*1 UNITED STATES PAYNER Argued February 20, No. 78-1729. 1980 Decided June *2 J., opinion Powell, Court, J., delivered the of the in which C. Burger, JJ., joined. Burger, and Stewart, White, Rehnquist, and Stevens, J., post, concurring p. C. filed a opinion, J., 737. filed a dis- Marshall, senting opinion, JJ., joined, post, in which Brennan and Blackmun, p. 738.
Solicitor General McCree argued the cause for the United him States. With brief Attorney on the were Assistant Gen- Ferguson, eral Lindsay, Robert E. James A. Bruton. argued Bennet Kleinman for respondent. the cause With him on the brief were Bernard Stuplinski J. H. Michael Diamant.
Mr. Justice Powell opinion delivered the of the Court. question The is whether properly sup- the District Court pressed the fruits of an unlawful search did not invade respondent’s rights.
I Respondent Payner Jack September was indicted in on charge a of falsifying his federal income tax return in violation of 18 U. § S. 1001.1 The indictment alleged C. respondent maintaining denied foreign a bank account at time when he knew that he had such an account at the Castle Bank Company and Trust Bahama Nassau, Islands. The heavily Government’s case rested on guarantee a loan agreement April dated respondent in which 28, 1972, pledged
1 Title provides part: 18 U. S. C. in relevant § “Whoever, any jurisdiction matter any within the department or agency of the knowingly willfully any United States . false, . . makes fictitious or fraudulent representations, statements or . . . shall be fined not $10,000 more imprisoned than or years, more than five or both.” $100,000 for a security funds in his Castle Bank account
loan. moved to trial and jury right waived his
Respondent consent With the agreement. suppress guarantee (cid:127) Northern for the District States parties, hearing motion at took on the of Ohio found court on the merits. The trial consolidated the evidence. of all charged on the basis respondent guilty as discov- the Government found, however, court also flagrantly by exploiting a agreement guarantee ered the there- court January occurred on search that by the case in the introduced suppressed fore “all evidence tax Payner’s exception of Jack with the Supp. testimony.” 434 F. . related return . . and the *3 to insufficient alone was return As the tax aside Court set the District falsification, knowing demonstrate conviction.2 respondent’s dispute. are not 1973 search leading up
The events to the investiga- launched an In Revenue Service 1965, the Internal in the citizens American of tion into the financial activities Winds,” Trade “Operation known as project, Bahamas. The on focused Suspicion Jacksonville, Fla. headquartered was a learned investigators the Bank in when Castle Special account there. trafficker had an suspected narcotics Norman asked office of the Jacksonville Agent Richard Jaffe to informant, investigator and occasional private a Casper, depositors. Bank its Castle he could about the learn what Castle friendship with Casper cultivated his To that end, consolidated sequence byproduct of the rulings was a unusual of initially failed The court Court. hearing conducted the District simply evidence, it close of the judgment At the on the merits. enter Appeals of suppress. After motion granted respondent’s juris appeal for want Circuit dismissed Government’s for the Sixth the motion to granting diction, the order Court vacated the District guilty. then reinstated The court a suppress and entered verdict Respondent not chal does aside the and set verdict. suppression order procedures. lenge these
Bank vice president Michael Casper Wolstencroft. intro- duced Sybol private investigator Wolstencroft a Kennedy, and former employee. When Casper discovered that banker spend intended to a days few in Miami in January 1973, he devised a to gain scheme bank access records he knew Wolstencroft would carrying be in his briefcase. Agent Jaffe approved the basic the plan. outline
Wolstencroft arrived January Miami on 15 and went directly Kennedy’s apartment. p. 7:30 At about m., the Key two dinner Biscayne Shortly left at a restaurant. thereafter, Casper apartment using key supplied entered the by Kennedy. He removed the briefcase delivered it to Jaffe.' agent supervised copying While the approxi- mately 400 documents taken from briefcase, “lookout” Kennedy observed and Wolstencroft dinner. The observer Casper pair notified when the left and the restaurant, briefcase replaced. photographed documents evening included papers evidencing working a close relation- ship between Bank Castle Bank Fla. Perrine, and the Subpoenas issued Bank ultimately to the of Perrine uncovered guarantee agreement loan in this at issue case.
The District Court found States, acting the United willfully “knowingly participated Jaffe, Id., unlawful seizure of Michael Wolstencroft’s briefcase....” to that “the According court, Government affirma- tively agents counsels its Amendment stand- *4 ing permits purposefully limitation them an conduct unconstitutional and seizure individual search of one order Id., obtain . . .” parties. evidence third at 132- 133. The also found District Court that the documents seized provided from that ultimately Wolstencroft leads led discovery to the of the critical loan guarantee agreement. Id., Although impinge upon at search did not 123.3
3 argued in the Ap The United States District Court and the Court of peals agreement independent guarantee discovered an investigation by the briefcase untainted search. The Government also
731 Court the District rights, Fourth Amendment respondent's Fifth Amend- Process Clause believed the Due courts of the federal supervisory power and the inherent ment by the Government’s evidence tainted required it to exclude hostility any person’s bad “knowing purposeful faith id., at Id., see 129; at rights.” fundamental constitutional 134-135. 133, Circuit affirmed Appeals for the Sixth
The Court
super-
of its
use
Court’s
endorsing the District
brief order
curiam). (per
(1979)
visory power.
II
“standing
invoke
This Court discussed the doctrine
in some detail last
rule”
exclusionary
Amendment]
[Fourth
(1978).
138
We
Illinois,
Rakas
439
Term.
v.
may not exclude
court
that a
the established rule
reaffirmed
unless it finds
Amendment
under
Fourth
con-
own
defendant’s
or seizure violated
unlawful search
Brown
g.,
v.
Id.,
See, e.
133-140.
rights.
stitutional
Alderman v.
(1973);
States, United
229-230
S.U.
Simmons
v.
(1969);
States,
171-172
United
S.U.
defend-
And the
States,
(1968).
United
732 illegally from suppress the documents seized Appeals The Court of 434 F.
Wolstencroft.
not
conclusion that “Jack
did
disturb the
Court’s
Payner possessed
privacy interest in
Castle Bank docu-
no
Ibid.;
from Wolstencroft.”
ments that were seized
see 590
Miller,
do
2d,
F.
207. Nor
we. United States v.
425
depositor
expec-
435
established that a
has no
(1976),
privacy
“protectable
of
thus no
tation
Amend-
in
of
copies
deposit slips
interest”
checks
ment
retained
Id.,
id.,
his
442.
Nothing
bank.
see
in the
437;
contrary
supports
record
conclusion
this case.4
4
persuaded
respondent’s suggestion
We are not
that the Bahamian
secrecy
expectation
privacy
present
of bank
creates an
law
of
Miller,
(1976).
outset,
United States v.
“(1) Except purpose performance for the of his duties or the lawfully required exercise of his functions under this Act or when do so by any competent jurisdiction court Colony within or under the provisions any law, person any shall no disclose relating information acquired the affairs of . . . customer of a bank he which has in the performance of or his duties the exercise of his functions under this Act.” Companies also Regulation Act, Acts, See the Banks Trust 1965 Bah. 64, 10, amended, Acts, Acts, No. 1968 Bah. No. 1969 Bah. No. § Acts, Bah. hardly No. guarantee statute is a blanket privacy. application limited; Its exceptions; is hedged with and we authority construing been directed no Moreover, have its terms. requires depositors country American that their know own them report relationships foreign financial §1121; 31 U. institutions. C. S. (1979). generally Shultz, CFR See Bankers §103.24 Assn. v. California 59-63, 416 U. S. respondent We conclude that lacked expectation privacy reasonable Bank Castle records that docu- mented his account. *6 how- Appeals Court the of believed, District
ever, power supervisory federal court should use its suppress by gross did illegalities evidence tainted United infringe rights. constitutional the defendant’s States in this case— approach- applied contends that this —as upsets the Fourth careful balance of interests embodied the of this Court. In the Government’s decisions such enable supervisory power an extension of would the view, their federal discretion courts to exercise a standardless exclusionary enforce the application of the rule to agree Amendment. We with Government.
Ill Court’s commend- certainly We can understand the of privacy into able desire deter intrusions deliberate in a criminal persons become unlikely who are defendants 434 prosecution. Supp., at 135. No court should See F. possibly criminal behavior condone the unconstitutional 5 caper.” planned of those and executed this “briefcase who security persons fundamental value property “The of remains a respect. should those who flout which law must Nor enforcement officers escape v. rules unscathed.” Alderman United impro investigated Congress note that in 1976 We Hearings Op prieties Oversight into revealed in record. See Committee House erations IRS before Subcommittee Project Haven, and Tradewinds, Operations (Operation on Government (1975). As a Program), Cong., Tax 94th 1st Sess. Narcotics Traffickers Operation Trade result, the of Internal Revenue “called off” Commissioner guidelines Arg. adopted Tr. Oral 35. The Commissioner also Winds. requirements require agents informants of the law to instruct on officer, report illegalities in turn and to known to a who is notify 9373.3 appropriate authorities. IR Manual directed state §§ 9-21, 1977). (Manual Although these (3), Transmittal Dec. 9373.4 positive expect might than appear on their face to be less one measures they disap charged upholding law, do agency indicate from implemented been in this case. We proval practices found to have conduct, brought lawless if to the attention assume that similar cannot denuncia- replete with Court are of this the decisions Indeed, name in the undertaken willfully activities lawless tions Denno, 378 U. g., S. Jackson E. of law enforcement. States, 277 U. S. Olmstead v. (1964); see also show cases But our dissenting). J., (1928) (Brandéis, the ex- not command do principles unexceptional these they illegality. every Instead, case of of evidence clusion would harm that considerable weighed against must be exclusionary rule. of an application from indiscriminate flow to those been restricted rule “has exclusionary Thus, *7 efficaciously objectives are most remedial areas where its 348 414 S. Calandra, v. U. States served.” United suppression acknowledged has The Court (1974). upon toll costly exacts a evidence but probative of tainted criminal the truth a case. ascertain ability of courts to States v. 137-138; United Illinois, at g., S., E. v. 439 U. Rakas Powell, v. (1978); Stone 275-279 Ceccolini, 435 U. S. Tucker, 417 Michigan (1976); see v. 428 S. 489-491 U. consistently Our cases have (1974).6 450-451 exclusionary unbending application recognized rectitude would governmental of to enforce ideals sanction judge truth-finding functions impede unacceptably the States Powell, 485-489; United g., supra, v. jury. E. Stone defendant, After it is the Calandra, supra, all, v. who stands trial. constable, not the a are at risk when criminal interests
The same societal suppress evidence supervisory power defendant invokes party’s rights. constitutional of a third violation seized applied with some caution even supervisory power require appropriately. officials, not be dealt with To responsible would highly probative suppression of evidence a trial in addition the unnecessarily. penalize society party a third would 6 States, (1969) v. 217, 237-238 S. See also U. Kaufman Oaks, Exclusionary dissenting); Studying Rule in Search (Black, J., (1970). 665, 736-746, 755-756 Seizure, 37 Chi. L. Rev. U. rights.7 a when the defendant asserts violation his own Caceres, (1979), In United States v. S. 741, U. of an we refused exclude all evidence tainted violations States, department’s executive rules. And in Elkins United v. 364 U. the Court called for a restrained (1960), S. 206, application supervisory power.
“[A]ny apparent upon process limitation of discover- only truth in ing ought imposed upon a trial federal be genera] basis of outweigh considerations which and rele- competent need untrammeled disclosure justice.” vant evidence in court of Ibid. States,
See also Nardone v. United 308 U. S. authorize We conclude that the does power suppress federal court otherwise admissible on a third ground unlawfully from was seized party not before the deci- court. Our beyond have interest any sions established doubt deterring justify the searches does not exclusion party not the tainted evidence at instance of a who was practices. Illinois, supra, victim of the Rakas challenged S., Alderman v. United 174-175.8 137; U. *8 7 may supervisory power Federal courts their use in some circum stances to exclude evidence taken from disobedi the “willful defendant States, McNabb United 332, (1943); ence of law.” v. 318 S. 345 see U. States, States, Elkins v. United Rea v. United 206, (1960); 364 U. S. 223 Hampton States, 214, v. United (1956); 350 216-217 425 U. S. U. S. cf. (Powell, (1976) 484, J., concurring judgment). 495 in This Court has held, however, supervisory never power suppression that the of authorizes parties Constitution, statute, evidence obtained from third of violation supervisory or power merely supervise rule. The permits federal courts justice” among parties “the administration of the the criminal before bar. supra, States, v. United McNabb 8 preventing “The deterrent values of the incrimination of whose those rights police justify the have violated have been considered sufficient the suppression probative though of evidence even the case the destroyed. defendant is judgment. weakened or We adhere But change competing to the interests do assigned The values the question under analyze a court the has elected because In power of Fourth Amendment. instead the supervisory and the underlying conduct the need to deter the case, either pre- excluding the evidence remain impact detrimental cisely the same. when it therefore,
The District concluded erred, Court extending exclu the are not convinced that the additional benefits we upon sionary justify rule other would further encroachment defendants having them prosecuting interest of crime and public the those accused exposes acquitted the or on the basis of all the evidence which convicted Stone S., truth.” Alderman United at also v. 394 U. 174-175. See Calandra, Powell, (1976); v. U. S. 488-489 United States v. (1974). dissent, post, 746, urges the at the balance of interests under cases, power supervisory differs from that in Alderman and like considered supervisory power upon protect the because the the “need to focuses integrity Although of the in this case federal courts.” rationale, power upon agree supervisory a deterrent relied we judicial illegality purpose deterring protecting the “twofold” serves integrity. post, recognizes, however, See at 744. As dissent Ibid., exclusionary precisely purposes. serves rule same alia, Dunaway York, (1979), and citing, inter New 442 U. v. S. Mapp Ohio, Thus, Amend- the Fourth v. U. S. exclusionary rule, supervisory part “to power, applied ment is like integrity court, the constitu- protect than to vindicate rather rights Post, 747; Stone v. generally tional . . .” at see defendant. Powell, supra, Calandra, supra, States 486; case, respondent’s
In this where the conduct did not violate the judicial integrity deterring such rights, preserving the interest in and in outweighed by presenting probative evi- the societal interest in g., supra; also, e. trier paragraph, dence to the to fact. See the first see Powell, supra, the cases the dis- Stone v. at 485-486. None of cited contrary view, sent, post, supports since of those cases none criminal who themselves victims of involved defendants were not Thus, today tradi- challenged practices. our does not limit the decision power any way; scope nor render that does it tional *9 Post, merely reject power “superfluous.” as a substi- We its use Amendment doctrine. for established Fourth tute “society’s deterring interest in exclusion conduct [bad faith] outweigh of fact society’s furnishing interest the trier [s] all with relevant 434 F. This reason- evidence.” Appeals which the Court of amounts to a ing, affirmed, of judgment controlling substitution individual for the de- cisions of accept this Court.9 Were we use of judiciary we confer on the discre- power, would tionary power of disregard the considered limitations charged enforcing. the super- law is We hold visory power does not extend so far. of judgment Appeals
The the Court of is
Reversed. Burger, Mr. Chief Justice concurring.
I join Payner opinion guilt the Court’s because —whose not advantage doubt —cannot take of the Government’s violation of rights Wolstencroft, the constitutional he is party opinion not this case. The Court’s makes clear the reason for that sound rule.
Orderly government system separate powers under our for internal discipline calls self-restraint each Branch; general supervisory authority opera- this Court has no over tions of the respect Executive it has with Branch, as fully I agree federal courts. with the Court the exclu- sionary inapplicable rule is to a case of this kind, but holding condoning Court’s should be read as difficulty protections respondent’s claim to the same attends Appeals Due Process Clause of the Fifth Amendment. expressly declined to consider Due But even if we Process Clause. outrageous to offend assume that the unlawful briefcase “ was so search ” California, Rochin v. decency ‘canons of fundamental fairness/ York, Malinshi (1952), quoting v. New S. U. (1945) (opinion Frankfurter, J.), the fact remains that limita “[t]he only play tions of the Due Process Clause . . . come into when the Gov activity question right protected ernment violates some defend Hampton supra, ant,” (plurality opinion). at 490 *10 or investigators” by “private record, this of the IRS disclosed evidence-gathering methods. approval their Brennan Mr. Justice Marshall, Mr. Justice whom dissenting. Mr. Justice Blackmun join, to a court is unable today The Court holds that federal use supervisory powers exercise of evidence prevent to prosecution though in a criminal even court, was uncon- obtained intentional by stitutional conduct because agents the United the defendant satisfy standing requirement does not Fourth effectively Amendment. That turns holding standing rules by created this Court for assertions Fourth Amendment a violations into sword be used Gov- to permit ernment deliberately person’s to invade one rights in order obtain evidence person. another Unlike the I do not believe Court, federal courts protect are unable to integrity judi- system gross cial from such Government misconduct.
I The facts as found the District need to be more fully stated in order to purposeful establish the level of mis- which agents of the States sunk have Operation case. Trade initiated by Winds was the Inter- nal Revenue Service (IRS) gather 1965 to information about the financial activities of American citizens Bahamas. The investigation was supervised by Special Agent Richard Jaffe in the office. It was not Fla., Jacksonville, June 1972 until the investigation focused on the Castle Bank and Trust Company of In the Bahamas. late October 1972 Jaffe asked one his Norman informants, Casper, obtain names and holding addresses of the individuals accounts with the Castle Bank. Casper set to work soon He already thereafter. an acquaintance of Michael Wol- stencroft, Bank. president vice and trust officer of the Castle Casper the United frequently knew that Wolstencroft visited carrying from the Castle States briefcase with documents Casper Sybol Bank. therefore introduced Wolstencroft In private Casper. who worked for Kennedy, detective *11 early January planned 1973, Casper learned that Wolstencroft a trip January business to the on and United States he him on would have Castle Bank with records it, called trip. caper,” Casper Plans for the “briefcase began in earnest. by
As the details Casper found the District discussed Court, week plan during with Jaffe on several occasions before he could trip.1 Casper Wolstencroft’s told Jaffe that get needed but that documents from Jaffe Wolstencroft, January 11, would supply photographic have to services. On Casper specifically planned informed he to enter Jaffe that apartment an and briefcase. Jaffe then take Wolstencroft’s would with his operation stated he have to clear the Intelligence Troy superior, Register, Jr., Chief the IRS and Division Jacksonville. Clearance Jaffe obtained, Casper called Casper proceed plan.2 told with the Jaffe a day and if refer him following asked the IRS could him a gave locksmith who could be “trusted.” Jaffe such referral.3 blandly “Agent approved the basic The Court rather states that Jaffe ante, plan,” misleading
outline of the characterization 730. Such a infra, light findings As is in the text District Court. noted operation helped explicit and to make Jaffe knew details advance by “trusted,” arrangements recommending could a locksmith who be by providing photographing a safe and convenient location for the documents, providing photographer a from the IES. knew, I he Jaffe testified in “[w]hatever 40; [Eegister] Supp. 113, See 434 F. n. Tr. knew.” why Casper a be “trusted.” It was clear needed locksmith who could Casper in the District testified as follows Court: fact, Casper, you you “Q. committing it a Mr. knew were an Isn’t the time of ar finalized Wolstencroft’s plans were directly Sybol January 15. Wolstencroft went rival on eventually went Kennedy’s apartment. couple key by Kennedy,5 Using provided for dinner.4 restaurant brief apartment stole Wolstencroft’s Casper entered the Casper then rendezvoused the IRS-recommended case. from apartment; locksmith in a lot five blocks parking Casper fit lock on key the locksmith made a the case. newly key took the briefcase made to the home of IRS agent. had location for the photograph Jaffe selected that you somebody keep act, and wanted who could be trusted to his mouth shut about it? yes. possibility,
“A. There is that
“Q. Isn’t that the fact?
“A. Yes.” 434 20; F. n. Tr. 452-453. *12 interesting It is to note who could be “trusted” that even the locksmith Kennedy’s Id., apartment Casper. refused to enter Agent he The contends that Jaffe the referral Government when made Casper did not to a locksmith. know what use intended make such found, however, Brief for United The States n. 4. District Court already Casper Jaffe intended to knew at the time of the referral that Kennedy’s open apartment enter briefcase. and to take and Wolstencroft’s were, then, only logical why Casper There two would want alternatives key key briefcase, a locksmith: a such to make a to enter the or to make apartment. way, to enter the Either Jaffe must have known Casper’s yet anyway. improper, conduct was and Jaffe made the referral Kennedy’s apartment It was not established at in trial what occurred prior couple’s departure peculiarly to the for dinner. Since it within power produce Kennedy of the United a States as witness and since explain trial, Government did not her absence from the Kennedy’s testimony Court inferred that be unfavorable “would delineating improprieties” further of the “briefcase caper.” Supp., 434 F. n. Court, hearing testimony Casper The District after both and Jaffe, Casper disbelieved Jaffe’s assertion that had informed him before Kennedy given Casper key apart hand that had a with which to enter the id., 15, 121, supra. ment. See n. n. 40. See also n. parking blocks from the lot
ing only eight because it was a Casper where met the locksmith and Jaffe knew there was in opened need The briefcase was Jaffe’s to act with haste.6 presence. expert then photography Jaffe, IRS Casper, for photographed Casper arranged documents.7 had over 400 Kennedy on and Wolstencroft be watched their date, this Casper agent’s lookout called at the home when IRS had couple their After all the documents finished dinner. been it to copied, Casper relocked briefcase returned Kennedy’s approxi apartment. “caper” entire lasted mately one and one-half hours. illegalities stop agents did not States following
even at two point, During however. weeks, Casper Jaffe told the IRS needed additional Casper Kennedy information. therefore sent to visit Wol- acting pursuant stencroft the Bahamas. While there, Kennedy Casper’s a rolodex file from instructions, stole Wol- stencroft’s office. This file was turned over who to Jaffe, testified in the District Court that he had cared how rolodex file been had obtained.8 paid Casper
The IRS he $8,000 cash the services rendered in obtaining information about Castle Bank. Casper paid approximately turn $1,000 money Kennedy for caper” her role the “briefcase and the theft the rolodex file. caper” papers
The “briefcase revealed which showed close relationship between the Bank and Florida bank. Castle 25; 434 F. n. Tr. 494-496. *13 previously, Casper provide photographic noted As had told Jaffe to the equipment. Jaffe one of the testified that cameras used was a “micro- quicker” regular filmer” than which was “much camera. This camera brought by “Casper get had been IRS because had to the documents apartment prior to the and the briefcase back to the return of the owner.” Id., testimony again fully 493-495. This shows that Jaffe was in aware evening improper. advance that the activities of the were 34; Supp., See 434 F. and n. Tr. 501. in the un- resulted Florida bank to that issued
Subpoenas which was agreement guarantee loan of the covering It at trial. respondent of evidence principal piece a result evidence discovered as and the agreement loan under reluctantly9 suppressed District Court of it that under Amendment and Fifth Due Clause of the Process supervisory powers. concerning key findings District Court made The several in these of the United States agents level of misconduct States, found that “the United The District Court activities. and knowingly and others, Richard Jaffe, its agents, seizure of Michael Wol- willfully in unlawful participated Norman encouraged its and briefcase, informant, stencroft’s offices of of a rolodex from the arrange the theft Casper, to 1977) (ND F. Ohio Supp. Castle Bank.” that “the concluded (footnotes omitted). The District Court admittedly in the participant United was active States Id., . Casper engaged. .” criminal conduct which . “the conduct Court found that compels case the con- government officials involved obtained the they knowingly purposefully and clusion that stric- hostility bad toward the briefcase materials with faith Id., imposed tures on their activities Constitution.” Dis- (footnote omitted) (emphasis original). at 130 “out- Casper the actions of Jaffe and trict Court considered ibid., they ultimately “plotted, because schemed rageous,” acted contravention of United States Constitution knowing illegal.” laws their Florida, Ibid.
The most the District how- disturbing Court, finding manipulation standing related to intentional ever, by agents of the Fourth Amendment requirements supposed uphold who are, course, 129, 134, n. 74. See F. *14 The Dis- country. and of this laws enforce Constitution trict Court found: in- agents, its and the Government
“It evident are, well aware Jaffe, cluding were, Richard Fourth Amend- of the requirement under the standing to an party pursuant from a obtained evidence ment, parties against third search is unconstitutional admissible subject expectations are privacy who’s own [sic] for the unconstitu- the cause though even search, incriminating those tional search was to obtain evidence ap- desire that, finds parties. third This Court fully shares, the Court prehend a desire tax evaders, agents counsels its affirmatively Government them to standing permits limitation Fourth Amendment and sei- search purposefully conduct unconstitutional against obtain evidence zure of one individual order to targets governmen- third real who are the parties, agents acted, this case tal the IRS intrusion, according counsel. will act in the to that future, compels the conclusion that governmental conduct Such caper’ transacted the ‘briefcase Casper Jaffe and Fourth Amend- hostility bad faith toward the purposeful, obtain evidence rights of Wolstencroft order to ment Payner.” (footnotes against Id., like at 131-133 persons omitted). any findings. did Appeals
The Court of not disturb of these 1979) (per curiam). (CA6 F. 2d 206 Nor does the today purport ante, 730-731, set See n. them aside. 3. ante, n. It is in the of these 733-734, But cf. context agents findings actions —intentional hostility rights in bad-faith taken toward constitutional purpose obtaining for the Wolstencroft respondent manipulation such persons standing requirements of the Fourth Amendment —that be considered. suppression issue must
II *15 supervi on Court has several occasions exercised This judicial system sup federal order to sory powers over the press Government obtained miscon States, g., United e. McNabb v. 318 332 duct. U. S. See, States, United (1943); Upshaw v. (1948); 335 U. S. 410 Mallory Mesarosh v. United 1 v. States, (1956); 352 U. S. States, States, United v. United Elkins 354 449 (1957); U. S. States, Cf. Rea United 364 S. 206 U. 350 U. S. v. (1956) (supervisory powers enjoin 214 used to agent federal testifying from in state prosecution concerning illegal criminal turning search and from over to the State evidence illegally seized). suppression The rationale such of evidence is twofold: to deter illegal officials, conduct Government McNabb v. protect integrity the federal courts. States, United supra, at 342, 345, 347; Mesatosh v. United States, supra, States, Elkins v. United supra, 14; Ohio, Mapp 222-223. v. Cf. 367 (1961) 659-660 (Fourth and Fourteenth Amendments); Illinois, Brown v. U. (1975) (Fourth S. 599-600 and Fourteenth Amend ments); Dunaway York, New v. (1979) S. U. (Fourth Amendments). Fourteenth par Court has ticularly supervisory stressed the need powers to use pre vent federal courts from becoming accomplices to such g., e. States, McNabb v. United misconduct. See, supra, at 345 a conviction (“Plainly, resting on evidence secured through such a flagrant disregard of procedure which Congress has commanded cannot be allowed to stand without making the courts accomplices themselves in willful dis obedience of law”); Mesarosh States, United supra, (the Court should use its supervisory powers in federal crim inal cases “to see justice waters of pol are not luted”) ; Elkins v. United States, supra, (federal at 223 courts should not be “accomplices in the willful disobedience of a they Constitution are uphold”). sworn to suppress powers The need to use the Court’s per- misconduct was through governmental evidence obtained famous in his by Mr. Brandéis haps expressed Justice best U. S. dissenting opinion Olmstead v. (1928): gov- security liberty alike demand that “Decency, the same rules subjected officials shall be ernment gov- In a citizen. are commands to the im- government will be existence of the laws, ernment of Our scrupulously. law perilled if to observe the it fails For teacher. omnipresent potent, is the by its exam- good people or for teaches the whole ill, If the Government becomes ple. contagious. Crime is *16 every for it invites contempt a breeds lawbreaker, it law; anarchy. it himself; man to a law unto invites become criminal To declare administration of the the Gov- justifies law the the means —to declare that the end may crimes in order convic- ernment commit secure the tion of a retribu- private bring criminal —would terrible Against pernicious tion. doctrine this Court should resolutely Id., its set face.” Mr. “a not Justice Brandéis noted that court will redress id., wrong hands,” when he who invokes its aid has unclean keeping principle at and that with the court 483, should lend aid in criminal its the enforcement of the law when government guilty itself was of misconduct. “Then aid is denied is despite wrong. defendant’s It respect pro- denied order maintain for in order law; mote confidence in in order justice; the administration preserve judicial Id., process from contamination.” at id., at also (Holmes, id., See J., dissenting); 488 (Stone, J., dissenting); Lopez v. United 373 U. S. (1963) dissenting).10 n. 3 J., (Brennan, opinion inexplicably ignores The prior Court’s this basic thrust of our powers supervisory cases, implies only and instead value served protect for emphasis The reason on the need to supervisory integrity of federal courts the use powers can be derived from in which the factual contexts supervisory powers part In when large have been exercised. powers been have been invoked the Court has faced intentional conduct. It has not been case that because the constable go criminal free “[t]he blundered,” has N. People Defore, v. 242 Y. 150 N. E. In these cases there has been no “blunder” by the agent all; inten- agent has rather, tionally explicit violated law for purpose obtaining the evidence in question. Lopez States, supra, Cf. 440 (supervisory powers only should be exercised if there “manifestly has been improper officials”). federal If the federal permits prod- court such evidence, the intended of deliberately uct illegal Government to be used to action, obtain a places conviction, imprimatur upon such law- lessness thereby integrity. taints its own present case category. falls within that found, the record establishes, deliberate decision by Government agents to violate rights the constitutional Wolstencroft explicit purpose obtaining against persons such Payner. The actions of the Govern ment agents stealing the opening it, photo briefcase, — all the graphing documents patently inside—were both *17 violation of the Fourth Amendment rights Wolstencroft11 plainly in and violation of the criminal law.12 The Govern by suppression is deterrence of ante, future misconduct. See at 736. De- purpose terrence is one suppression behind the of evidence in situa- such tions, but it is only no means the one. 11The Government conceded below that Fourth Amend Wolstencroft’s rights ment had been violated. 434 F. at 126. 502. See Tr. See also Brief for United States in p. No. (CA6), 20. Cf. of Oral Tr. Arg. 14; Brief for United States agrees 39. The Court that the conduct Ante, was unconstitutional. at 733. 12The Court characterizes the Casper actions of Jaffe and in the brief- exactly
ment knew information and it was wanted, what it information which was stolen from Wolstencroft. Simi larly, per the knew wanted prosecute Government to such to sons and it made a conscious decision Payner, forgo any in order to opportunity prosecute Wolstencroft illegally Payner obtain against and others.13 powers protect Since are exercised integrity of the rather constitu- than to vindicate the court, rights tional why of the hard the Court defendant, it is to see today bases analysis entirely its on Fourth stand- ing point judiciary rules. The is that the federal should not be made accomplices and Casper, Jaffe, crimes only others. The can from way the benefit the evidence IRS illegally it chose obtain if is the evidence is admitted at trial persons Payner; very point such as of the criminal If place. per- exercise first IRS mitted to obtain a conviction federal court based almost entirely illegally on that obtained evidence and fruits, “possibly behavior,” case incident as criminal ibid. The appeared prima concluded that the actions of the IRS to constitute a larceny possibly facie criminal and law, case of under Florida violated Sunn., n other criminal laws of that State as well. 434 F. Casper committing admitted the District Court that he knew he was stealing act. Tr. 452-453. The of the rolodex file from office was also both unconstitutional and That Wolstencroft’s criminal. theft, however, produced against Payner. no additional evidence See 434 Supp., at n. 56. F. id., 131-133, and n. 69. See also Tr. 505. See n. aiding abetting Payner. indicted for Brief in fact was Wolstencroft resident, However, 3, n. 2. is a Bahamian for United States Wolstencroft Ibid. did not to the United States answer indictment. return indicting steps went mere fact that way any finding, not in undermine the District Court’s does Wolstencroft record, evidence in the was never based on substantial Wolstencroft investigation. light In target con- of the IRS Government’s rights violated, Fourth Amendment were it is that Wolstencroft’s cession successfully prosecuted aiding the banker could be on the how hard to see charge. abetting *18 the deliberate given full effect to judiciary has then the in- federal does court of the Government. wrongdoings lawbreaker, Government accomplice of the become the deed judicial use of the for without accessory fact, after the an for nought. have been Such “caper” would permitted.14 courts should not be pollution of the federal today chooses particularly disturbing It is the Court rules deliberately manipulate to to allow the IRS standing previously Fourth to achieve its ends. As of the Amendment found that “the Government affirm- District Court noted, atively Fourth stand- agents counsels that the ing purposefully limitation them to conduct permits in order unconstitutional search and seizure one individual who the real parties, to obtain evidence third are targets of the and that the IRS governmental intrusion, agents according will future, this case act acted, (emphasis sup- that counsel.” 434 at 132-133 F. plied). standing may play, role those limitations Whatever they it is clear that were never intended to be a sword be used its deliberate to sacrifice choice rights person prosecute the constitutional of one in order to another. engraft
The Court’s decision standing limitations of Amendment onto the of supervisory exercise powers only is puzzling contrary because runs major purpose behind the exercise of powers— protect integrity of the ap- court —but also because it pears to render supervisory powers superfluous. In order to establish suppression supervi- evidence under the sory powers would be the Court proper, require would also simply It is not a for sufficient cure the Court to denounce the ac IRS, ante, tions of the while at the rewarding same time the Gov ernment permitting the IRS to use the evidence in the very purpose maimer which was the and unconstitutional activities.
Payner to establish
violation of his Fourth or Fifth Amend-
a
directly
in
flow
rights,15
suppression
ment
which case
would
totally
from the
This
is
unfaithful
approach
Constitution.
prior supervisory powers cases,
contrary
to our
to the
which,
disguise.
suggestion,
Court’s
are not constitutional cases in
I also do
for
assertion
not understand the basis
the Court’s
super-
is
which
District
was
this
not a case
the
Court
justice
the administration of
before
vising
“among
parties
the
ante,
bar,”
7,
supervisory powers
the
at
n.
735,
therefore
inapplicable. Clearly
are
is
the
the Government
before
bar.
Equally clearly, the Government
on
deliberate
embarked
this
pattern of
for
express
gain-
lawless behavior
of
purpose
the
ing
persons such as
so
can be
Payner,
there
15
appears
suggest
suppression
The Court
can
there
be no
evidence based on a
of the
violation
Due Process Clause in this case be
Payner
cause was not
who was
immediate
of the
the
victim
Govern
outrageous
Ante,
737,
Although
ment’s
conduct.
at
n.
the
9.
suppressed
Court concluded that
the evidence
be
the
should
under
Due
powers,
supervisory
Ap
Process Clause as well as under its
the Court of
peals
(per
specifically
issue,
(CA6 1979)
did not
reach
In
cited
the Court for
is
Hampton v.
484,
(1976) (plurality opinion).
U. S.
Hampton
only
plurality opinion,
a
and the
for
issue
which
Court
purports
by
Similarly,
cite
it was not raised
the facts of that
case.
Appeals
only
the Court
below
United States was able
cite
Sims
Georgia,
plainly
(1967),
point,
a case
not on
Hampton
opinion
by
plurality
quoted
Court,
from the
sentence
ante,
Payner
n.
proposition
standing
at
for the
lacked
to raise
process argument.
a due
See Brief for
No. 78-5278
United States in
(CA6),
21-22;
78-5278,
pp.
Reply
p.
Brief for United States in No.
standing
imposed
whether
issue
limitations this Court
has
challenging Fourth
apply
Amendment violations
also
for violations
yet
outrageous
Due
Clause
on
Process
based
conduct has not
been settled
this Court. Cf. 434
F.
n.
and authorities
process
therein.
discussed
The due
issue should be left for consideration
Appeals
on
the first instance
remand.
tangen-
only
actions are
illegal
claim that
legitimate
no
the Gov-
tially
present prosecution.
Instead,
to the
related
case;
without
very
ernment misconduct is
heart
there would
produced by
the evidence
conduct,
been
never have
Payner
no
would
all,
have been
case at
a
which
case
brought
simply
before the bar. This is
attempted
“general
has
to exercise
federal court
ante, Branch,”
over
Executive
authority
operations
case where
concurring). Rather, this
J.,
C.
(Burgee,
*20
accomplice
be made an
the District Court
refused to
use
agency
illegal
by
by permitting
conduct
the IRS
very
for which
proceeds
purpose
of its crimes for the
Payner.
such
they
persons
were
convict
committed —to
this is also
Contrary
characterization,
to the Courtis
or “unbend-
a case which there has been “indiscriminate”
ing”
exclusionary
rule. The District Court
application
power is
“exclusion
basis of
noted that
on the
n. 74. That
only
resort,”
done as a last
434
Supp.,
F.
at 134,
only where
suppression
proper
court concluded that
there
“purposefully illegal”
by
been
conduct
the Government
had
conduct
to obtain
evidence or where the Government’s
hostility
a con-
by
was “motivated
intentional bad faith
Id.,
In
(footnotes omitted).
stitutional
right.”
at
case,
requirements
met,
both those threshold
were
suppres-
the District Court
addition concluded that absent
sion there was no deterrent
to continued lawless
by
types
prosecu-
undertaken
to facilitate
IRS
these
This
'[by
tions.16
is not “a 'chancellor’s foot’ veto
the District
16
suggestion by
any
There
no
Government that
action has been
Casper, Jaffe,
against
exposed
taken
or others for the conduct
in this case.
“appear
The Court admits that the corrective measures taken
the IRS
positive
might expect
agency
face to be
than one
on their
less
from an
ante,
charged
upholding
law,”
n. 5. The District Court
specifically
agents
they
violating
found that
knew
were
time,
the Constitution at the
434 F.
and that con
n.
manipulation
standing
tinued
limitations
the Fourth Amendment
over
did not
practices
law enforcement
of which it
Court]
Russell,
United
States
approve,”
(1973);
v.
States,
Hampton
v. United
(plu
(1976)
S.
U.
rality opinion).
my
prior
Brother Powell
on a
As
noted
sharply
“The
de
occasion:
fact that
there is sometimes no
fined standard
make
judgments
which to
these
'[of
fundamental
deny
is not itself a sufficient reason to
fairness]
power
the federal judiciary’s
to make them when warranted
by the
I
our
despair
ability
circumstances.
. . Nor do
.
in an appropriate
identify appropriate
case
standards
police practices without
on the ‘chancellor’s’ ‘fastid
relying
”
Hampton
ious squeamishness
private
or
sentimentalism.’
supra,
(concurring
judgment).
495, n.
appropriate
That
arrived,
case has
should
the Court
prevent
Government from
use in the federal
profiting
courts
deliberately
illegal
of evidence
obtained by
actions
hostility
taken in bad-faith
rights.
constitutional
I
affirm
judgment
would
of Appeals
suppress the fruits of the
Government’s
action under
powers.17
the Court’s supervisory
I dissent.
Accordingly,
*21
id.¡
could
only
suppression
IRS
be
evidence,
deterred
argues
The Government
Rule 402
the Federal Rules of Evi
stripped
judiciary
dence
federal
powers
of its
to exclude
gross
evidence obtained
by agents
misconduct
Appeals
States.
In
argument
relegated
was
to one foot
note, see Brief for United
(CA6),
States in
p.
No. 78-5278
n. 27. The
Court does not
merely
address the issue.
I would
note
Govern
legislative
ment’s discussion of
history
behind Rule 402 fails to con
vince me that
Congress’,
attempt
intent
such a radical curtail
long-established
ment of the
supervisory powers
judiciary.
of the federal
Jacobs,
See United States (CA2
1976),
F. 2d
cert. dism’d
improvidently
granted,