New York v. Harris/Dissent Marshall

by Thurgood Marshall

Justice MARSHALL, with whom Justice BRENNAN, Justice BLACKMUN and Justice STEVENS join, dissenting.

Police officers entered Bernard Harris' home and arrested him there. They did not have an arrest warrant, he did not consent to their entry, and exigent circumstances did not exist. An arrest in such circumstances violates the Fourth Amendment. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); see also ante, at 16, 17. About an hour after his arrest, Harris made an incriminating statement, which the government subsequently used at his trial. The majority concedes that the fruits of that illegal entry must be suppressed. See ante, at 20. The sole question before us is whether Harris' statement falls within that category.

The majority answers this question by adopting a broad and unprecedented principle, holding that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." Ante, this page. The majority's conclusion is wrong. Its reasoning amounts to nothing more than an analytical sleight of hand, resting on errors in logic, misreadings of our cases, and an apparent blindness to the incentives the Court's ruling creates for knowing and intentional constitutional violations by the police. I dissent.

* In recent years, this Court has repeatedly stated that the principal purpose of the Fourth Amendment's exclusionary rule is to eliminate incentives for police officers to violate that Amendment. See, e.g., United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3411, 82 L.Ed.2d 677 (1984). A police officer who violates the Constitution usually does so to obtain evidence that he could not secure lawfully. The best way to deter him is to provide that any evidence so obtained will not be admitted at trial. Deterrence of constitutional violations thus requires the suppression not only of evidence seized during an unconstitutional search, but also of "derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search." Murray v. United States, 487 U.S. 533, 536-537, 108 S.Ct. 2529, 2532-2533, 101 L.Ed.2d 472 (1988) (citing Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939)); see also Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Not all evidence connected to a constitutional violation is suppressible, however. Rather, the Court has asked " 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " Ibid. (quoting J. Maguire, Evidence of Guilt 221 (1959)). Accord, Brown v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 2259, 45 L.Ed.2d 416 (1975); Dunaway v. New York, 442 U.S. 200, 217-218, 99 S.Ct. 2248, 2259-2260, 60 L.Ed.2d 824 (1979); Taylor v. Alabama, 457 U.S. 687, 690, 102 S.Ct. 2664, 2667, 73 L.Ed.2d 314 (1982).

Because deterrence is a principal purpose of the exclusionary rule, our attenuation analysis must be driven by an understanding of how extensive exclusion must be to deter violations of the Fourth Amendment. We have long held that where police have obtained a statement after violating the Fourth Amendment, the interest in deterrence does not disappear simply because the statement was voluntary, as required by the Fifth Amendment. See, e.g., Brown, supra, 422 U.S., at 601-602, 95 S.Ct., at 2260-2261; Dunaway, supra, 442 U.S., at 216-217, 99 S.Ct., at 2258-2259; Taylor, supra, 457 U.S., at 690, 102 S.Ct., at 2667. Police officers are well aware that simply because a statement is "voluntary" does not mean that it was entirely unaffected by the Fourth Amendment violation. See Brown, supra, 422 U.S., at 601-602, 95 S.Ct., at 2260-2261. Indeed, if the Fourth Amendment required exclusion only of statements taken in violation of the Fifth Amendment, the Fourth Amendment would serve no independent purpose. A regime that suppresses only some fruits of constitutional violations is a regime that barely begins to eliminate the incentives to violate the Constitution.

When faced with a statement obtained after an illegal arrest, then, a court will have occasion to engage in the attenuation inquiry only if it first determines that the statement is "voluntary," for involuntary statements are suppressible in any event. Attenuation analysis assumes that the statement is "voluntary" and asks whether the connection between the illegal police conduct and the statement nevertheless requires suppression to deter Fourth Amendment violations. That question cannot be answered with a set of per se rules. An inquiry into whether a suspect's statement is properly treated as attributable to a Fourth Amendment violation or to the suspect's independent act of will has an irreducibly psychological aspect, and irrebuttable presumptions are peculiarly unhelpful in such a context. Accordingly, we have identified several factors as relevant to the issue of attenuation: the length of time between the arrest and the statement, the presence of intervening circumstances, and the "purpose and flagrancy" of the violation. See, e.g., Brown, supra, 422 U.S., at 603-604, 95 S.Ct., at 2261-2262.

We have identified the last factor as "particularly" important. 422 U.S., at 604, 95 S.Ct., at 2262. When a police officer intentionally violates what he knows to be a constitutional command, exclusion is essential to conform police behavior to the law. Such a "flagrant" violation is in marked contrast to a violation that is the product of a good-faith misunderstanding of the relevant constitutional requirements. This Court has suggested that excluding evidence that is the product of the latter variety of violation may result in deterrence of legitimate law enforcement efforts. See Leon, supra, 468 U.S., at 918-920, 104 S.Ct., at 3418-3419. Underlying this view is the theory that officers fear that if their judgment as to the constitutionality of their conduct turns out to be wrong, the consequences of their misjudgments may be too costly to justify the possible law enforcement benefits. Any doubt concerning the constitutionality of a course of action will therefore be resolved against that course of action. Whatever the truth of that theory, ^[1] the concern that officers who act in good faith will be overdeterred is nonexistent when, based on a cynical calculus of the likely results of a suppression hearing, an officer intentionally decides to violate what he knows to be a constitutional command.

An application of the Brown factors to this case compels the conclusion that Harris' statement at the station house must be suppressed. About an hour elapsed between the illegal arrest and Harris' confession, without any intervening factor other than the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This Court has held, however, that "Miranda warnings, alone and per se, . . . cannot assure in every case that the Fourth Amendment violation has not been unduly exploited." Brown, supra, 422 U.S., at 603, 95 S.Ct., at 2261 (citing Westover v. United States, decided with Miranda v. Arizona, supra, 384 U.S., at 496-497, 86 S.Ct., at 1639). See also supra, at 22-23. Indeed, in Brown, we held that a statement made almost two hours after an illegal arrest, and after Miranda warnings had been given, was not sufficiently removed from the violation so as to dissipate the taint. 422 U.S., at 604, 95 S.Ct., at 2262.

As to the flagrancy of the violation, petitioner does not dispute that the officers were aware that the Fourth Amendment prohibited them from arresting Harris in his home without a warrant. Notwithstanding the officers' knowledge that a warrant is required for a routine arrest in the home,

"the police went to defendant's apartment to arrest him and, as the police conceded, if defendant refused to talk to them there they intended to take him into custody for questioning. Nevertheless, they made no attempt to obtain a warrant although five days had elapsed between the killing and the arrest and they had developed evidence of probable cause early in their investigation. Indeed, one of the officers testified that it was departmental policy not to get warrants before making arrests in the home. From this statement a reasonable inference can be drawn . . . that the department's policy was a device used to avoid restrictions on questioning a suspect until after the police had strengthened their case with a confession. Thus, the police illegality was knowing and intentional, in the language of Brown, it 'had a quality of purposefulness,' and the linkage between the illegality and the confession is clearly established." 72 N.Y.2d 614, 622, 536 N.Y.S.2d 1, 6, 532 N.E.2d 1229, 1233-1234 (1988) (citation omitted). ^[2]

In short, the officers decided, apparently consistent with a "departmental policy," to violate Harris' Fourth Amendment rights so they could get evidence that they could not otherwise obtain. As the trial court held, "No more clear violation of [Payton ], in my view, could be established." App. 20. Where, as here, there is a particularly flagrant constitutional violation and little in the way of elapsed time or intervening circumstances, the statement in the police station must be suppressed.

Had the Court analyzed this case as our precedents dictate that it should, I could end my discussion here-the dispute would reduce to an application of the Brown factors to the constitutional wrong and the inculpatory statement that followed. But the majority chooses no such unremarkable battleground. Instead, the Court redrafts our cases in the service of conclusions they straightforwardly and explicitly reject. Specifically, the Court finds suppression unwarranted on the authority of its newly fashioned per se rule. In the majority's view, when police officers make a warrantless home arrest in violation of Payton, their physical exit from the suspect's home necessarily breaks the causal chain between the illegality and any subsequent statement by the suspect, such that the statement is admissible regardless of the Brown factors. ^[3]

The Court purports to defend its new rule on the basis of the self-evident proposition that the Fourth Amendment does not necessarily require the police to release or to forgo the prosecution of a suspect arrested in violation of Payton. Ante, at 18. To the Court, it follows as a matter of course from this proposition that a Payton violation cannot in any way be the "cause" of a statement obtained from the suspect after he has been forced from his home and is being lawfully detained. Because an attenuation inquiry presupposes some connection between the illegality and the statement, the Court concludes that no such inquiry is necessary here. Ante, at 18. Neither logic nor precedent supports that conclusion.

Certainly, the police were not required to release Harris or forgo his prosecution simply because officers arrested him in violation of Payton. But it is a dramatic leap from that unexceptionable proposition to the suggestion that the Payton violation thus had no effect once the police took Harris from his home. The Court's view to the contrary appears to rest on a cramped understanding of the purposes underlying Payton. The home is a private place, more private than any other. An invasion into the home is therefore the worst kind of invasion of privacy. An intrusion into that sanctum is an assault on the individual's solitude and on the family's communal bonds. As we said in Payton:

"The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home-a zone that finds its roots in clear and specific constitutional terms: 'The right of the people to be secure in their . . . houses . . . shall not be violated.' That language unequivocally establishes the proposition that '[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' " 445 U.S., at 589-590, 100 S.Ct., at 1381-1382 (ellipses in original) (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 (1961)).

See also California v. Ciraolo, 476 U.S. 207, 212-213, 106 S.Ct. 1809, 1812, 90 L.Ed.2d 210 (1986) ("The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened").

The majority's per se rule in this case fails to take account of our repeated holdings that violations of privacy in the home are especially invasive. Rather, its rule is necessarily premised on the proposition that the effect of a Payton violation magically vanishes once the suspect is dragged from his home. But the concerns that make a warrantless home arrest a violation of the Fourth Amendment are nothing so evanescent. A person who is forcibly separated from his family and home in the dark of night after uniformed officers have broken down his door, handcuffed him, and forced him at gunpoint to accompany them to a police station does not suddenly breathe a sigh of relief at the moment he is dragged across his doorstep. Rather, the suspect is likely to be so frightened and rattled that he will say something incriminating. These effects, of course, extend far beyond the moment the physical occupation of the home ends. The entire focus of the Brown factors is to fix the point at which those effects are sufficiently dissipated that deterrence is not meaningfully advanced by suppression. The majority's assertion, as though the proposition were axiomatic, that the effects of such an intrusion must end when the violation ends is both undefended and indefensible. The Court's saying it may make it law, but it does not make it true.

The majority's reading of our cases similarly lacks foundation. In the majority's view, our attenuation cases are not concerned with the lingering taint of an illegal arrest; rather, they focus solely on whether a subsequently obtained statement is made during an illegal detention of the suspect. Ante, at 18-19 (quoting 72 N.Y.2d, at 625, 536 N.Y.S.2d, at 7, 532 N.E.2d, at 1235 (Titone, J., concurring)). In the Court's view, if (and only if) the detention is illegal at the moment the statement is made will it be suppressed. Unlike an arrest without probable cause, a Payton violation alone does not make the subsequent detention of the suspect illegal. Thus, the Court argues, no statement made after a Payton violation has ended is suppressible by reason of the Fourth Amendment violation as long as the police have probable cause. ^[4]

The majority's theory lacks any support in our cases. In each case presenting issues similar to those here, we have asked the same question: whether the invasion of privacy occasioned by the illegal arrest taints a statement made after the violation has ended-stated another way, whether the arrest caused the statement. See, e.g., Wong Sun, 371 U.S., at 485-488, 83 S.Ct., at 416-418; Brown, 422 U.S., at 591-592, 599, 603, 95 S.Ct., at 2255-2256, 2259, 2261; Dun- away, 442 U.S., at 217, 218, 99 S.Ct., at 2259, 2260; Taylor, 457 U.S., at 690, 694, 102 S.Ct., at 2667, 2669. Never before today has this Court asked whether the illegality itself was continuing at the time the evidence was secured. See Leon, 468 U.S., at 911, 104 S.Ct., at 3414 (WHITE, J., for the Court) ("In short, the 'dissipation of the taint' concept that the Court has applied in deciding whether exclusion is appropriate in a particular case 'attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost' ") (citation omitted).

Indeed, such an approach would render irrelevant the first and second of the Brown factors, which focus, respectively, on the passage of time and the existence of intervening factors between the illegality and the subsequently obtained statement. If, as the majority claims, the Brown analysis does not even apply unless the illegality is ongoing at the time the evidence is secured, no time would ever pass and no circumstance would ever intervene between the illegality and the statement.

The only Supreme Court case in which the majority even attempts to find support is United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). Crews, however, is inapposite. In that case, the defendant moved to suppress a witness's in-court identification of him on the ground that he had been illegally arrested. Crews' theory was that he was the fruit of his own illegal arrest-that he himself should have been "suppressed." Because no identification of him could have been made if he were not in the courtroom, his argument proceeded, that identification had to be suppressed in turn. The Court rejected Crews' argument:

"Insofar as [Crews] challenges his own presence at trial, he cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. The exclusionary principle of Wong Sun and Silverthorne Lumber Co. [v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920),] delimits what proof the Government may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness. [Crews] is not himself a suppressible 'fruit,' and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct." 445 U.S., at 474, 100 S.Ct., at 1251 (citations omitted; footnote omitted; emphases added).

Seen in context, the majority's misuse of Crews is apparent. As in Wong Sun, Brown, and Taylor, Harris seeks to suppress evidence-a statement he made one hour after his arrest. He does not contend that he cannot be tried because he was arrested illegally, nor does he in any way link his demand for suppression of his statement to a claim that his presence at trial, or anywhere else, should somehow be suppressed. Crews is therefore irrelevant. The only authority the majority cites that directly supports its novel view of Brown is a concurring opinion in the New York Court of Appeals, ante, at 19, which is hardly a sufficient basis on which to reject almost 30 years of cases.

Perhaps the most alarming aspect of the Court's ruling is its practical consequences for the deterrence of Payton violations. Imagine a police officer who has probable cause to arrest a suspect but lacks a warrant. The officer knows if he were to break into the home to make the arrest without first securing a warrant, he would violate the Fourth Amendment and any evidence he finds in the house would be suppressed. Of course, if he does not enter the house, he will not be able to use any evidence inside the house either, for the simple reason that he will never see it. The officer also knows, though, that waiting for the suspect to leave his house before arresting him could entail a lot of waiting, and the time he would spend getting a warrant would be better spent arresting criminals. The officer could leave the scene to obtain a warrant, thus avoiding some of the delay, but that would entail giving the suspect an opportunity to flee.

More important, the officer knows that if he breaks into the house without a warrant and drags the suspect outside, the suspect, shaken by the enormous invasion of privacy he has just undergone, may say something incriminating. Before today's decision, the government would only be able to use that evidence if the Court found that the taint of the arrest had been attenuated; after the decision, the evidence will be admissible regardless of whether it was the product of the unconstitutional arrest. ^[5] Thus, the officer envisions the following best-case scenario if he chooses to violate the Constitution: He avoids a major expenditure of time and effort, ensures that the suspect will not escape, and procures the most damaging evidence of all, a confession. His worst-case scenario is that he will avoid a major expenditure of effort, ensure that the suspect will not escape, and will see evidence in the house (which would have remained unknown absent the constitutional violation) that cannot be used in the prosecution's case in chief. The Court thus creates powerful incentives for police officers to violate the Fourth Amendment. In the context of our constitutional rights and the sanctity of our homes, we cannot afford to presume that officers will be entirely impervious to those incentives.

I dissent.

Notes

1. This Court has never held that an officer's good-faith misunderstanding of the law justifies the admission of unconstitutionally seized evidence except in the limited context of the officer's good-faith and objectively reasonable reliance on a facially valid warrant issued by a neutral and detached magistrate. United States v. Leon, 468 U.S. 897, 925-926, 104 S.Ct. 3405, 3421-3422, 82 L.Ed.2d 677 (1984). Even in that limited context, I think that suppression is required. See id., at 928-960, 104 S.Ct., at 3430-3445 (BRENNAN, J., dissenting).
2. The "restrictions on questioning" to which the court refers are restrictions imposed by New York law. New York law provides that an arrest warrant may not issue until an "accusatory instrument" has been filed against the suspect. N.Y.Crim.Proc.Law § 120.20 (McKinney 1981). The New York courts have held that police officers may not question a suspect in the absence of an attorney once such an accusatory instrument has been filed. People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344 (1980). These two rules operate to prohibit police from questioning a suspect after arresting him in his home unless his lawyer is present. If the police comply with Payton, the suspect's lawyer will likely tell him not to say anything, and the police will get nothing. On the other hand, if they violate Payton by refusing to obtain a warrant, the suspect's right to counsel will not have attached at the time of the arrest, and the police may be able to question him without interference by a lawyer. The lower court's inference that a departmental policy of violating the Fourth Amendment existed was thus fully justified.
3. The Court has a caveat of sorts. It holds that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." Ante, at 21 (emphasis added). But the caveat adds nothing. As the Court concedes, it is unconstitutional for the police to hold a suspect without probable cause, and any statement made during a detention for which probable cause is lacking "is unquestionably the product of [the] illegal governmental activity-i.e., the wrongful detention." Ante, at 19. (internal quotation marks omitted; citation omitted). Thus, the Court concedes that any statement taken from a suspect who is in custody without probable cause must be suppressed, irrespective of whether there was an antecedent Payton violation.
4. The Court assures us that it does not hold "that a statement taken by the police while a suspect is in custody is always admissible as long as the suspect is in legal custody." Ante, at 20. Rather, such statements "would of course be inadmissible if, for example, they were the product of coercion, if Miranda warnings were not given, or if there was a violation of the rule of Edwards v. Arizona, 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378] (1981)." Ibid. As the majority is no doubt well aware, each of these examples constitutes a violation of the Fifth Amendment. But suppressing the consequences of a violation of the Fifth Amendment does nothing to deter violations of the Fourth. See, supra, at 23. The Court's disclaimer thus only serves to reinforce the conclusion that its ruling rests on the still-undefended premise that the effects of Payton violations end at the suspect's doorstep.
5. Indeed, if the officer, as here, works in New York State, the Court's assertion that "[i]t is doubtful therefore that the desire to secure a statement from a criminal suspect would motivate the police to violate Payton," ante, at 21, takes on a singularly ironic cast. The court below found as a matter of fact that the officers in this case had intentionally violated Payton for precisely the reason the Court identifies as "doubtful." See n. 2, supra, and accompanying text.