaint failed to state a cause of action under state law or because the subject matter of the dispute was pre-empted by federal law under Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180 (1978).


text:
    No. 80-2194.
    Croatan Books, Inc. v. Virginia.
   Cir. Ct. Fairfax County, Va. Certiorari denied.

Justice Brennan and Justice Marshall would grant the petition for certiorari and reverse the conviction.


text:
    No. 80-6434.
    Brown et al. v. Wainwright, Corrections Secretary.
   Sup. Ct. Fla. Certiorari denied.

Justice Marshall, with whom Justice Brennan joins,

dissenting.

I continue to believe that in all circumstances the death penalty is cruel and unusual punishment. Gregg v. Georgia, 428 U. S. 153, 231 (1976). However, I dissent from the denial of certiorari in this case on the additional ground that the Florida Supreme Court practice challenged by petitioners is questionable under prior precedents of this Court and deserves plenary consideration.

Petitioner Brown and 122 other Florida inmates sentenced to death brought original petitions for writs of habeas corpus in the Florida Supreme Court, alleging that since 1975, the Florida Supreme Court has

“engaged in the continuing practice of requesting and receiving information concerning capital appellants which was not presented at trial and not a part of the trial record or record on appeal. The information includes . . . pre-sentence investigation reports concerning the capital offense under review or prior convictions unrelated to the capital offense; psychiatric evaluations or contact notes [made in the correctional system after conviction]; psychological screening reports; recitations of a capital defendant’s refusal to submit to a psychiatric examination from which a report could be prepared; post-sentence investigation reports; probation or parole violation reports; and state prison classification and admissions summaries.” App. to Pet. for Cert. 2c-3c.

With rare exceptions, the State Supreme Court allegedly received this information without notice to the appellant whose sentence the court was reviewing or to his attorney. To support these allegations, petitioners offered written requests by the Court Clerk to correctional officials requesting such information, and letters of transmittal from these officials. Petitioners also suggest that this kind of information may have been received in some cases but not others, thus skewing the appellate process without regard to whether the information may benefit the particular appellant whose sentence is under review. The court accepted these allegations as true for the purposes of its decision but denied the petitions.

I believe that the Florida court’s ex parte consideration of such nonrecord evaluative data relating to individual appellants during the court’s review is questionable as a matter of due process and is inconsistent with this Court’s past insistence on strict procedural regularity in the imposition and review of capital sentences. See Gardner v. Florida, 430 U. S. 349 (1977). Moreover, much of the information appears to be inadmissible and unreliable hearsay, which petitioners should at least have the opportunity to cross-examine. Some may be inadmissible under this Court’s recent decision in Estelle v. Smith, 451 U. S. 454 (1981). Accordingly, I dissent.

Gardner, supra, invalidated a Florida death sentence in which the sentencing court had relied in part on a confidential portion of a presentencing report that had not been disclosed to the defendant or to his counsel. The plurality opinion emphasized the “vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” 430 U. S., at 358. Contrary to the State Supreme Court’s view, Gardner suggested no relevant distinction between the trial court’s initial imposition of a sentence and an appellate court’s discharge of its mandatory review function. Such a distinction is irreconcilable with this Court’s decision in Proffitt v. Florida, 428 U. S. 242 (1976), which approved the Florida appellate review procedure on the premise that “the Florida court has undertaken responsibly to perform its function of death sentence review with a maximum of rationality and consistency.” Id., at 258-259 (joint opinion of Stewart, Powell, and Stevens, JJ.). If the allegations here are true, then that premise of rationality is clearly invalid.

The State Supreme Court attempted to justify its receipt of this information on the ground that it does not rely on this information in fulfilling its appellate function in capital cases. In reviewing the imposition of the death penalty, the court first reviews each sentence for procedural regularity and then compares the sentence with prior capital cases to ensure that the sentence imposed is not disproportionate. The court stated that these two appellate functions do not involve the reweighing or reevaluating of evidence. Thus, the court concluded, “non-record information we may have seen, even though never presented to or considered by the judge, the jury or counsel, plays no role in capital sentence ‘review.’” 392 So. 2d 1327, 1332-1333 (1981).

I am not persuaded. If the court does not use the disputed nonrecord information in performing its appellate function, why has it systematically sought the information? Moreover, the court intimated that it does use the information, although in an undisclosed “procedural” manner: “The ‘tainted’ information we are charged with receiving was ... in every instance obtained to deal with newly-articulated procedural standards.” Id., at 1333, n. 17. Petitioners are entitled to the assurance either that such information is not sought and placed before the court, or that its use is circumscribed by appropriate safeguards.

If untested by the adversary process, the disputed information may distort the State Supreme Court’s appellate functions. When reviewing a sentence for procedural regularity, the court might uphold or vacate the sentence in part on grounds not considered by the trial court, or on factually erroneous grounds, because it has viewed ex parte unreliable, nonrecord information concerning the appellant. And when reviewing sentences for proportionality, the court’s comparison of the sentences of other capital defendants with that of the appellant is rendered meaningless if the court has upheld or vacated the death sentences of other individuals after viewing this kind of information, or if the court used possibly erroneous information only as background data for its proportionality determination. The more systematic the practice of reviewing such information, the greater the danger of this second form of distortion.

The court characterized these petitions as “attempts to pervert judicial processes, or to castigate the judiciary,” which is simply trying to perform its difficult task of reviewing capital sentences. Id., at 1333. This is exaggeration. Petitioners’ position does not preclude the court from considering any record or judicially noticeable information in reviewing sentences. Petitioners are not asking permission to examine the thought processes of appellate judges, or to obtain disclosure of each item of judicially noticeable nonrecord information considered on appeal. They are asking permission to examine and dispute the accuracy or completeness of nonrecord information submitted to the court pertaining to that individual appellant.

Because I believe that this practice is questionable on due process and Eighth Amendment grounds, and because I believe that it may distort the mandatory review of capital sentences by the State Supreme Court, I would grant the petition for certiorari. Although petitioners might seek to develop the record on these issues further in a federal habeas corpus proceeding, the existing record is sufficiently disturbing to demand plenary review.


text:
    No. 81-53.
    Florida v. Garrett.
   Dist. Ct. App. Fla., 3d Dist. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.

Justice Rehnquist,

with whom The Chief Justice joins,

dissenting.

In Jackson v. Indiana, 406 U. S. 715 (1972), this Court concluded that “on the record before us, Indiana cannot constitutionally commit the petitioner for an indefinite period simply on account of his incompetency to stand trial on the charges filed against him.” Id., at 720. It went on to state:

“Respondent argues, however, that because the record fails to establish affirmatively that Jackson will never improve, his commitment ‘until sane’ is not really an indeterminant one. It is only temporary, pending possible change in his condition. Thus, presumably, it cannot be judged against commitments under other state statutes that are truly indeterminant. . . .
“Were the State’s factual premise that Jackson’s commitment is only temporary a valid one, this might well be a different case. But the record does not support that premise.” Id., at 725.

The Jackson Court went on to discuss Greenwood v. United States, 350 U. S. 366 (1956), and held that it did not support Indiana’s position, since it merely “upheld the Federal Government’s constitutional authority to commit an individual found by the District Court to be ‘insane,’ incompetent to stand trial on outstanding criminal charges, and probably dangerous to the safety of the officers, property, or other interests of the United States.” 406 U. S., at 726.

In the present case, the Florida District Court of Appeal reversed respondent’s murder conviction on the ground that, prior to trial, he had been committed to a state hospital longer than necessary to assess the likelihood of his eventual recovery of competency to stand trial. In my view, the decision rests on a serious misunderstanding of this Court’s opinion in Jackson, swpra. In light of the risk that the error will be repeated if not corrected, I would grant the petition.

On July 7, 1970, respondent was indicted for the first-degree murder of a police officer. He was arraigned and entered pleas of not guilty and not guilty by reason of insanity. Following a hearing on September 14, 1970, the trial court found respondent incompetent to stand trial and committed him to a state hospital. Three psychiatrists testified that respondent was suffering from paranoid schizophrenia and that episodes of the illness were likely to recur without intensive treatment. The psychiatrists also agreed that respondent posed a serious danger to himself and to others.

Over the next six years, the trial court ordered periodic psychiatric examinations of respondent and conducted five hearings to reevaluate his competency to stand trial. In hindsight, the hearings reveal a recurrent pattern of behavior. While institutionalized, respondent received large doses of psychotropic medication, which, in the opinion of the examining psychiatrists, were successful in restoring his competency to stand trial. The trial court, however, apparently was of the view that it could not reach a valid determination of competency as long as respondent was under the influence of medication. This view was shared by respondent’s counsel and by at least one of the examining psychiatrists. As a result, the court ordered withdrawal of medication and reevaluation. Typically, respondent severely regressed without medication. On the occasion of each reevaluation, the examining psychiatrists found respondent both incompetent to stand trial and dangerous to himself and others. And on each such occasion, the trial court recommitted respondent to the state hospital.

A sixth competency hearing was held in November 1977. Psychiatric testimony again indicated that respondent, although under medication, was competent to stand trial. Defense counsel argued that respondent could not be considered competent because remission of his illness was the result of continuing psychotropic medication, which might affect respondent’s ability to assist in the preparation of a defense. This time, however, the trial court found respondent competent to stand trial. Prior to the sixth competency hearing, Florida had enacted a statute that expressly permitted an adjudication of competency while under medication. 1977 Fla. Laws, ch. 77-312 (current version at Fla. Stat. §916.12(2) (Supp. 1980)).

At this point, the tactics of the defense counsel and the reasoning of the Florida Court of Appeal diverged sharply from this Court’s Jackson opinion. Defense counsel moved for dismissal of the indictment on the ground that respondent had been deprived of the right to a speedy trial secured by both state and federal law. Following denial of that motion and unsuccessful appellate proceedings in which he sought a writ of prohibition, respondent entered a plea of nolo conten-dere. An appeal followed in which respondent exclusively argued that he had been deprived of his state and federal rights to a speedy trial. The Florida District Court of Appeal reversed, but relied on Jackson v. Indiana to do so. 390 So. 2d 95 (1980).

In my view, the court’s decision is not supported, much less compelled, by Jackson v. Indiana. The petitioner in that case challenged his indefinite confinement in a mental hospital pending his recovery of competency to stand trial. In addition to the statute under which petitioner was committed, Indiana had enacted two other laws authorizing the civil commitment of persons found to be mentally ill. Those statutes contained more demanding commitment standards and more lenient standards of release than the statute that authorized petitioner’s commitment. This Court held that the unequal treatment of petitioner under the latter statute was not justified by the mere pendency of criminal charges against him. 406 U. S., at 729-730. As a matter of due process, the Court also held:

“[A] person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.” Id., at 738.

Jackson, therefore, recognized limits on the power of a State indefinitely to confine an accused “solely on account of his incapacity to proceed to trial.” As the Court was aware, however, that holding does not address the power of the State to try, and thus to convict, the accused once he has regained competency to face the charges against him. See id., at 739-740. It is foreseeable that once that time arrives, the defendant may allege that he has been deprived of the right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments. The respondent in this case relied precisely, and exclusively, on such an argument in the District Court of Appeal. See Brief in Opposition 4. That court, however, reversed his conviction “on the basis that, under the holding of Jackson v. Indiana, ... he should never have been brought to trial.” 390 So. 2d, at 96. Since Jackson did not address the power of the State to bring an accused to trial, it affords no basis for reversing respondent’s conviction.

The holding of the District Court of Appeal reflects other misconceptions about Jackson v. Indiana. Jackson turned largely on the contrast between Indiana’s standards for commitment and release applicable to those committed solely because of their lack of capacity to stand trial and comparable standards governing civil commitment under two alternative state laws. The Court concluded that Jackson had been deprived of substantial rights to which he would have been entitled under either of the alternative commitment statutes. See 406 U. S., at 727-730. Moreover, there was serious doubt that Jackson could have been committed, or kept long in confinement once committed, if judged according to those statutes. Ibid. The District Court of Appeal undertook no similar comparison in respondent’s case.

The result in Jackson also rested on due process grounds. The Court held that Indiana could not indefinitely confine an accused, “solely on account of his incapacity to proceed to trial,” without determining the likelihood that he would regain competency. Id., at 738 (emphasis added). Central to the result in Jackson was Indiana’s complete failure to rely on any basis for committing the petitioner other than his incompetency to stand trial. By way of contrast, the Court recalled the decision in Greenwood v. United States, 350 U. S. 366 (1956), which upheld the pretrial commitment of a defendant under 18 U. S. C. §§4244 to 4246, “even though there was little likelihood that he would ever become competent to stand trial.” 406 U. S., at 732. The Court noted that Greenwood, unlike Jackson, had been found not only incompetent, but dangerous. Ibid. In addition, Greenwood, unlike Jackson, was entitled to release when no longer dangerous. Ibid. As the Court’s discussion of federal law made clear, the constitutionality of indefinite commitment, without an assessment of eventual capacity is dependent on the purposes for which commitment is ordered.

These distinctions apparently escaped the Florida District Court of Appeal in the instant case. Petitioner notes that every examination of respondent prior to the last, in November 1977, produced findings that respondent was not merely incompetent: he was extremely dangerous to himself and others and in need of treatment. Pet. for Cert. 3-16. Only the most careless reading of Jackson and its reference to Greenwood, supra, would render it controlling in such circumstances. Jackson dealt with the pretrial confinement of one accused of crime, and there is no solace to be gleaned from it of a federal constitutional due process limit on the authority of a State to confine an accused found dangerous to himself and others.

In opposition, respondent maintains that the opinion of the District Court of Appeal contains language “strongly suggesting] the likelihood that the court below’s decision was based not on federal constitutional principles, but on former Florida Rule of Criminal Procedure 3.210(a)(5).” Brief in Opposition 4. That Rule, which was in effect from 1972 to 1977, provided that a trial court which found no substantial probability that a defendant would become competent to stand trial was required to “adjudge the defendant not guilty by reason of insanity and forthwith direct the institution of civil proceedings for the commitment of the defendant.” Although this Rule might have provided an adequate and independent state ground for reversing respondent’s conviction, it is neither discussed nor cited in the court’s decision and respondent concedes that he did not argue the Rule below. Id., at 5. The Rule, in fact, had been repealed prior to the appeal of respondent’s conviction, and his reliance on it in earlier competency hearings had proved consistently unavailing.

The rationale of a court’s decision usually is to be gleaned from the explanation given by the court. In this case, the explanation rests entirely on an erroneous interpretation of a decision by this Court. Rather than indulge in improbable speculation about what the court meant, as opposed to what it said, I would grant the petition for certiorari.

       On October 7, 1970, respondent was also charged with second-degree arson. Following his arraignment on that charge, a second judge, relying on the decision of the first, also found respondent incompetent to stand trial and ordered him committed to the state hospital. Both cases later were assigned to a single judge.

       If Jackson had purported to limit the power of the State to try an accused because of an unlawful pretrial commitment, it would have marked a drastic departure from the “established rule that illegal arrest or detention does not void a subsequent conviction.” Gerstein v. Pugh, 420 U. S. 103, 119 (1975).

       “The States have traditionally exercised broad power to commit persons found to be mentally ill. . . . The bases that have been articulated include dangerousness to self, dangerousness to others, and the need for care or treatment or training. . . .

        “■ . . It is clear that Jackson’s commitment rests on proceedings that did not purport to bring into play, indeed did not even consider relevant, any
        of the articulated bases for exercise of Indiana’s power of indefinite commitment. ... At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U. S., at 736-738 (footnote omitted).

       According to petitioner, respondent originally moved for an adjudication of insanity in reliance on the Rule at a competency hearing held in April 1973. Pet. for Cert. 7-8. The motion was denied and an appeal of the denial was subsequently dismissed. Garrett v. State, 283 So. 2d 905 (Fla. App. 1973). Respondent apparently renewed the motion at competency hearings in June 1974, December 1975, October 1976, and March 1977.

       Even if respondent’s suggestions were sufficiently plausible to reveal ambiguities in the court’s opinion, at most they would counsel this Court to grant the petition, vacate the judgment, and remand for reconsideration in light of California v. Krivda, 409 U. S. 33 (1972).


text:
    No. 81-60.
    Hopper, Warden v. Johnson, aka Brooks.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


author: Justice Powell,

text:
    No. 81-99.
    Kolom et ux. v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.

Justice Powell,

dissenting.

In the decision below, “fair market value” of a share of stock for minimum-tax purposes was determined solely by reference to the New York Stock Exchange (NYSE) price at the time of purchase even though § 16(b) of the Securities Exchange Act of 1934, 48 Stat. 896, 15 U. S. C. §78p(b), effectively prohibited the taxpayer’s sale of the security for six months thereafter. The case presents an important question of fairness to taxpayers, who, under this ruling, must recognize a “gain” that does not yet exist and may never materialize. Because the decision below is not supported by either the statutory language or its legislative history and because it tends to frustrate the congressional policy favoring employee stock ownership, I would grant certiorari and set the case for argument.

I

In 1968, 1970, and 1971, petitioner Aaron L. Kolom received options to acquire stock in Tool Research and Engineering Corp. (TRE) pursuant to a plan that qualified under §421 and §422 of the Internal Revenue Code of 1954 (IRC), as amended, 26 U. S. C. §421 and §422. Kolom exercised the options in September and October 1972 when he was an officer and director of TRE. He bought a total of 12,427 shares in three blocks at an average of 1354, 12, and 19%, per share. On the dates of exercise, the mean prices of the stock on the NYSE were, respectively, 52, 45%, and 4554.

Because Kolom was a TRE director, he was not free to take this “gain.” Under § 16(b) of the Securities Exchange Act, 15 U. S. C. § 78p(b), Kolom would have been liable to the company for any profits realized from the sale of these shares during the 6-month period following exercise of his option. And by the time Kolom was able to sell, the situation had altered dramatically. Six months after the date of exercise of the first block, the NYSE price dropped over 50% to 23%. Six months after the date of exercise of the other two blocks, the NYSE price also dropped over 50% to 207/s. Kolom eventually sold 5,000 of the shares for an average price of $9.27 per share, realizing a substantial loss on the transaction.

Under the IRC provisions in effect at that time, the exercise of the options did not result in any recognized compensation for purposes of calculating income because the TRE Employee Stock Option Plan (Plan) qualified under §421 and § 422. Tax on stock transferred under a qualified plan is deferred until the stock is sold, and any gain is then taxed at capital-gains rates provided certain other requirements are met.

Stock received pursuant to a qualified plan can, however, result in tax liability under the minimum-tax provisions. Title 26 U. S. C. § 56 and § 57 (1976 ed. and Supp. Ill) impose a tax on certain “preference” items, including stock received under plans that qualify under § 421 and § 422. The Commissioner audited Kolom’s 1972 return and assessed a deficiency on the ground that, for purposes of calculating his minimum tax, Kolom should have included as a “preference” item the difference between the option price and the NYSE price at the time each option was exercised. The Commissioner argued that Kolom should have included his “gain” of $424,888 as a preference item even though Kolom could not have realized the gain and even though the gain evaporated in the course of the six months following exercise of the option. This fictional gain resulted in a deficiency assessment of $43,792. The Tax Court affirmed the Commissioner, as did the Court of Appeals for the Ninth Circuit.

II

“As is true in every case involving the construction of a statute, our starting point must be the language employed by Congress.” Reiter v. Sonotone Corp., 442 U. S. 330, 337 (1979). See also Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J. concurring). For purposes of calculating the minimum tax, “tax preference items” include stock transferred pursuant to a qualified plan to the extent “the fair market value of the share at the time of exercise exceeds the option price.” IRC § 57(a)(6) (emphasis added). Thus, under the express terms of the statute, the amount included as a “preference” item is only the difference between the fair market value at the time the option is exercised and the option price.

As this Court noted in United States v. Cartwright, 411 U. S. 546, 551 (1973), “[t]he willing buyer-willing seller test of fair market value is nearly as old as the federal income, estate, and gifts taxes themselves.” The Cartwright Court described fair market value as “ ‘the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts.’” Ibid, (quoting Treas. Reg. §20.2031-l(b)).

At the time he exercised his option, Kolom would not have sold willingly at the NYSE price. Indeed, he would not have sold willingly at any price above the option price on that date or any date during the next six months because he then would have been obligated to pay to the corporation the entire amount of the “gain.” In the past, this Court has taken into account such constraints in determining fair market value. In Helvering v. Tex-Penn Co., 300 U. S. 481 (1937), the taxpayers, pursuant to the terms of a corporate reorganization, received stock that was restricted against sale for a period of up to six months. The Court held that “the shares of . . . stock, regard being had ... to the terms of a restrictive agreement making a sale thereof impossible, did not have a fair market value, capable of being ascertained with reasonable certainty, when they were acquired by the taxpayers.” Id., at 499. See also MacDonald v. Commis sioner, 230 F. 2d 534, 539-541 (CA7 1956) (applying Tex-Penn in finding no recognizable gain in purchase by corporate insider liable under § 16(b)).

Ill

The basis for the Commissioner’s unrealistic interpretation of “fair market value” in the case at bar is Treas. Reg. § 1.57 — 1(f)(3), which states:

“In accordance with the principles of section 83(a)(1), the fair market value of a share of stock received pursuant to the exercise of a qualified or restricted stock option is to be determined without regard to restrictions (other than nonlapse restrictions within the meaning of § 1.83-3(h)). Notwithstanding any valuation date given in section 83(a)(1), for purposes of this section, fair market value is determined as of the date the option is exercised.” 26 CFR §1.57-1(0(3) (1980).

But by applying the “principles of section 83(a)(1)” to the valuation of qualified stock under § 57(a)(6), this Treasury Regulation .ignores basic differences in the language and purposes of the two sections. Most significantly § 57 is directed to the capture, for minimum-tax purposes, only of stock acquired pursuant to qualified plans under § 421 and § 422. By contrast, §83 is directed solely at the taxation of those options that are not acquired as part of such plans. IRC § 83(e) states explicitly that the income tax imposed on restricted stock by § 83 does not apply to stock transferred under qualified plans. Thus, the Commissioner has applied the § 83(a) valuation technique to a transfer of qualified stock even though Congress has stated that §83 is of no relevance to transfers of that type.

A brief glance at the legislative history explains the policy basis for the difference in treatment of stock issued under qualified plans and stock issued under plans that do not qualify. As the Joint Committee on Internal Revenue Taxation explained, § 83 was enacted to impose income tax on so-called “restricted stock plans” which were used to defer compensation actually owed employees. See Joint Committee on Internal Revenue Taxation, General Explanation of the Tax Reform Act of 1969, H. R. 13270, 91st Cong., Pub. L. 91-172, pp. 109-111 (Comm. Print 1970). Under some deferred-compensation plans involving stock, an employee could postpone his tax liability even though he had effective control over the stock with little or no risk of forfeiture. To capture the gain effectively realized under such plans, Congress enacted § 83(a), which provides that stock purchased by an employee is income to the extent its fair market value exceeds purchase price, without regard to restrictions that lapse. Ibid. In short, Congress enacted § 83 for the purpose of ending tax avoidance schemes using spurious restrictions.

Congress did not, however, intend to tax, as compensation in the year received, all stock transferred to employees because such treatment would defeat another congressionally favored policy: long-term employee ownership of company stock. It is this policy that justifies the favored treatment accorded qualified stock option plans. Employees are less likely to buy and hold stock if they must realize a theoretical gain in the year of purchase even though in fact they receive no cash with which to pay the tax. Congress therefore provided that transfers pursuant to plans that qualify under §421 and §422 — plans that give employees a “stake” in the business rather than simply deferring compensation — are exempt from the income tax imposed by § 83(a). See, e. g., H. R. Rep. No. 91-413, pt. 1, p. 87 (1969).

It is this policy of encouraging employee stock ownership that explains why the language of § 57 and § 83 differs. Both sections were enacted as part of the Tax Reform Act of 1969. Yet §57, imposing minimum tax on the transfer of qualified stock, uses only the words “fair market value,” whereas §83, seeking to end tax avoidance through the use of wow-qualifying stock and spurious restrictions, modifies that phrase with a parenthetical indicating that restrictions that lapse are to be ignored. Congress’ failure to include any similar qualification in § 57 strongly suggests that it intended to use “fair market value” in its traditional and well-established sense. Any other understanding of the term would defeat the purpose §§57, 421, and 422 were designed to serve.

Kolom received his options under a plan that qualified under § 422(b). Because his transactions met the requirements of that section, the stock represented “a stake in the business,” and Kolom was entitled to defer recognition under § 83(e). Only a rash speculator would have exercised those options to obtain the “stake” in the corporate employer encouraged by §421 and §422 with the knowledge that he thereby could be liable for a substantial tax under the minimum-tax provisions on a gain that, by law, he could not realize. The decision below, imposing tax under such circumstances, is inconsistent with the congressional policy of encouraging long-term employee ownership of company stock and with the plain language of the statute.

The present interpretation of these provisions by the IRC also results in a degree of unfairness that hardly could have been intended by Congress. The case merits plenary consideration by the Court.

       Transfers of stock under plans that qualify under § 421 and § 422 are, by definition, a legitimate transfer of a “stake” in the employer to the employee. In order to qualify under § 422(b), the option must have a maximum term of five years and the option price cannot be less than the market price of unrestricted stock at the time the employee receives the option. In addition, in order to defer tax recognition under § 421, the employee cannot sell qualifying stock for a period of at least three years after the grant of the option and must still be an employee within three months of the exercise of the option. Thus, any difference between the option price and the NYSE price at the time the option is exercised represents the employee’s “stake” in his corporate employer during the term of his employment after the receipt of the option rather than an attempt to avoid taxes by attaching ephemeral restrictions to stock transferred to the employee at less than its market value at the time of the transfer.

       Petitioner husband argues that the Commissioner’s action deprived him of property without due process of law. Because I would decide the case on statutory grounds, I would not reach this issue.


text:
    No. 81-122.
    Valley News v. McCusker.
   Sup. Ct. N. H. Motion of American Newspaper Publishers Association et al. for leave to file a brief as amici curiae granted. Certiorari denied.


text:
    No. 81-201.
    General Motors Corp. v. Gorsuch, Administrator, United States Enivironmental Protection Agency, et al.
   C. A. D. C. Cir. Certiorari denied. Justice O’Connor took no part in the consideration or decision of this petition.


text:
    No. 81-383.
    McCormick v. Edwards, Governor of Louisiana, et al.
    C. A. 5th Cir. Certiorari denied.
    Justice Brennan and Justice White would grant certio-rari.


author: Justice White,

text:
    No. 81-5104.
    Barry v. New Jersey.
   Sup. Ct. N. J. Certiorari denied.

Justice White,

with whom Justice Brennan and Justice Marshall join,

dissenting.

The question presented in this case is whether petitioner’s confession, obtained by police after he had been arrested without probable cause, held in custody for some 18 hours, and confronted with the confessions of three other participants in the crime, should have been excluded at petitioner’s trial as an inadmissible fruit of an unconstitutional arrest.

On January 12, 1976, the First Federal Savings and Loan Association of Montclair, N. J., was robbed. Investigation revealed information sufficient for the issuance of an arrest warrant for Archie Murphy. On the evening of January 15, 1976, police went to an East Orange, N. J., apartment building to execute the arrest warrant for Murphy. Upon arrival, one officer saw petitioner Edward Barry standing outside the building. Recognizing him from his investigation of another robbery one year earlier, the officer arrested petitioner and gave him Miranda warnings. Murphy was arrested inside the building.

Petitioner and Murphy were first taken to the East Orange police station, then to Montclair Police Headquarters. Petitioner was transferred to the Glen Ridge jail for overnight lodging. In the early morning hours of January 16, Murphy made a statement incriminating himself and identifying petitioner as the driver of the getaway car. At midday on January 16, after petitioner had been in custody for approximately 18 hours, he was taken from Glen Ridge jail to Montclair for questioning. He was again given Miranda warnings and was told that his brother, Murphy, and another suspect had all confessed to the robbery and that he had been implicated. He was also shown the weaponá used in the robbery. Confronted with these matters, petitioner gave a written statement revealing his participation in the robbery.

Petitioner was convicted. His confession was the principal evidence against him. The Appellate Division reversed, holding that petitioner’s confession should have been excluded from evidence as the product of an illegal arrest. 171 N. J. Super. 543, 547-548, 410 A. 2d 259, 262 (1979). The Supreme Court of New Jersey reinstated the judgment of conviction. It agreed with the lower court that the arrest was illegal because “the police at that time were without probable cause to arrest,” 86 N. J. 80, 88, 429 A. 2d 581, 585 (1981), but went on to determine whether the confession resulted from exploiting the illegal arrest or instead was the product of petitioner’s free will, the taint of the illegal arrest having been removed. The court held that the intervening circumstances, including Murphy’s confession and the recovery of the guns used in the robbery, severed any causal link between the illegal arrest and the subsequent confession and therefore the confession was properly admitted. Other courts have arrived at very similar results, but I have serious doubt that these cases can be squared with our own recent decisions.

In order for a statement given to police after an illegal arrest to be admissible at trial, the statement must not only be voluntary by Fifth Amendment standards, but it must also not be the result of exploiting the illegal arrest; rather, it must be “an act of free will [sufficient] to purge the primary taint.” Wong Sun v. United States, 371 U. S. 471, 486 (1963); Brown v. Illinois, 422 U. S. 690, 602 (1975). Brown held that Miranda warnings, by themselves, cannot always make a confession “sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession.” 422 U. S., at 603. By focusing on the causal connection between an illegal arrest and a subsequent confession, Brown sought to implement the policies behind the use of the exclusionary rule to effectuate the Fourth Amendment. Dunaway v. New York, 442 U. S. 200, 218-219 (1979). It identified three factors for determining whether it is necessary to exclude a confession obtained following an illegal arrest: “The temporal proximity of the arrest and the confession, the presence of intervening circumstances, . . . and, particularly, the purpose and flagrancy of the official misconduct are all relevant.” Brown v. Illinois, supra, at 603-604 (footnotes omitted).

Brown obviously raises serious questions about the admissibility of petitioner’s confession. That petitioner confessed after being held for 18 hours while the defendant in Brown confessed after only 2 hours is not dispositive. As Justice Stevens has observed: “The temporal relationship between the arrest and the confession may be an ambiguous factor. If there are no relevant intervening circumstances, a prolonged detention may well be a more serious exploitation of an illegal arrest than a short one.” Dunaway v. New York, supra, at 220 (concurring opinion). See also Hale v. Henderson, 485 F. 2d 266, 267-269 (CA6 1973), (ordering suppression of statement made 42 hours after illegal arrest), cert. denied, 415 U. S. 930 (1974), cited in Brown v. Illinois, supra, at 603, n. 8; 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 633-634 (1978).

The court below held that the causal chain between the illegal arrest and the confession was broken by disclosing Murphy’s confession to petitioner and showing him the weapons used in the robbery. But in Brown, as here, the police gave the defendant Miranda warnings, confronted him with the evidence they had against him, and this Court held the ensuing confession was inadmissible. 422 U. S., at 594. The events between the illegal arrest and the confession were characterized in unequivocal terms: “Brown’s first statement was separated from his illegal arrest by less than two hours, and there was no intervening event of significance whatsoever.” Id., at 604 (emphasis added). We have thus rejected the notion that the causal chain between an illegal arrest and a subsequent confession is broken by merely confronting the accused with evidence of his guilt in an effort to elicit an incriminating response. Rather, “some demonstrably effective break in the chain of events leading from the illegal arrest to the statement” is required. Id., at 611 (Powell, J., concurring in part). See Johnson v. Louisiana, 406 U. S. 356, 365 (1972) (appearance before neutral magistrate and representation by counsel at lineup purged lineup of taint from illegal arrest), cited in Brown v. Illinois, supra, at 604. See also Wong Sun v. United States, supra, at 491 (actual release from detention prior to confession breaks chain).

In terms of the purposes of the exclusionary rule, allowing a confrontation such as occurred in this case to qualify as an intervening circumstance would permit the police to seize and detain any person without probable cause, secure in the knowledge that a confession later obtained by confronting the accused with evidence against him would be admissible. . I had thought that this is what the Court sought to prevent in Brown and Dunaway, since “[hjostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment.” Dunaway v. New York, supra, at 213.

The third Brown factor to be considered is the purpose and flagrancy of the police conduct. Although the police conduct here was not designed to cause fright and confusion as it was in Brown, 422 U. S., at 605, the police admittedly lacked probable cause to arrest petitioner, and the purpose of the arrest was to detain “in the hope that something might turn up.” Ibid. This purpose is itself sufficient to exclude a confession, absent a sufficient intervening event. Dunaway v. New York, supra, at 218.

Perhaps the decision below should stand, but the tension between it and our own cases such as Brown is apparent, and it should either be reversed or our own decisions reconsidered and modified. I would grant the petition for certiorari.

       See, e. g., In re R. S., 93 Ill. App. 3d 941, 418 N. E. 2d 195 (1981); People v. Finch, 86 Ill. App. 3d 493, 408 N. E. 2d 87 (1980); People v. Emanuel, 98 Mich. App. 163, 295 N. W. 2d 875 (1980); People v. Gabbard, 78 Ill. 2d 88, 398 N. E. 2d 574 (1979); State v. Lewis, 19 Wash. App. 35; 573 P. 2d 1347 (1978); Commonwealth v. Bogan, 482 Pa. 151, 393 A. 2d 424 (1978); but cf. United States v. Butler, 495 F. Supp. 679 (ED Ark. 1980).

       As one commentator has suggested: “[I]n light of the inherent difficulties in establishing that police acted with an improper motive, it does not follow from this that an otherwise inadmissible confession deserves to be admitted into evidence simply because there has been no showing of a flagrant and purposeful Fourth Amendment violation. This is a factor, not the controlling factor . . . and thus must be considered with . . . ‘the presence of intervening circumstances.’ ” 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 636-636 (1978) (footnotes omitted).


author: Justice Brennan and Justice Marshall,

text:
    No. 81-5107.
    No. 81-5338.
    Tucker v. Zant, Superintendent, Georgia Diagnostic and Classification Center. Straight v. Florida.
   Super. Ct. Ga., Butts County; and

Sup. Ct. Fla. Certiorari denied. Reported below: No. 81-5338, 397 So. 2d 903.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 81-5136.
    Edwards v. Ohio.
   Ct. App. Ohio, Montgomery County. Certiorari denied.

Justice Brennan would grant certiorari.


text:
    No. 80-1322.
    Familia de Boom et al. v. Arosa Mercantil, S. A., et al.,
   451 U. S. 1008. Motion for leave to file petition for rehearing denied.

Justice O’Con-nor took no part in the consideration or decision of this motion.


text:
    No. 80-6647.
    No. 81-5051.
    McColpin v. Lamunyon, In re McGean,
   ante, p. 842; and ante, p. 869. Petitions for rehearing denied. Justice O’Connor took no part in the consideration or decision of these petitions.