No. 14-9496444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States____________________

ELIJAH MANUEL, Petitioner,v.

CITY OF JOLIET, ILLINOIS, ET AL., Respondents.____________________

On Writ of Certiorari to the United States Court of Appeals

for the Seventh Circuit____________________

Brief Amicus Curiae of U.S. JusticeFoundation, Downsize DC Foundation,

DownsizeDC.org, Gun Owners Foundation,Gun Owners of America, Conservative Legal

Defense and Education Fund, and Institute onthe Constitution in Support of Petitioner

____________________

MICHAEL CONNELLY HERBERT W. TITUS*U.S. Justice Foundation ROBERT J. OLSON

932 D Street, Ste. 2 WILLIAM J. OLSON

Ramona, CA 92065 JEREMIAH L. MORGAN

Attorney for Amicus Curiae JOHN S. MILES

U.S. Justice Foundation WILLIAM J. OLSON, P.C. 370 Maple Ave. W., Ste. 4 Vienna, VA 22180-5615 (703) 356-5070 wjo@mindspring.com

Attorneys for Amici Curiae *Counsel of Record May 9, 2016444444444444444444444444444444444444444444

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT

I. THE FOURTH AMENDMENT GIVES RISE TO ACAUSE OF ACTION FOR MALICIOUSPROSECUTION UNDER 42 U.S.C. § 1983 TORECOMPENSE PETITIONER’S PROTECTEDPROPERTY INTEREST IN HIS PERSON . . . . . . . . . 4

A. The Fourth Amendment Provides aProper Basis for Petitioner’s Claim . . . . . . 5

B. The Fourth Amendment ProtectsManuel’s Property Rights in His Person . . 8

C. Petitioner Has Suffered Economic Harmon Account of the Violation of His FourthAmendment Rights . . . . . . . . . . . . . . . . . 12

II. THIS COURT HAS LONG EXPRESSEDDISSATISFACTION WITH THE EXCLUSIONARYRULE, PREFERRING INSTEAD OTHERREMEDIES FOR FOURTH AMENDMENTVIOLATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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A. Once a Powerful Tool Protecting FourthAmendment Rights, this Court HasSignificantly Narrowed Application ofthe Exclusionary Rule Over Time . . . . . . 14

B. The Exclusionary Rule Has BeenLimited, in Part, Because OtherRemedies Would Address FourthAmendment Violations . . . . . . . . . . . . . . 19

C. The Court Should Adopt an ExpansiveView of Malicious Prosecution Claims inRecognition of the Important FourthAmendment Rights at Stake . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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TABLE OF AUTHORITIESPage

U.S. CONSTITUTIONAmendment IV . . . . . . . . . . . . . . . . . . . . . . 2, passimAmendment V . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22

STATUTE42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . 4, passim

CASESAlbright v. Oliver, 510 U.S. 266 (1994) . . . 5, passimArizona v. Evans, 514 U.S. 1 (1995) . . . . . . . . . . . 16Boyd v. United States, 116 U.S. 616 (1886) . . . . . 14Florida v. Jardines, 569 U.S. 1, 133 S.Ct.

1409 (2013) . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 9Grady v. North Carolina, 575 U.S. ___, 135

S.Ct. 1368 (2015) . . . . . . . . . . . . . . . . . . . . 2, 8, 9Heien v. North Carolina, 574 U.S. ___ (2014) . . . 16Hernandez-Cuevas v. Taylor, 723 F.3d 91

(1st Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Herring v. United States, 555 U.S. 135

(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18Hudson v. Michigan, 547 U.S. 586

(2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 13, passimIllinois v. Krull, 480 U.S. 340 (1987) . . . . . . . . . . 15Kalina v. Fletcher, 522 U.S. 118 (1997) . . . . . . . . . 8Mapp v. Ohio, 367 U.S. 643 (1961) . . . . . . 14, 17, 20Massachusetts v. Sheppard, 468 U.S. 981 (1984) 15Murray v. United States, 487 U.S. 533 (1988) . . . 16New York v. Harris, 495 U.S. 14 (1990) . . . . . . . . 16New York v. Quarles, 467 U.S. 649 (1984) . . . . . . 16Olmstead v. United States, 277 U.S. 438 (1928) . 14People v. Defore, 150 N.E. 585 (N.Y. 1926) . . . . . 15Segura v. United States, 468 U.S. 796 (1984) . . . 15

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Terry v. Ohio, 392 U.S. 1 (1968) . . . . . . . . . . . . . . 15United States v. Calandra, 414 U.S. 338 (1974) . 15United States v. Jones, 565 U.S. ___, 132

S.Ct. 945 (2012) . . . . . . . . . . . . . . . . . . 2, 8, 9, 10United States v. Leon, 468 U.S. 897

(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 15, passimWeeks v. United States, 232 U.S. 383 (1914) 14, 17

MISCELLANEOUSB. Bailyn, The Ideological Origins of the

American Revolution (Harvard University Press 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

W. Blackstone, Commentaries on the Laws of England . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

R. M. Bloom and H. J. Massey, “Accounting for Federalism in State Courts — Exclusion ofEvidence Obtained Lawfully By Federal Agents,” 79 UNIV. COLO. L. REV. 381 (2007) . 18

W. J. Brennan, Jr., “State Constitutions and the Protection of Individual Rights,” 90 HARV. L. REV. 489 (1977) . . . . . . . . . . . . . . . . . . . . . . 18

J. P. Goldstein, “From the Exclusionary Rule to aConstitutional Tort for Malicious Prosecutions,”106 COLUM. L. REV. 643 (2006) . . . . . . . . . . . 21

A. Liptak, “Supreme Court Steps Closer toRepeal of Evidence Ruling,” NEW YORK TIMES (Jan. 31, 2009) . . . . . . . . . . . . . . . . . . . 18

J. Locke, Second Treatise of Government . . . 10, 11S. Mills and T. Lighty, “Cops rarely punished

when judges find testimony false, questionable,”Chicago Tribune (May 6, 2016) . . . . . . . . . . . 21

J. Rakove, Revolutionaries. A New History of theInvention of America (Houghton MifflinHarcourt 2010) . . . . . . . . . . . . . . . . . . . . . . . . 11

INTEREST OF THE AMICI CURIAE1

United States Justice Foundation, Downsize DCFoundation, Gun Owners Foundation, andConservative Legal Defense and Education Fund arenonprofit educational organizations, exempt fromfederal income tax under section 501(c)(3) of theInternal Revenue Code (“IRC”). DownsizeDC.org andGun Owners of America are nonprofit social welfareorganizations, exempt from federal income tax underIRC section 501(c)(4). Institute on the Constitution isan educational organization.

These legal and policy organizations wereestablished, inter alia, for educational purposes relatedto participation in the public policy process, whichpurposes include programs to conduct research and toinform and educate the public on the properconstruction of state and federal constitutions andstatutes related to the rights of citizens, and questionsrelated to human and civil rights secured by law. Theyhave filed many amicus curiae briefs in this and otherCourts, including Fourth Amendment cases such asUnited States v. Jones, 565 U.S. ___, 132 S.Ct. 945(2012).2

1 It is hereby certified that counsel for the parties have consentedto the filing of this brief; that no counsel for a party authored thisbrief in whole or in part; and that no person other than theseamici curiae, their members, or their counsel made a monetarycontribution to its preparation or submission.

2 See Briefs Amicus Curiae of Gun Owners of America, et al. inJones at the petition stage (http://www.lawandfreedom.com/site/constitutional/USvJones_amicus.pdf) and at the merits stage(http://www.lawandfreedom.com/site/constitutional/USvJones_Amicus_Merits.pdf).

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SUMMARY OF ARGUMENT

Petitioner Elijah Manuel has appropriatelyinvoked the Fourth Amendment as a basis for hisclaim of malicious prosecution. Arrested withoutprobable cause, Manuel was detained in actual custodyfor 48 days during which time the police falsifiedevidence before a grand jury leading to hisarraignment on false charges which were dropped bythe prosecutor only after discovery that the chargeswere baseless.

The Fourth Amendment guarantee againstunreasonable searches and seizures is predicated onthe right of the people to be secure in their “persons,houses, papers, and effects.” Viewed against itscommon law backdrop, the Amendment’s purpose andscope extend throughout any period of pretrialdetention up to and including the day upon which allcriminal charges are dropped. During that timeinterval, the Fourth Amendment governs the actionsof the arresting authorities.

While the immediate effect of a violation of theFourth Amendment is the deprivation of one’s liberty,the interest protected by that Amendment is one’sproperty rights. See Grady v. North Carolina, citingUnited States v. Jones (effects) and Jardines v. Florida(houses). Foremost, the Amendment protects one’sproperty rights in one’s person. Indeed, by wrongfullyholding Manuel in pretrial detention for 48 days, theCity of Joliet and its police officers caused him not onlyemotional distress, but harmed his reputation,

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inflicted out-of-pocket losses, and deprived him ofemployment opportunities.

Because all charges were dropped, this Court’sexclusionary rule is of no value to Manuel to vindicatehis Fourth Amendment interests. Indeed, this Courthas severely cut back the availability of theexclusionary rule as a remedy for Fourth Amendmentviolations, indicating since the 1980’s a strongpreference for tortious actions as the primary means ofenforcement.

The Seventh Circuit rule constricting theavailability of a malicious prosecution action as aviolation of the Fourth Amendment because it mightcause “confusion” with a Fifth Amendment due processclaim, in that both claims would be premised upon thesame set of facts. Overlooked by this Seventh Circuitrule is the fact that the two constitutional guaranteesaddress two distinctly different but overlapping legalinterests. The Fifth Amendment due process claimwould vindicate Manuel’s liberty interest of freedomfrom restraint resulting from an unconstitutionalmisuse of legal process. The Fourth Amendment claimwould compensate Manuel for the unreasonableseizure of his person resulting from anunconstitutional deprivation of his property interest inhis person by an unconstitutional misuse ofprosecutorial power. Manuel suffered violations ofboth of these interests.

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ARGUMENT

I. THE FOURTH AMENDMENT GIVES RISETO A CAUSE OF ACTION FOR MALICIOUSPROSECUTION UNDER 42 U.S.C. § 1983 TORECOMPENSE PETITIONER’S PROTECTEDPROPERTY INTEREST IN HIS PERSON.

This case comes to this Court from the UnitedStates Court of Appeals for the Seventh Circuit on apetition for a writ of certiorari to review that Court’saffirmance of the district court’s order dismissing a§ 1983 civil rights claim.

Briefly, Petitioner Manuel alleges that he wasarrested and taken into custody on the basis offalsified evidence, and subjected to physical violence atthe scene of his arrest. Additionally, throughout a 48-day period in which he was held in physical custody,the police continually lied about the test results onpills seized from Manuel, including falsifyingtestimony before a Grand Jury and in an arraignmentproceeding. On the fourteenth day of incarceration, astate lab report revealed that the seized pills were notillegal drugs. Finally, more than 30 days after that,the Assistant State’s Attorney dismissed the chargeson the basis of the state lab report, and Manuel wasreleased from custody. A more complete statement offacts is set forth in the Brief for Petitioner and in thecourt of appeals opinion below. See Brief for Petitioner(“Pet. Br.”) at 2-6; Manuel v. City of Joliet, 590 Fed.Appx. 641, 642 (7th Cir. Dec. 28, 2015).

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The court of appeals affirmed the district court’sorder dismissing all charges as time-barred, except forManuel’s charge of malicious prosecution based uponthe Fourth Amendment. As to that claim, the court ofappeals upheld its dismissal on the sole ground of theCircuit’s reigning precedent that “‘[w]hen, after thearrest or seizure, a person is not let go when he shouldbe, the Fourth Amendment gives way to the dueprocess clause as a basis for challenging hisdetention.’” Manuel at 643.

As the Petitioner’s Brief demonstrates, theSeventh Circuit rule blocking a malicious prosecutioncharge resting upon the Fourth Amendment not onlyconflicts with the law in 10 federal circuits, but alsowith the explanations and reasonings that a majorityof Justices expressed in Albright v. Oliver, 510 U.S.266 (1994). See Pet. Br. at 8, n.4. Petitioner’s briefcites the opinions of the several justices in Albright insupport of a number of points.3 This amicus briefsingles out Justice Ginsburg’s concurring opinion,demonstrating how and why the Fourth Amendmentapplies to a malicious prosecution claim after anunconstitutional arrest, such as the claim made byManuel in this case.

A. The Fourth Amendment Provides aProper Basis for Petitioner’s Claim.

In Albright, Justice Ginsburg offered reasons whythe Fourth Amendment’s “probable cause”

3 See Pet. Br. at 8, 12, 14-16, 23-24, 26-28, 30, 34.

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requirement does not end prior to a person’s releasefrom custody — such as at the time of a preliminaryhearing. Id. at 277-80. That is the very point ofcontention in this case: the court of appeals belowruled that “if Manuel has a Fourth Amendment claim... it would have stemmed from his arrest on March 18,2011” and ceased at the point of arraignment. Manuelat 643.4

To the contrary, Justice Ginsburg wrote: “TheFourth Amendment’s instruction to police officersseems to me more purposive and embracing.” Id. Albright at 277. Noting that the Supreme Court hadalready drawn on the common law to “aidcontemporary inquiry into the meaning of theAmendment’s term ‘seizure,’” Justice Ginsburgconducted her own review of the common law of arrestand custody, concluding that once a person has beenarrested and charged with an offense, a “defendant isscarcely at liberty; he remains apprehended, arrestedin his movements, indeed ‘seized’ for trial, so long ashe is bound to appear in court and answer the state’scharges.” Id. at 279. Thus, Justice Ginsburgmaintained that a defendant, even if released pretrial,is “still ‘seized’ in the constitutionally relevant sense.” Id.

4 Although the date the Fourth Amendment claim ends relates inthis case to a statute of limitations defense, the state’s positionwould also have the effect of limiting the state’s financial exposurefor such actions to the typically brief period between arrest andarraignment, even if incarceration continues for many weeks, ashere.

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Thus, Justice Ginsburg asserted:

This conception of a seizure and its courserecognizes that the vitality of the FourthAmendment depends upon its constantobservance by police officers[,] govern[ing]both the manner of, and the cause for, [an]arrest.... [Id.]

Applying the Fourth Amendment’s text, JusticeGinsburg stated: “Albright remained effectively‘seized’ for trial so long as the prosecution against himremained pending, and that [police officer] Oliver’stestimony at the preliminary hearing, if deliberatelymisleading, violated the Fourth Amendment byperpetuating the seizure....” Id. at 280.

It is, then, the Fourth Amendment’s standard of“probable cause” that governs the constitutionality ofthe initial arrest, and the Amendment’s“reasonableness” standard that governs whether the“manner” of effecting that arrest “perpetuated theFourth Amendment violation.” See id. at 279. See also100.

Manuel, who was held in physical custody for 48days, remained “seized” in the constitutional sensethroughout the period of incarceration. See id. at 279. See also Hernandez-Cuevas v. Taylor, 723 F.3d 91,100-101 (1st Cir. 2013) and cases cited therein. Manuel’s unconstitutionally effected arrestperpetuated the initial seizure by the Joliet policeofficers who falsified the evidence and misled both a

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Grand Jury and the prosecutor by their duplicity inviolation of the Fourth Amendment.5

In sum, as Justice Ginsburg reasons, whether ornot an arrested and charged person is kept in custodyor even if released from physical custody, the FourthAmendment sets the standard for alleging and provinga violation of 42 U.S.C. § 1983, the breach of whichgives rise to a cause of action for malicious prosecutionaccording to the common law principles underlyingthat Amendment.

B. The Fourth Amendment Protects Manuel’sProperty Rights in His Person.

The correctness of Justice Ginsburg’s common lawapproach to the people’s liberty interests secured bythe Fourth Amendment is supported by this Court’sunanimous per curiam opinion in Grady v. NorthCarolina, 575 U.S. __, 135 S.Ct. 1368 (2015). InGrady, this Court affirmed the holdings in UnitedStates v. Jones6 and Florida v. Jardines,7 that a searchwithin the meaning of the Fourth Amendmentoccurred when “the Government had ‘physically

5 As Justice Scalia has observed, at common law the tort ofmalicious prosecution could be sustained upon proof of a maliciousact coupled with the absence of probable cause and the ultimatetermination of criminal charges, and this is precisely the situationin Manuel’s case. See Kalina v. Fletcher, 522 U.S. 118, 133 (1997). See also Pet. Br. at 7.

6 565 U.S. __, 132 S.Ct. 945 (2012).

7 569 U.S. 1, 133 S.Ct. 1409 (2013).

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occupied private property for the purpose of obtaininginformation,’” regardless of whether the intrusioninvaded the occupier’s personal privacy. Grady at1370.

As elaborated in Jones, this Court’s “FourthAmendment jurisprudence was [originally] tied tocommon-law trespass,” consistent with theAmendment’s text which secured the people’s “persons,houses, papers, and effects.” Jones, 132 S.Ct. at 949. And, as explained in Jardines, Jones restored thisoriginal understanding, affirming the “Amendment’sproperty-rights baseline.” Jardines, 133 S.Ct. at 1417. Thus, the first step in any Fourth Amendmentanalysis is to identify what, if any, property interest isat stake.

In Jones and Jardines, the property interests werea person’s exclusive possession in “effects” and“houses,” respectively. In Jones, the Court found that,by placing a GPS tracking device on a motor vehicle,“[t]he Government physically occupied privateproperty,” leading it to find that “no doubt ... such aphysical intrusion would have been considered a‘search’ within the meaning of the Fourth Amendmentwhen it was adopted.” Id., 132 S.Ct. at 949. InJardines, the Court found the use of a drug-sniffingdog “in an area belonging to Jardines and immediatelysurrounding his house — in the curtilage of the house”— to be a search. Id., 133 S.Ct. at 1414. In both cases,the Government committed a common law trespass, ashad been recognized during the nation’s founding era. See Jones, 132 S.Ct. at 949; Jardines 133 S.Ct. at 1415.

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In Manuel’s case, the property interest at stake isin his “person.” As Jones, itself, acknowledges:

The text of the Fourth Amendment reflects itsclose connection to property, since otherwise itwould have referred simply to “the right of thepeople to be secure against unreasonablesearches and seizures”; the phrase “in theirpersons, houses, papers, and effects” wouldhave been superfluous. [Jones, 132 S.Ct. at949 (emphasis added).]

Far from being superfluous, the idea of having aproperty interest in one’s person was central to thefounding of the American Republic.

It is no accident that the list of protected interestsunder the Fourth Amendment begins with “person,” asone’s person is foremost among his property interests. Today, most would associate “person” with a so-called“right of privacy.” But at the time the FourthAmendment was ratified, the word “person” had a verydifferent meaning and connotation, paralleling the17th-century property theories of John Locke:8

every Man has a Property in his own Person. This no Body has any Right to but himself. The Labor of his Body and the Work of hisHands ... are properly his. [J. Locke, SecondTreatise of Government, para. 27 (facsimileed.), reprinted in J. Locke, Two Treatises of

8 See, e.g., B. Bailyn, The Ideological Origins of the AmericanRevolution at 26-31 (Harvard University Press, 1967).

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Government, pp. 287-88 (P. Laslett, ed.,Cambridge Univ. Press: 2002).]

Locke reasoned that “being the Master of himself, andthe Proprietor of his own Person, and the Actions ... ofit,” a man has “in himself the great Foundation ofProperty....” Id. at para. 44. Stanford Universityhistorian and Pulitzer Prize winner Jack Rakoveexplains that:

For Locke ... the concept of propertyencompassed not only the objects a personowned but also the ability, indeed the right toacquire them. Just as men had a right to theirproperty, so they held a property in theirrights. Men did not merely claim their rights,but also owned them, and their title to theirliberty was as sound as their title to the landor to the tools with which they earned theirlivelihood. [J. Rakove, Revolutionaries. ANew History of the Invention of America at 78(Houghton Mifflin Harcourt, 2010).]

Applying these principles here, both Manuel’sarrest and his continuing detention for 48 dayswithout probable cause constituted a FourthAmendment seizure because it deprived Manuel of hisfreedom of movement, as well as denying him workand educational opportunities to his financialdetriment. Pet. Br. at 6. As Locke would have put it,the incarceration of Manuel denied him the “labor ofhis body and the work of his hands.” See Locke, supra.

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C. Petitioner Has Suffered Economic Harmon Account of the Violation of His FourthAmendment Rights.

In her Albright concurrence, Justice Ginsburgidentified with some particularity the property rightsat stake when the Fourth Amendment is violated. Depriving a person of his liberty of movement mayresult in severely diminished “employment prospects,”“reputational harm,”9 and the “financial ... strain ofpreparing a defense.” Id. at 278. In his Albrightconcurrence, Justice Souter affirmed JusticeGinsburg’s list, repeating “reputational harm,” andadding to it “inability to transact business or obtainemployment in his local area; necessitating relocation... inability to secure credit.” Id. at 289 (Souter, J.,concurring).

Unlike Albright, however, Manuel has alleged inhis complaint that his arrest and pretrial detentionviolated his Fourth Amendment rights vested in hisperson. See Pet. Br. at 9. As Manuel points out in theconcluding section of his brief, he is entitled under§ 1983, not only to damages for his economic losses,but also for his emotional suffering resulting from hisloss of personal liberty, caused by the malicious and

9 The common law tort of malicious prosecution was linked to thecommon law torts of slander and libel, each of which was designedto protect a person’s reputation, and to provide recompense forloss to one’s trade or livelihood. See 3 W. Blackstone,Commentaries on the Laws of England 123-26 (Univ. Chi.Facsimile ed., 1768).

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indefensible actions of arresting and holding himwithout probable cause. See Pet. Br. at 33-36.

II. This Court Has Long ExpressedDissatisfaction with the Exclusionary Rule,Preferring Instead Other Remedies forFourth Amendment Violations.

This case, of course, is not an exclusionary rulecase. Because the police never found any evidence ofany crime, Manuel was never brought to trial, andthere was no “evidence” to suppress. However, thiscase is appropriately viewed in the shadow of thisCourt’s prior rulings on the exclusionary rule. Inrecent years, this Court has narrowed the scope of theexclusionary rule, pointing towards other remedies asbetter alternatives to deter government agents fromviolating the constitutional rights of Americans. Inthis case, Manuel seeks to avail himself of one of thosealternate remedies — a malicious prosecution claimbased on deprivation of Fourth Amendment rights,brought under 42 U.S.C. § 1983.

Having limited the protections provided by theexclusionary rule, this Court now has a specialresponsibility to protect access to a civil remedy toprotect Fourth Amendment rights. To do otherwiserisks leaving the Fourth Amendment toothless andineffective on all fronts. Dissenting in Hudson v.Michigan, 547 U.S. 586 (2006), Justices Breyer,Stevens, Souter, and Ginsburg echoed similarconcerns, noting that “our Fourth Amendmenttraditions ... emphasize the need to assure that itsconstitutional protections are effective, lest the

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Amendment ‘sound the word of promise to the ear butbreak it to the hope.’” Id. at 630.

A. Once a Powerful Tool Protecting FourthAmendment Rights, this Court HasSignificantly Narrowed Application of theExclusionary Rule Over Time.

The exclusionary rule has its modern roots as farback as Boyd v. United States, 116 U.S. 616 (1886),involving compulsory production of a person’s papers. A century ago, in Weeks v. United States, 232 U.S. 383(1914), Justice Day wrote for the Court that, ifevidence could be obtained in violation of the FourthAmendment, and then used at trial, the FourthAmendment “is of no value, and ... might as well bestricken from the Constitution.” Id. at 393. Olmsteadv. United States, 277 U.S. 438 (1928), summarized theWeeks exclusionary rule as a “sweeping declarationthat the Fourth Amendment, although not referring toor limiting the use of evidence in courts, really forbadeits introduction if obtained by government officersthrough a violation of the Amendment.” Id. at 462. Ahalf century after Weeks, in Mapp v. Ohio, 367 U.S.643 (1961), this Court applied the exclusionary rule tothe states through the Fourteenth Amendment, andstated broadly that “all evidence obtained by searchesand seizures in violation of the Constitution is, by thatsame authority, inadmissible in a state court.” Id. at655.10 As late as 1968, this Court described the

10 Critics of the exclusionary rule argue that the rule protects onlycriminals, and often point to Justice Cardozo’s famous statementthat “the criminal is to go free because the constable has

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exclusionary rule as “the only effective deterrent topolice misconduct in the criminal context.” Terry v.Ohio, 392 U.S. 1, 12 (1968).

Over time, however, support for this expansiveremedy began to wane, as the Court in the 1980’s severely scaled back its application in a series of cases. In United States v. Leon, 468 U.S. 897 (1984), theCourt permitted the introduction of evidencediscovered with a warrant that was not based uponprobable cause, finding the police had acted in “goodfaith” while executing the warrant. There, the Courtasserted that “[w]hether the exclusionary sanction isappropriately imposed in a particular case . . . is ‘anissue separate from the question whether the FourthAmendment rights of the party seeking to invoke therule were violated by police conduct.’” Id. at 906. Bothbefore and since Leon, various decisions of this Courthave continued to limit application of the exclusionaryrule in other contexts.11

blundered.” People v. Defore, 150 N.E. 585, 587 (N.Y. 1926). Mapp addressed such claims, noting that “[t]he criminal goes free,if he must, but it is the law that sets him free. Nothing candestroy a government more quickly than its failure to observe itsown laws, or worse, its disregard of the charter of its ownexistence.” Id. at 659.

11 See also United States v. Calandra, 414 U.S. 338 (1974) (noexclusionary rule for Grand Jury proceedings); Segura v. UnitedStates, 468 U.S. 796 (1984) (no exclusion of evidence where policeunlawfully detained a man, illegally entered his home, andillegally stayed for 19 hours awaiting a search warrant, becausethe evidence eventually was found pursuant to a lawful warrant);Massachusetts v. Sheppard, 468 U.S. 981 (1984) (no exclusionaryrule where police rely in good faith on defective warrant); Illinois

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The Court in Leon ignored Justice Brennan’s earlywarning that, “in case after case, I have witnessed theCourt’s gradual but determined strangulation of the[exclusionary] rule.” Leon at 928-29 (Brennan, J.,dissenting). Indeed, the modern Court’sunderstanding of the exclusionary rule now presumesthat the Constitutional text does not explicitly requireexclusion of evidence,12 and the exclusionary rule being

v. Krull, 480 U.S. 340 (1987) (good faith exception to exclusionaryrule where statute permitting warrantless search was later foundunconstitutional); Murray v. United States, 487 U.S. 533, 542(1988) (independent source doctrine applies to avoid theexclusionary rule “[s]o long as a later, lawful seizure is genuinelyindependent of an earlier, tainted one....”); New York v. Harris,495 U.S. 14 (1990) (no exclusion where police unlawfully arrestedsomeone at home without a warrant, who then obtainedincriminating statements from him at the police station, becausethe statement was not the fruit of an arrest at home); Arizona v.Evans, 514 U.S.1 (1995) (no exclusionary rule where policeoperated under mistake of fact based on erroneous court records);Hudson v. Michigan, 547 U.S. 586 (2006) (violation of knock-and-announce rule when serving a warrant did not require exclusionof evidence because the Fourth Amendment violation involvedonly how the warrant was served, and not how the evidence wasobtained); Herring v. United States, 555 U.S. 135 (2009) (noexclusionary rule where police operated under mistake of factbased on erroneous police records); and Heien v. North Carolina,574 U.S. ___ (2014) (no exclusion based on mistake of law). Seealso New York v. Quarles, 467 U.S. 649 (1984) (no exclusion of astatement obtained from a suspect, based on a “public safety”exception to Miranda warning).

12 Justice Brennan believed that evidence obtained in anunconstitutional fashion could never be admitted into evidence,and that obtainment and introduction of evidence are but a single,unconstitutional government action. Leon at 933. JusticeGinsburg echoed those concerns, stating that “the Amendment ‘is

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only a judicially created remedy designed to deter thegovernment from violating people’s rights. IgnoringMapp’s expansive statement of the exclusionary rule’spurpose, the modern Court has applied the rule basedon subjective cost-benefit analyses,13 whereby if nosufficient deterrent purpose is fulfilled by the allegedly“costly” exclusion of evidence, then the rule does not

a constraint on the power of the sovereign, not merely on some ofits agents.’” Herring at 151-52. This had been the Court’soriginal understanding of the exclusionary rule. The Court inWeeks v. United States, 232 U.S. 383, 392 (1914), stated that“[t]he tendency of those who execute the criminal laws of thecountry to obtain conviction by means of unlawful seizures andenforced confessions ... should find no sanction in the judgmentsof the courts which are charged at all times with the support ofthe Constitution....” Indeed, Weeks continued, it is “the duty ofgiving [the Fourth Amendment] force and effect is obligatory uponall entrusted under our Federal system with the enforcement ofthe laws.” Id. at 392.

13 Justice Breyer saw things differently, claiming that theexclusionary rule actually imposes no “cost,” since if theConstitution had been followed, there would have been noevidence to begin with. Therefore, the only “cost” of theexclusionary rule was that “official compliance with FourthAmendment requirements makes it more difficult to catchcriminals.” Leon at 941. Indeed, the dissenters in Hudson notedthat “[t]he majority’s ‘substantial social costs’ argument is anargument against the Fourth Amendment’s exclusionary principleitself.” Hudson at 614. So too did the Court in Weeks, noting that“[t]he efforts of the courts and their officials to bring the guilty topunishment, praiseworthy as they are, are not to be aided by thesacrifice of those great principles established by years of endeavorand suffering which have resulted in their embodiment in thefundamental law of the land.” Id. at 393.

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apply.14 Frequently, this Court has noted the“substantial societal cost” imposed by excludingevidence, calling it a “jackpot enormous: suppressionof all evidence, amounting in many cases to aget-out-of-jail-free card.” Hudson at 595.15

In 1977, Justice Brennan made the suggestion that“state courts cannot rest when they have afforded theircitizens the full protections of the federal Constitution.State constitutions, too, are a font of individualliberties, their protection often extending beyond thoserequired by Supreme Court’s interpretation of federallaw.” W. J. Brennan, Jr., “State Constitutions and theProtection of Individual Rights,” 90 HARV. L. REV. 489,491 (1977). Indeed, many state courts have essentiallyoverridden this Court’s narrowing of the exclusionaryrule. See R. M. Bloom and H. J. Massey, “Accountingfor Federalism in State Courts — Exclusion ofEvidence Obtained Lawfully By Federal Agents,” 79UNIV. COLO. L. REV. 381, 389 (2007) (noting theinteresting juxtaposition whereby “[p]rior to the Mappdecision, the federal Constitution provided greaterrights to individual defendants. Immediately afterMapp, rights of federal or state criminal defendants

14 Dissenting in Leon, Justice Stevens noted that “[t]oday, for thefirst time, this Court holds that although the Constitution hasbeen violated, no court should do anything about it at any timeand in any proceeding.” Id. at 977.

15 Some fear the Court’s 2009 decision in Herring “jumped thefirewall” and is the precursor to complete elimination of theexclusionary rule. See A. Liptak, “Supreme Court Steps Closer toRepeal of Evidence Ruling,” NEW YORK TIMES (Jan. 31, 2009) atA1.

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vis-a-vis the police were the same. Now defendants insome states are enjoying greater protections understate law than federal law.”).

B. The Exclusionary Rule Has Been Limited,in Part, Because Other Remedies WouldAddress Fourth Amendment Violations.

The Hudson Court described the exclusionary ruleas the product of a bygone age, and that “[w]e cannotassume that exclusion in this context is necessarydeterrence simply because we found that it wasnecessary deterrence in different contexts and longago. That would be forcing the public today to pay forthe sins and inadequacies of a legal regime thatexisted almost half a century ago.” Id. at 597. Inrejecting application of the exclusionary rule inHudson, the Court pointed to alternative remedieswhich it believed would fully address constitutionalviolations.

In particular, the Court pointed towards 42 U.S.C.§ 1983 as the best way to rectify constitutionalviolations,16 noting that, during the height of the

16 In truth, the Court’s reliance on Section 1983 actions ignoredthe real world problems of such litigation. Section 1983 actionsare difficult to win for numerous reasons, not the least of which isthe qualified (or even absolute) immunity typically enjoyed bypolice and prosecutors acting within the scope of theiremployment. Additionally, accused criminals bringing civil suitsdo not typically make sympathetic plaintiffs, whereas police arespecially trained to testify and to appear likeable to juries. Often,if there was no monetary harm, nominal damages are of littlebenefit to a victim. Lastly, even if a judgment is successfully

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exclusionary rule in the 1960’s, “[i]t would be another17 years before the § 1983 remedy was extended toreach the deep pocket of municipalities,” and“[c]itizens whose Fourth Amendment rights wereviolated by federal officers could not bring suit until 10years after Mapp, with this Court’s decision inBivens....” Id. The Court continues its support ofSection 1983 actions in lieu of the exclusionary rule,noting that “Congress has authorized attorney’s feesfor civil-rights plaintiffs. This remedy was unavailablein the heydays of our exclusionary-rulejurisprudence....” Id.17

obtained, many victims find out that the police officers whoviolated their rights are essentially judgment-proof, and there islittle or nothing to collect.

17 The Court also pointed to “[a]nother development over the pasthalf-century that deters civil-rights violations ... the increasingprofessionalism of police forces, including a new emphasis oninternal police discipline.” Id. at 598. The Court claimed that“modern police forces are staffed with professionals ... internaldiscipline ... can limit successful careers....” Id. at 599 (emphasisadded). Of course, if these statements were true, there would belittle to no “societal cost” to maintaining a robust exclusionaryrule.

Unfortunately, judges who work “in the trenches” have haddifferent experiences. In one major American city, an“investigation documented [a] troubling phenomenon, with morethan a dozen examples over the past few years in which policeofficers, according to judges, gave false or questionable testimony— but experienced few, if any, repercussions. ... The ChicagoPolice Department and the Cook County state’s attorney’s officealmost never hold officers accountable in spite of claims theyhave a zero-tolerance policy for officers who do not tell the truth. The issue so erodes trust in the criminal justice system that theU.S. Department of Justice, as part of its civil rights investigation

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Because the Court has, in part, justified its moveaway from the exclusionary rule because of theavailability of alternative remedies for FourthAmendment violations, it must protect thosealternative remedies. In fact, in many instances, thesealternative remedies can accomplish what theexclusionary rule cannot, such as the present case:

Tort liability is especially appropriate [whereno prosecution is brought] because “theexclusionary rule offers absolutely nocompensation or deterrence whatsoever” when“the cops know you are innocent and just wantto harass you.” [J. P. Goldstein, “From theExclusionary Rule to a Constitutional Tort forMalicious Prosecutions,” 106 COLUM. L. REV.643, 662-663 (2006).]

C. The Court Should Adopt an ExpansiveView of Malicious Prosecution Claims inRecognition of the Important FourthAmendment Rights at Stake.

The court of appeals below justified that circuit’srestricted view that “Fourth Amendment claims aretypically ‘limited up to the point of arraignment,’ after

into the Police Department, has asked the Cook County publicdefender’s office to refer cases with evidence that officers testifiedfalsely....” S. Mills and T. Lighty, “Cops rarely punished whenjudges find testimony false, questionable,” Chicago Tribune (May6, 2016) (emphasis added), http://www.chicagotribune.com/news/local/breaking/ct-chicago-police-testimony-met-20160506-story.html.

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which it becomes a malicious prosecution claim.” Manuel at 643. Apparently, this view has prevailed inthe Seventh Circuit to avoid the “confusion” that mightresult from allowing a Fourth Amendment claim tospill over on a Fifth Amendment claim. Id. To avoidthis confusion, the Seventh Circuit has ruled that“‘[w]hen, after the arrest or seizure, a person is not letgo when he should be, the Fourth Amendment givesway to the due process clause as a basis forchallenging his detention.’” Id.

As Manuel points out in his brief, there is no goodreason why the due process claim should preempt aFourth Amendment claim arising out of the sameunlawful detention. See Pet. Br. at 26. Although thefacts may be the same, there are two distinct wrongscommitted. Overlooked by this Seventh Circuit rule isthe fact that the two constitutional guarantees addresstwo distinctly different legal interests. The FifthAmendment due process claim would vindicateManuel’s liberty interest of freedom from restraintresulting from an unconstitutional misuse of legalprocess. The Fourth Amendment claim wouldcompensate Manuel for the unreasonable seizure of hisperson resulting from an unconstitutional deprivationof one’s property interest in his person by anunconstitutional misuse of prosecutorial power.

Instead of recognizing the different interestsaddressed by the two Amendment guarantees, theSeventh Circuit’s decision appears to rest on theoverriding unconstitutional proposition that “Manuelhas no Fourth Amendment right to be free fromgroundless prosecution.” Manuel at 643. The

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unstated corollary of this statement is that Manuelloses his Fourth Amendment property right to be freefrom unlawful seizure by the state at some arbitrarymoment in time when a state prosecutor joins with thestate police in perpetuating Manuel’s seizure andincarceration. Such a statement views Manuel’sincarceration only from the perspective of thegovernment. It focuses narrowly on which componentof law enforcement is participating in the deprivationof Manuel’s right to bodily freedom. However, whenthese same facts are viewed from the perspective ofManuel, it becomes clear that the unlawful seizure ofhis body continued uninterrupted throughout hisincarceration, irrespective of whether the wrongfulacts were committed by the state’s police alone, or withthe assistance of the state’s prosecutors.

CONCLUSION

The decision of the U.S. Court of Appeals for theSeventh Circuit should be reversed.

Respectfully submitted,

MICHAEL CONNELLY HERBERT W. TITUS*U.S. Justice Foundation ROBERT J. OLSON

932 D Street, Ste. 2 WILLIAM J. OLSON

Ramona, CA 92065 JEREMIAH L. MORGAN

Attorney for Amicus Curiae JOHN S. MILES

U.S. Justice Foundation WILLIAM J. OLSON, P.C. 370 Maple Ave. W., Ste. 4 Vienna, VA 22180-5615 (703) 356-5070

*Counsel of Record wjo@mindspring.com May 9, 2016 Attorneys for Amici Curiae