Transcript

IN THE SUPREME COURT OF THE UNITED STATES

ARIZONA, Petitioner v. ISAAC EVANS

No. 93-1660

December 7, 1994

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:00 a.m.

APPEARANCES:

GERALD R. GRANT, ESQ., Deputy County Attorney, Phoenix, Arizona; on behalf of the Petitioner.

CAROL A. CARRIGAN, ESQ., Phoenix, Arizona; on behalf of the Respondent.

PROCEEDINGS

11:00 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in Number 93-1660, Arizona v. Isaac Evans.

Mr. Grant.

ORAL ARGUMENT OF GERALD R. GRANT ON BEHALF OF THE PETITIONER

MR. GRANT: Mr. Chief Justice and may it please the Court:

In this case, the Arizona supreme court held that where a police officer arrested respondent based on a police computer report of an outstanding misdemeanor arrest warrant, where that warrant had actually been quashed prior to the arrest, that the exclusionary rule required suppression of the evidence seized pursuant to that arrest, regardless of whether the error that resulted in the warrant's continued presence in the computer system was the responsibility of judicial personnel or police personnel.

It's the State's position that this holding of the Arizona supreme court is inconsistent with this Court's decisions in Leon, Massachusetts v. Sheppard, and Krull, and the State of Arizona asks this Court to reverse the Arizona supreme court's judgment.

Before I get into what I have stated is the main argument --

QUESTION: Now, Mr. Grant, do you take the position that the law enforcement agency, the police or the law enforcement agency have no duty or responsibility to keep computer records up to date?

MR. GRANT: No, I don't take that position, Your Honor.

QUESTION: In this instance, do we know whether the police had any obligation to update their computer records?

MR. GRANT: We had an evidentiary hearing on the motion to suppress. The defense position at that hearing essentially was that it made no difference whether the error was judicial or police. The defense developed no --

QUESTION: I guess the courts below never actually made a determination, did they --

MR. GRANT: The trial judge --

QUESTION: -- as to whose error it was?

MR. GRANT: -- did not. I believe a fair reading of the -- of the ruling is that he was willing to assume that the error was judicial rather than police, but he made no specific factual finding.

QUESTION: Would it be a different case if this listing had continued for several months and had not been corrected? Would there be some point in time when you would think that the blame could shift to the police, and therefore exclusion could be a remedy?

MR. GRANT: I believe it would be a different case, yes. I believe in that sort of situation you'd be getting away from what I think is the clear issue here, that the error was the result of judicial personnel, not police personnel.

QUESTION: Although we actually don't know that here?

MR. GRANT: Well, I think the evidence is clear that that's -- that's why the warrant was still in the computer system here.

QUESTION: Mm-hmm. There was a case that we had that predated Leon. It was that Whiteley v. Warden in 1971, that said where an arrest warrant is invalid, so is any arrest that results, and the evidence must be excluded. Do you take the view that Leon altered that case and that holding?

MR. GRANT: I think -- I think the -- I'm drawing a blank on the name of the case for the moment, but I do not -- I think the result would have been the same under Leon, because in Whiting, I -- or Whiteley, what the officer presented to the judge in order to obtain the warrant was simply a bare bones affidavit, and in Leon this Court noted that that sort of situation would not be the sort that would be justifiable for the good faith exclusion to the -- exception to the exclusionary rule.

I also think there's a distinction between Whiteley and this -- in this case, and I think it's followed through in Leon, in that what the Court should look at, in Whiteley you looked at -- the warrant began with an officer instigating it. He went to the judge and obtained the warrant based on a good faith -- excuse me, based on a bare bones affidavit, which Leon has said is something that the Court will not recognize and not allow the officers to rule on.

Here, the warrant was initiated by a justice court. The justice court issued this arrest warrant when Mr. Evans failed to appear before the justice court. The justice court put the warrant into the police system for the purpose of getting police assistance and arresting Mr. Evans and bringing him before the court, and it was the justice court's failure, I think that's clear from the record, to make the call to the sheriff's office and have that warrant removed once it was quashed, that is to blame for Mr. Evans' arrest.

In that situation, I think the good faith exception does not require -- the good faith exception applies, and the exclusionary rule should not be applied to suppress the evidence.

QUESTION: What do you make of the argument which is suggested at -- toward the end of the respondent's brief, based upon, in effect the peculiar risks that computers bring -- I think the argument essentially runs that because of the great currency which computerized information has, the risk of crime is greater than it used to be when we were just dealing with pieces of paper in local police departments?

The police have chosen to use computers. Why shouldn't we recognize the risk involved in using them by saying that if you choose to use them, you are going to be strictly responsible for the accuracy of the information in them?

MR. GRANT: I would disagree that this Court ought to fashion a rule that the police ought to be strictly responsible. I think the risk issue is something this Court could consider, what sort of procedures do the police have in place to audit them.

QUESTION: How do we -- how do we translate the consideration of that risk into a practical rule? What do you think would be an appropriate rule that would reflect that risk?

MR. GRANT: I think in a case unlike this, where I think the error is clearly based on judicial error, not police error, I think that what the Court ought to look at is the objective reasonableness of the arresting officers -- of the arresting officers and whether --

QUESTION: What about the position of the Arizona supreme court, that seemed to say in this modern age to try to assign fault to a particular piece of the Government doesn't quite work, because it's manipulable where you lodge the computer. You could do it in a civil agency as distinguished from a police authority, so it should be not strict liability.

Someone is careless. That seemed to me the position that the Arizona supreme court was taking. It doesn't quite fit when -- in the days when the police officer could call the court and would have gotten accurate information, the shift from those days to the day when you touch a couple of buttons and you get an answer on the screen.

Wasn't the Arizona supreme court telling us the fix on the police station as distinguished for the system is wrong for the computer age?

MR. GRANT: I don't -- I think that goes beyond what the Arizona supreme court said, and I think what the Arizona supreme court said is inconsistent with what this Court has said in its recent decisions over the last several years interpreting the exclusionary rule, which is, it doesn't apply whenever there's a Fourth Amendment violation, it only applies when the purpose of it is most effectively served.

QUESTION: Well --

QUESTION: Isn't the purpose here, though, deterrence, deterrence not of errors that crop up or that take a few days to correct, but of carelessness, and the deterrent purpose is to keep official records updated? Isn't it a powerful deterrent to say, if you don't update within a reasonable time, you can't use the evidence?

MR. GRANT: That may well be a powerful deterrent. I don't think it's a reasonable deterrent in this case, however.

QUESTION: Well, certainly Sheppard and Leon were -- it's not as if they were decided 50 years ago. They were decided, what, 10 years ago? Certainly that's the computer age, isn't it?

MR. GRANT: They didn't involve computers, but yes, computers were available.

QUESTION: They were available, but not as widely used.

But let me ask you this: your test is the objective reasonableness of the arresting officer's conduct, as I understand it and, therefore, if the officer reasonably believed there was an outstanding warrant, the arrest is okay?

MR. GRANT: Well, I think that goes a little beyond my position. I think my basic position is, where the error is the result --

QUESTION: Well if --

MR. GRANT: -- of judicial personnel, not police personnel.

QUESTION: If you describe it broadly, as I did, you would have to agree it would really not matter whether the error was committed by a police officer in the home office or by a judicial officer in the home office --

MR. GRANT: If the --

QUESTION: -- because in either case the officer acted reasonably.

MR. GRANT: I think if you get beyond the situation we have in this case, I think what the Court ought to focus on is the arresting officer and any other officers involved in the investigative team, for lack of a better word.

QUESTION: But if you don't acknowledge that there's any reason -- if the deterrence focuses on the arresting officer, there's no difference between the cases, and on the other hand, if the deterrence focuses on trying to be sure people keep their records up to date, again there's no difference between the two cases. Why should we draw a difference between a judicial mistake of this kind an executive mistake of this kind?

MR. GRANT: I think -- I think the deterrence -- if you look at what happened in this case, an officer was presented with a situation where he witnesses one violation of a traffic law.

QUESTION: Right.

MR. GRANT: He then had a person who admitted a second violation of a Class 1 misdemeanor. He then went to a police computer and obtained confirmation of that violation of the Class 1 misdemeanor, and also obtained information showing that there was an outstanding misdemeanor arrest for his warrant.

QUESTION: So his information would be exactly the same whether the misinformation about the warrant, regardless of who was responsible for that misin --

MR. GRANT: I agree, and I think his conduct --

QUESTION: Well then, my question is, why do you draw a distinction?

MR. GRANT: Well, I think the distinction I draw here between judicial and police is that it's -- there's no need to go beyond that in the facts of this case.

If the Court wanted to go beyond that, I think the distinction ought to lie with -- where the Court ought to draw the line is with the investigating officers and any other officers involved in the investigative team.

QUESTION: Well, Mr. Grant, I thought in U.S. v. Hensley, decided in 1985, that we specifically said the rule is what the police department as a whole knows or doesn't know that counts in determining the Fourth Amendment violation.

MR. GRANT: I don't --

QUESTION: We expressly said it doesn't rest on what the arresting officer knew or didn't know.

MR. GRANT: True.

QUESTION: And you're asking us to alter that, I gather.

MR. GRANT: No, I'm not. I think what I'm saying is consistent with Hensley.

QUESTION: Well, I don't think what you say -- at least what you have been saying is consistent with that at all.

MR. GRANT: I think in Hensley the Court was faced with a situation where the officer who made the stop did not have the personal knowledge, which is similar to this case. What the Court then looked at in Hensley was the instigating officer, the officer who had the knowledge, and if he -- if the knowledge he had was sufficient to justify the stop, then the stop by the arresting officer was good.

In this case, you have an arresting officer who had no knowledge. You don't have an instigating officer. The instigating event came from a judicial --

QUESTION: Yes, but you have a system that the police department has invoked to enable it to function that involves using a computer system so that they can punch out the information right there in their vehicles and find out if there's an outstanding arrest warrant. I mean, that's something the police department itself has made use of for their own purposes, so presumably they have some responsibility for how it functions.

MR. GRANT: I agree --

QUESTION: You would agree with that.

MR. GRANT: I agree they have some responsibility, yes.

QUESTION: Well, would you lose your case if you said that the responsibility is not just that of the investigating officer but also of the entire police department, but not for mistakes on the judicial side?

MR. GRANT: In this case, no, I would not lose my case.

QUESTION: -- Arizona supreme court, though, to have taken a different line. I read that court to say, it's the legal system that installed these computers, and it doesn't matter whether the slip -- there must be a slip, but the question of where the slip is in the court, in the police office, should not be dispositive.

MR. GRANT: I think that's what the Arizona supreme court said, and I think that's inconsistent with what this Court said in Leon and other cases, that there are --

QUESTION: But maybe they were right and we were wrong. I mean, this case is dealing specifically with the problems of computers and our prior cases were not, and I think as Justice Ginsburg has suggested, the point was that the deterrence factor is being, at least in Arizona, tailored to what it sees to be the problem, and it's a problem that cannot be limited just to police departments, it's a problem of the governmental system. Why isn't that a better view than the view that may have been implicit in Leon?

MR. GRANT: Because I don't think applying that broad brush with the exclusionary rule is going to change reasonable actions by officers in the street. This officer essentially had no choice but to do --

QUESTION: Well, then you're right back --

MR. GRANT: -- other than what he did.

QUESTION: -- to the problem that you admit that your rule cannot be that narrow. You -- at least I assume you do, because if you don't do that, then it seems to me you're going to have to take the bitter with the sweet.

And if we were going to say the only person to whom we look is the officer in the street, then I would suppose on the legality of a warrantless arrest and the lawfulness of a warrantless search, and so on, we would not look beyond what happened to be in the mind of the officer who made the search.

So if we're going to have a broad rule that we impute all knowledge of the police to all members of the department in your benefit, then I suppose you've got to take the same -- the burden of that same rule, too.

MR. GRANT: I don't think Whiteley and Hensley go as broad as Your Honor is drawing them. I think Whiteley and Hensley can be more narrowly drawn to focus on the arresting officer and anyone involved in the investigation.

QUESTION: Well, you in any event, leaving the question of where the line is drawn, you accept the view that the mind of someone other than the one officer doing the search or making the arrest may be relevant to the determination of what is reasonable.

MR. GRANT: Yes.

QUESTION: You accept that.

MR. GRANT: Yes.

QUESTION: All right. Then why do we draw the line between the police on the one hand and the larger Government on the other?

MR. GRANT: Because, as this Court has said, the exclusionary rule exists to deter police misconduct.

QUESTION: Well, I realize that, but the Arizona argument said there's somebody else whom you'd better deter, because if you don't include the Government more broadly within your deterrent objective, you have no way, as a practical matter, of inducing care in the use of these computers.

MR. GRANT: I think, first of all, we're beyond far what the facts of this case are, but I think if what you want to deter is officers acting unreasonably, you're not going to accomplish that by --

QUESTION: But that's the -- that is the very denial of the premise upon which I think Arizona was arguing. Arizona was saying, we want to deter more than the officer, because if we don't do that, there's never going to be an effective way of deterring inaccuracy in computers.

MR. GRANT: I don't think Arizona could go beyond what this Court has said, which is I feel what they have in this --.

QUESTION: Well, this Court perhaps can, and why shouldn't it?

MR. GRANT: I think it -- I do not think it's wise to go beyond it.

QUESTION: Why?

MR. GRANT: I think the --

QUESTION: Why?

MR. GRANT: -- exclusionary rule is a narrow --

QUESTION: Why?

MR. GRANT: -- procedural remedy --

QUESTION: Why should it be kept that way? Why should we not consider it relevant that the system maintains computers and therefore a deterrent rule, which is meant to make computer information accurate, should consider the entire system and not just the police?

MR. GRANT: I think --

QUESTION: Mr. Grant, it's not just a problem of what you want to deter, it's also a problem of how effective the deterrent will be, and I would think that part of your argument is that it is very effective when it's applied to the arresting officer, it's a little less effective when it's applied to the entire investigating team, but it is infinitely less effective when you trace it all the way back to somebody who's not even on the police force but in a court who's punching in something in a computer. That person's not going to be very much deterred, is he?

MR. GRANT: I agree the weighing process, the farther away -- the weighing process that is engaged in between deterrence --

QUESTION: In all of these cases, the price we're paying is letting the criminal off, isn't it?

MR. GRANT: Yes.

QUESTION: And sometimes it's worth a deterrent where the deterrent is likely to be very effective, but it's not worth it when it isn't.

MR. GRANT: I agree.

QUESTION: Why do you say it would not be effective? Would it not be true that if you let -- took your view, it would be in the interests of the police department -- this was a 17-day period between the time the warrant was taken out of the system. Why wouldn't it be wise for the State, then, to adopt a system, just leave the warrants in the system for 6 months? It might be helpful in an arrest. Whereas, if you use the deterrent, they would take steps to get them out of the system promptly.

MR. GRANT: Well, I think --

QUESTION: Why doesn't it have a deterrent effect on the system as a whole?

MR. GRANT: I think the system here, if you look at what actually happened in this case, once the system, in this case the justice court personnel, found out that there was a problem with the warrant, that Mr. Evans had been arrested pursuant to a warrant that had been quashed, the justice court personnel immediately took steps to remedy it.

They called the police department, told them that the warrant had been quashed and that he should no longer be held pursuant to it, and they then searched their own system through all the cases that were handled on that same day as Mr. Evans, and found out that there were three other cases where warrants had been quashed by that same --

QUESTION: So incidents that happen on the street do have an impact on what's done with this computer information --

MR. GRANT: Well, I think -- I think what the evidence in this --

QUESTION: And the rule that we've been -- that the Arizona court applied would support making sure they took action of that kind, whereas your view would tolerate saying, well, it's just too bad this fellow got arrested, but we don't really care about those things.

MR. GRANT: No, I think my -- I think my view shows is the deterrent, and based on the record in this case, is that the deterrence of the sort of personnel involved here is not necessary.

QUESTION: Well, if it's not necessary --

MR. GRANT: Justice court personnel are not --

QUESTION: -- it would be totally costless to the State if you lose, because you have already taken steps to avoid the recurrence of this kind of mistake, so what are we fighting about?

MR. GRANT: Well --

QUESTION: That's what you're telling me.

MR. GRANT: I'm --

QUESTION: Isn't that what you're saying, that you've now made sure this will never happen again, which seems to me to suggest that maybe it shouldn't have happened in the first place.

QUESTION: Well, we're fighting about whether evidence against this guy which would have shown him guilty of a crime should be admitted in trial, isn't that it?

MR. GRANT: Correct.

QUESTION: What is -- I guess I'm not clear on one thing. The answer that Justice Scalia gave for you said, it's not effective, and now you're saying it's not even necessary. Which is your position?

MR. GRANT: Well, I'm not saying it's not necessary. I'm saying that --

QUESTION: I'm sorry, I thought you --

MR. GRANT: -- the effectiveness of it becomes less the further away you move from the arresting officer and the people involved in the investigative team, and in those cases the balancing that is required, the cost that is incurred by suppressing relevant and reliable evidence, becomes greater, and the deterrence value becomes less.

QUESTION: If we say that there's a difference between judicial personnel and police personnel, if that's the line we draw, is it plausible that we might also remand this case because it's not clear what the Arizona court would have done based on that hypothesis, or based on that principle?

MR. GRANT: I think that's plausible. I think the evidence in this case strongly supports the finding that there was a judicial error here and not a police error.

QUESTION: Well, but then it's plausible and perhaps possible that you would not get the reversal that you seek if we establish that principle. There would still have to be further proceedings, correct?

MR. GRANT: That's possible, yes.

QUESTION: I don't see why, then, you're not addressing whether or not police clerical error might also be excused. You don't seem to want to address that.

MR. GRANT: Well, I think I -- I think I have addressed that in part of the answers to the questions. I think what -- if we get beyond the issue of judicial error, I think where the line ought to be drawn is with the arresting officers and anyone else involved in the particular investigation that led to the arrest --

QUESTION: Well --

MR. GRANT: -- and here you don't have that. You have -- it was initiated by a justice court --

QUESTION: If you have a warrant division in a large metropolitan police department and the investigation officers are routinely checking with them is the warrant division involved in the arrest or in the investigation?

MR. GRANT: I don't think that sort of involvement suffices to justify application of the exclusionary rule. I think that is too far removed --

QUESTION: How do you --

MR. GRANT: -- from the strong deterrence value of the actual arresting officer and those closely involved in the investigation.

QUESTION: How do you deal with the Hensley case that Justice O'Connor mentioned, if you say it doesn't go all the way back through the police department?

MR. GRANT: Well, I think it goes back -- first of all, Hensley, we didn't get to an exclusionary determination because there was no finding of a Fourth Amendment violation in Hensley, and what Hensley did was go back to the initiating officer, the officer who felt there was reason to stop the defendant, and examined what he knew, the officer who started the whole procedure by asking -- by putting the flier, the stop flier into the system.

Here you don't have that. It was started by a justice court, and the justice court was responsible for its continued presence in the system after it had been quashed.

QUESTION: Is there anything else you'd like to say about the problem of the computer? I mean, as -- are there any facts or any indication about whether the exclusionary rule would or would not lead people to be more careful about these things?

I mean, to be specific, it is bad to let the guilty person off, we all know that, but there's a rule which says if it's unconstitutional the evidence doesn't come in.

Then there's an exception to that rule, is if the officers were in good faith, and I guess that exception rests on the theory that putting that pressure on the officers in a Leon-type case doesn't make any difference, but here, obviously, people are thinking that putting pressure on the system in this kind of case might make a difference because everybody's name might be in a computer, and it's a pressure that would lead people to be careful about that computer generating false arrest warrants which aren't true.

MR. GRANT: As far --

QUESTION: That seems to be what people are driving at, and I just wondered, you're familiar with the operations of these things, and is there any light you can shed on whether the pressure that would be put on computer operators and all those associated with it to be careful not to arrest people where there is no arrest warrant, why that pressure wouldn't be meaningful, or significant, or the same as normal in an exclusionary rule case, or maybe the opposite?

MR. GRANT: I think the need to keep information current, and correct, is demonstrated in this case by what the justice court personnel did when they found out about the error. They took care of it, and they found that there were other errors, and they took care of those as well. I don't think that that justifies application of the exclusionary rule to those sort of people.

QUESTION: But that was in an environment where the Arizona supreme court excluded the evidence. Why are you so sure that these corrective measures were not taken under threat of the exclusionary rule being applied?

MR. GRANT: The justice court personnel took the -- well, the Arizona supreme court had not made its ruling when the justice court employees did their job.

QUESTION: How about the trial court --

MR. GRANT: They did it because of their professional responsibilities as part of the judicial system to make sure that the system they -- the information they put into the police computer system was accurate as possible.

QUESTION: They did not have it wrong --

MR. GRANT: Correct.

QUESTION: -- but they had slipped --

MR. GRANT: Yes.

QUESTION: -- and my question, Mr. Grant, is that the Arizona supreme court is going off on something new, and they're very candid about it, so I'm -- I listen to your argument, and it's true that you are putting this case in the Leon frame. The Arizona supreme court told us that Leon is not helpful as it sees the case, and it was very clear what it was about.

It said, it's repugnant to the principles of a free society that a person should be taken into police custody because of a computer error precipitated by Government carelessness. As automation increasingly invades modern life, the potential for Orwellian mischief grows. Under such circumstances, the exclusionary rule is a cost we cannot afford to be without.

Now, you may say, that's a new tack, it shouldn't be taken, but at least deal with this opinion on its own terms. It's not talking about deterring the policeman, it's talking about keeping the computer system up to date.

MR. GRANT: Well, I disagree with the characterization of the Arizona supreme court opinion as saying Leon is not helpful. I think what the Arizona supreme court simply said was, Leon doesn't apply because that was a case where an officer obtained a warrant, and here there was an invalid warrant. I think they simply distinguished Leon on that basis and then went on to say that --

QUESTION: Well, that's pretty powerful language, and I don't think it's at all ambiguous. What he --

MR. GRANT: I don't -- I don't think Leon is limited in the manner that the Arizona supreme court suggested, that it was limited to searches with warrants authorized by a judge. Illinois v. Krull by this Court demonstrated that that wasn't the case.

It wasn't limited to warrants authorized by judges. It extended the good faith rule adopted in Leon to warrantless searches authorized by a statute, and I think when the Arizona -- the Arizona's supreme court's attempt to distinguish Leon by saying that it simply involved a warrant and this didn't doesn't hold up. I think this Court is -- this case is consistent --

QUESTION: My concern is this court seems to be saying, we're getting to the 21st Century, and the old kind of errors are not going to be the ones that will be of major concern. This is what will be a major problem.

MR. GRANT: I don't think --

QUESTION: Computers that have misinformation.

MR. GRANT: I don't think this situation is as far removed from Leon as that. I think Leon analysis regarding the particular deterrent effects of the exclusionary rule on other than police actors is still valid.

QUESTION: May I ask you one other question about the curative steps that the county took? You said they were well before the Arizona supreme court's decision. Were they before the trial court's order excluding the evidence?

MR. GRANT: Yes.

QUESTION: They were.

MR. GRANT: They were -- the arrest was on January 5th. On January 7th, the -- and the trial court's order wasn't until April. On January 7th, the justice court personnel learned of the error, and on January 7th they took care of it and also did the additional investigation to find three other cases that same day --

QUESTION: I see.

MR. GRANT: -- that had not been quashed -- that had not been removed from the system, excuse me.

QUESTION: What was the curative action, that they just checked the computer entries for that one day, or they completely changed their system? What's the curative action that was taken?

MR. GRANT: It was that they took -- well, first of all, they took the curative action of calling the police department, or the sheriff's office, and telling them to remove that warrant from the system, and also to release any hold on Mr. Evans based on that warrant. The additional step they took was, they went back and examined the files that had been handled by this pro tem justice of the peace on that day --

QUESTION: On that one day?

MR. GRANT: Yes.

QUESTION: But there were no other systemic changes made in the --

MR. GRANT: No, there were no other --

QUESTION: -- basic routine where one person calls the other and tells them to remove it from the warrant list?

MR. GRANT: No. There's no evidence that anything else was done.

QUESTION: So that's the curative action you rely on?

MR. GRANT: Yes.

QUESTION: Thank you, Mr. Grant.

Ms. Carrigan, we'll hear from you.

ORAL ARGUMENT OF CAROL A. CARRIGAN ON BEHALF OF THE RESPONDENT

MS. CARRIGAN: Mr. Chief Justice, may it please the Court:

The exception that the Government seeks is not warranted by any of this Court's decisions, including Leon, and it's not justified.

QUESTION: Well, may I ask you a preliminary question, Ms. Carrigan, and that is this: do we take this case on the assumption that the error that occurred here occurred within the justice court and its personnel? Is that --

MS. CARRIGAN: No, Your Honor.

QUESTION: Is that the assumption?

MS. CARRIGAN: No, Your Honor, I don't think that is at all clear from the record, and if -- and the joint appendix has the entire suppression hearing in it, in which the Government had the burden of proving that the police were blameless. This they did not do.

If you care to go back to that, you will find that they called as a witness the chief clerk of the justice court, who did not have the responsibility for any of this procedure, so it's not at all clear that the justice court employees were responsible.

QUESTION: The supreme court of Arizona decided the case on the basis that it didn't matter, didn't it --

MS. CARRIGAN: That's correct.

QUESTION: -- whether it was the police employees or the justice court employees?

MS. CARRIGAN: That's correct.

QUESTION: So if we were to accept the State's submission here, presumably the supreme court of Arizona or some other Arizona court would have to make a factual determination?

MS. CARRIGAN: I believe so, Your Honor.

The -- the State is relying on Leon and Sheppard and Gates, all of which are search warrant cases, and they're relying on Krull and Peltier, which are statute cases, but in all of those cases, the police action was directed by someone other than the police themselves, and it was based upon an independent assessment that the police action was constitutional. Contrast that with what we have here -- I'm sorry, Your Honor.

QUESTION: No, go on, finish your thought, what you were --

MS. CARRIGAN: I'd like to hear your question.

(Laughter.)

QUESTION: My problem, Ms. Carrigan, is more fundamental than that. I really don't see the slightest -- the slightest deterrent effect that will be achieved by the exclusion of this evidence.

Where you are dealing with the people who are in the business of making an arrest, who are at least on the team, you are telling them, unless you do things right, this arrest and whatever you get from it is going to be inadmissible. That causes them to be careful.

But when you're dealing with somebody who's made a negligent mistake, who doesn't even expect an arrest to occur, how does it possibly deter anybody to say, if you punch a wrong thing into the computer, the mistaken arrests for these traffic tickets -- not showing up for traffic tickets. That's the misdemeanor that the arrest was for, wasn't it?

MS. CARRIGAN: That's correct.

QUESTION: If this person is picked up wrongfully for this misdemeanor violation, anything found on him will not be admissible in evidence. I mean, the person punching it in doesn't want him to be picked up anyway, rightfully or wrongfully.

I mean, I don't see the slightest -- I'm trying to put myself in the position of the person in the judge's office who's punching it in --

MS. CARRIGAN: I --

QUESTION: -- and if somebody wagged a finger at me and said, if you punch in an arrest that shouldn't be in there, anything that's found in the course of that arrest will not be admissible in court. I don't see how that would make me more careful at all.

MS. CARRIGAN: I think the answer is found in Leon itself. First, I think we need to understand that the good faith exception is a misnomer. That's not really what it's all about. It's about objectively reasonable reliance on an independent assessment, and by objectively reasonable, and not subjectively reasonable, we're not focusing on the arrest, we're focusing on law enforcement as a whole, and that's the phrase that appears in Leon.

QUESTION: You're not relying -- you're not answering my -- I mean, my question goes to deterrence, and you're not answering that. You're relying instead on the language of Leon. Now, that's fine. If you say, I don't rely on deterrence, I rely on the language of Leon, that's okay, but my question was, how would anyone conceivably be deterred by the rule that you ask us to adopt? I truly do not see the slightest deterring effect upon somebody's carelessness in the judge's office.

MS. CARRIGAN: I believe that in our brief, Your Honor, on pages 24 and 25, we suggest what -- some alternatives to what should have been done in order to have this be a cleaner computer procedure. The problem that exists here is that no citizen --

QUESTION: Ms. Carrigan, maybe you can clarify this. You are not talking about deterring the policeman who goes into his car and pushes some buttons, you are talking about deterring, not even a particular clerk, you're talking about the Government system of keeping records --

MS. CARRIGAN: That's --

QUESTION: -- do I understand you correctly?

MS. CARRIGAN: That's correct, Your Honor, and what we're saying is that the ordinary citizen who is arrested, has his liberty deprived by a wrongful arrest, doesn't know or care which Government employee is responsible.

The problem is in wedding the high tech of the computer with the horse-and-buggy of the written word, and the problem that exists in this particular case is that you have a system where only the police themselves can get that information, whether it's wrong or right, out of that computer, and you have a procedure where the only time they go back and take something out is under this horse-and-buggy, let's write this down, let's call here, let's call there.

But the problem for all of us is that there is so much inaccurate information going into computers, and there's no housekeeping going on. Nobody is sweeping the store.

QUESTION: Deterrence, Ms. Carrigan. How is the system as a whole deterred? Never mind the policeman, never mind the clerk in the judge's office, how is the system as a whole deterred from being careless if you tell the system, somebody whom you would not get anyway had this thing been kept off of the computer entirely, if you do get him, we're not going to let you get him? I don't see how that deters the system as a whole.

MS. CARRIGAN: Well, I --

QUESTION: If the political process doesn't cause the system to be careful, if people in the municipality don't get enraged against their Government that allows these things to happen, I don't see how the Government is going to be any more careful if it says, you know, people who shouldn't be arrested, if they are arrested, it'll do no good to arrest them. I don't see how that deters the Government.

MS. CARRIGAN: I think the problem is in the word deter, then, because whether you say, deterring negligent maintenance, or encouraging housekeeping, that is what we are asking for.

What we are saying is, the system as it exists today, law enforcement as a whole with its police computers, which are accessible, Your Honor, only by criminal justice agencies, if I want to find out if there's incorrect information in the system about me, if there is unfortunately something in there that says, Carol Carrigan should be arrested, I can't find that out and I can't correct it because I'm not a criminal justice agency.

QUESTION: Well, that addresses the evil that you wish to cure, but Justice Scalia, and I think perhaps some others of us, would like to hear your comments on why the remedy you propose will cure that evil. The question has been put to you whether or not computer operators will be deterred by the exclusionary rule, and you -- I think perhaps you can answer that yes, perhaps no, but I'd like to hear your answer.

MS. CARRIGAN: What I am --

QUESTION: Why would the computer operator be deterred by imposing the exclusionary rule for the computer operator's mistake? By your not saying that there would be deterrence, I assume you think there would be none.

MS. CARRIGAN: What I'm saying, Your Honor, is, we're not asking that the sheriff's clerks work faster, and we're not saying that somehow justice court employees should make their phone calls in the morning.

What we're saying is, possibly, since the authority to arrest comes from a magistrate, the magistrate who issued that warrant issued it because Mr. Evans didn't show up for his traffic tickets. Possibly, that magistrate, when he quashes the warrant, should be able to push his own button and eliminate that warrant from the system, but he can't because he's not a criminal justice agency.

QUESTION: Well, then, as the record of the argument stands now, you do not contend that any deterrence will be achieved by the exclusionary rule. You're still not answering that question.

MS. CARRIGAN: Oh, we do indeed, Your Honor, because --

QUESTION: Well, can we finally get to that, you can tell us why?

MS. CARRIGAN: Because what we're arguing is that if the police are aware that they are relying on inaccurate information in their systems, then they're going to do something about the procedure for maintaining, housekeeping, cleaning, however you want to put it, to make their systems, and they are their systems --

QUESTION: Why?

MS. CARRIGAN: -- and they have responsibility to make them more accurate.

QUESTION: Why would they do that, because then they won't be able to arrest the person at all?

MS. CARRIGAN: Well, I think that --

QUESTION: They still will not get the bad guy.

MS. CARRIGAN: -- that if the police could put more in the computer and they could get away with it, why, then they would have access to all of us and all of our homes, so let's do away with --

QUESTION: They wouldn't be able --

QUESTION: And that would be a very bad thing.

MS. CARRIGAN: Yes.

QUESTION: And maybe you want to say, two wrongs make a right. This person's a criminal, but you have violated his rights by arresting him when he shouldn't have been arrested, and since you have, even though it doesn't deter anybody or anything, we're going to say, the slate is even, but that's not how I understood we have adopted the exclusionary rule in the past. It's not punishing society for doing a bad thing by letting the criminal walk the streets.

MS. CARRIGAN: Your Honor --

QUESTION: No, but isn't it true that you impose a cost on society every time you let a person free, and in order to avoid -- just like when you have negligence, there's costs involved, and that if the cost is imposed on the entire society, the entire society will take steps to hire computer operators who are efficient and honest and so forth.

You're not going to deter the individual computer operator, but you're -- it's a systemic thing, and there is a cost, whenever you suppress a warrant, on society as a whole, and the remedy is that society should make sure these mistakes don't happen.

MS. CARRIGAN: That's correct, Your Honor.

QUESTION: Isn't that the most obvious, elementary kind of deterrence that's all through the tort system, where you impose costs by making people respond -- liable for the negligence of their agents if they harm somebody?

MS. CARRIGAN: I recall the words that Justice Scalia wrote in Arizona v. Hicks when he said that the criminality of the few sometimes must be insulated to protect the privacy of us all.

QUESTION: I agree with that. It's --

(Laughter.)

QUESTION: In fact, it was very well put.

(Laughter.)

QUESTION: But the difficulty I am having is identifying the cost which you are agreeing with Justice Stevens that is being imposed upon the society.

It seems to me there is zero cost. The criminal who previously would not be incarcerated because the evidence would be excluded at his trial will now not be incarcerated because the warrant will never be in the system. What cost have you imposed upon anybody?

MS. CARRIGAN: If we are doing --

QUESTION: None.

MS. CARRIGAN: If we are doing a cost analysis, Your Honor, what we are comparing is the cost of having Mr. Evans tried on a possession of marijuana case and the cost to the rest of us of very real possibility of wrongful arrest without probable cause.

It's important to remember that Mr. Evans was in jail for 2 days before the police learned, oh, he shouldn't have been there under this warrant. What happened was, the initial appearance papers were sent over to the justice court and they realized that this man shouldn't have been --

QUESTION: But in fact he had narcotics in his possession.

MS. CARRIGAN: That's correct.

QUESTION: It's not as though you're dealing with somebody who hadn't committed an offense.

MS. CARRIGAN: But the implication for the rest of us, Your Honor, is that we could be arrested without probable cause and we could be incarcerated for hours.

QUESTION: Let me ask you this: suppose a police officer relies on an informant to obtain the facts to go get an arrest warrant, and the policeman reasonably believes and reasonably relies on this informant and gets an arrest warrant, makes the arrest, and it turns out later that the informant was lying.

MS. CARRIGAN: I think --

QUESTION: Now, that evidence would not be suppressed, I assume, under Leon, at all.

MS. CARRIGAN: The court would look -- you were referring earlier to Hensley. The court would look to the lawfulness of the underlying arrest, but there is a quality --

QUESTION: No, the court would look to see whether objectively the policeman made -- took reasonable action, and if it's determined that he did, we wouldn't keep the evidence out of court, would we?

MS. CARRIGAN: No, Your Honor, you would not.

QUESTION: No, and I don't see how this is materially different. I mean, it's just as terrible for the person who is arrested on the basis of that false information as it is to be arrested for a computer error, isn't it?

MS. CARRIGAN: I -- perhaps I didn't understand your example. The informant was wrong?

QUESTION: Yes, right.

MS. CARRIGAN: But it was a confidential, reliable informant and that is why it passed muster?

QUESTION: Uh-huh.

MS. CARRIGAN: That would, indeed, be terrible, and it would be one of the things that happens all too often, unfortunately, but the problem here is, we're not just arguing for exclusion to correct the Fourth Amendment invasion of Mr. Evans, because we know from Leon and Calandra that exclusion is directed, through deterrence, at protecting the rights of other citizens in future encounters with the police, and that's really what this argument is all about.

QUESTION: All right, but then what is the -- let me go back to that. What -- look, I take it in general, not in the Leon cases, the law thinks that if you say to policemen, hey, watch what you're doing, get your act together, because if you don't and find you really have cause to, they'll throw out the whole conviction, the whole thing will get mixed up. That makes policemen get their act together.

Informants won't get their act together, but what about computer operators? That is to say, is it plausible to think that telling the computer operator, hey, get your act together, otherwise, when the policeman arrests somebody the whole thing's going to get thrown out, and probably he could have arrested him for some other reason if only he'd gotten his act together.

So you tell that to the computer operator. Is it plausible to think the computer operator is more like the informant, or more like the policeman? In other words, is this case distinguishable from Leon?

MS. CARRIGAN: Well, I don't think in the example that we are deterring informants, Your Honor, but what we do have here is a very shoddy procedure, if you will, that was set up by the police themselves in order to maintain their control of their own computer, and that's fine, but if they have sole control, then they have sole responsibility.

QUESTION: Okay. Leave that. Is this case different from Leon? Why? In both cases there's a -- in Leon, there's an arrest warrant. It's invalid, in fact -- a search warrant, I guess, invalid. Here they think there's a warrant and it's not valid. There is none. In both cases somebody else made the mistake. It wasn't the policeman. And so, is there actually a way to distinguish this from Leon? What is it?

MS. CARRIGAN: Well, in Leon -- Leon was decided, I believe, because there was a preference for warrants, and in Leon, the exception was created. I don't think that this Court has any problem with the idea that their -- that the power of the police cannot be unleashed without any controls, and ordinarily, when the police invade someone's Fourth Amendment rights, that evidence can't be introduced against him at trial.

In Leon, what the Court did was say, we would prefer to have officers go for search warrants because there is a measure of control there and there is an assurance that they are at least trying to act in accord with the Fourth Amendment.

What we have here is a decision, 17 days later -- 17 days earlier by a magistrate that there was no probable cause for this warrant to be outstanding because Mr. Evans had appeared, so the difference is that we don't have an independent judicial determination, as we had in Leon, or in Krull it was a statute.

Have I answered your question?

QUESTION: I'm not sure, because I mean, in here, all the people who went to apply for a warrant did go to apply for a warrant. The process worked out just as it was supposed to work out. It turned out that there was no warrant, just as in Leon it turned out that the warrant was fatally defective.

I mean, the policeman in -- was there something else the policeman should have done here, or anyone should have done? There's a mistake here. So was there a mistake in Leon.

MS. CARRIGAN: Precisely. That is what we're saying, is that --

QUESTION: Is it a different kind of mistake?

MS. CARRIGAN: -- this kind of procedure --

QUESTION: What's the difference? What's the difference in the kind of mistake, that's what's worrying me. Is there a difference in the kind of mistake here?

MS. CARRIGAN: The police action in Leon was directed by a magistrate who issued a search warrant. The police action in this case was directed by a police computer. We see that as a very real difference.

QUESTION: Well, if it's determined by the courts below that it resulted from an error made by the justice court, then how do you answer the question? Let's say that's the determination, that this error arose and occurred solely in the justice court. Make that assumption.

MS. CARRIGAN: If I made that assumption, Your Honor, I would try to sit where the trial court judge was sitting, and he said it made no difference, it was still the Government, and the Government had caused this person to be arrested without probable cause.

QUESTION: Well, that's the issue, of course, and Leon spoke in different terms, and so we have to ask why that doesn't control, because we have said that where the error arises in the judicial branch, we don't think the deterrence is such that it justifies excluding the evidence.

MS. CARRIGAN: And what we are saying, Your Honor, is that there -- that this arrest was not based upon any exercise of judicial discretion, because after all, the judge quashed the warrant. This arrest was based upon a ministerial, clerical function, and when Leon was decided, there was great deference given to the fact that it was a judicial determination.

QUESTION: Ms. Carrigan, suppose the negligence here was not on the part of the judicial department, but rather the Arizona Department of Public Works, and let's assume the contraband was discovered not in the course of a mistaken arrest, but rather in the course of providing ambulance assistance to this individual after his car has fallen into a pothole that has been left on the street by the Department of Public Works.

He has this accident. they come to help him, and lo and behold, they find in the car vast quantities of cocaine. Do you think that that evidence of his wrongdoing should be excluded, because after all, the Government had been negligent, and had it not been negligent, it would never have been discovered?

MS. CARRIGAN: Well, I'm not sure I understand your hypothetical. Was this cocaine in plain view --

QUESTION: Big pothole --

MS. CARRIGAN: -- in the trunk?

QUESTION: -- which was left there by the city, negligently, okay.

(Laughter.)

QUESTION: His car falls into it, and when they rescue him, they find the cocaine. It's the city's fault. He would never be in that fix but for the negligence of the city.

MS. CARRIGAN: And it was something --

QUESTION: Is it fair to put him in jail for the cocaine?

MS. CARRIGAN: It was something that was clearly recognizable to a street worker as cocaine and therefore was evidence in plain view?

QUESTION: Yes. Yes, absolutely. No doubt it was -- yes.

QUESTION: The only difference being, the arrest wasn't the product of the negligence.

(Laughter.)

QUESTION: Oh, yes, it was a product of -- there wasn't an arrest. The discovery of the cocaine was the product of the negligence. There's no doubt. If he hadn't fallen into the pothole, they wouldn't have found the cocaine.

MS. CARRIGAN: And this --

QUESTION: Now, you wouldn't try to keep him out of jail, would you?

MS. CARRIGAN: And this was a person who had the authority to arrest, or who made a citizen's arrest because he knew it was cocaine?

QUESTION: Once they saw the cocaine, they certainly had authority to arrest him, assuming it was okay for them to be there, but it wasn't okay for them to be there if it was the product of the city's negligence, right, and it was, because the city had left the pothole.

MS. CARRIGAN: Well, I think probably there might be both a civil and a criminal action following --

QUESTION: I guess, but I really don't -- I don't see a whole lot of difference in the essentials between that situation and what is occurring here.

MS. CARRIGAN: If I'm understanding your question, You're Honor, you're saying, if it is someone other than the police, if it is a justice employee or perhaps a Motor Vehicle Department employee who has something to do with the computer, then where should we draw the line?

QUESTION: Yes, who has something to do with the fact that this person has been discovered to be a criminal.

MS. CARRIGAN: And I think that you have identified a very real problem with what the State is proposing here, because in every case there would then have to be a determination as to who was responsible, and how much involvement that person had in law enforcement under Leon, so as to --

QUESTION: That's why the Arizona supreme court said as far as they were concerned it's Government carelessness and that you shouldn't have to have a trial over about whether it's the clerk in the police station or the -- but let me ask you a question about what you argued in your brief in opposition. There was a strong reply to it.

You had said initially Arizona, with this broad language, wasn't having anything to do with the Federal interpretation of the exclusionary rule, that it was deciding this as a matter of State law. The answer was, no, Arizona in the Fourth Amendment area takes the Federal standard, and that's what it's attempting to apply. Do you think you have an argument?

Let's say this would be remanded to the Arizona supreme court. Worry about your own constitution, which would then leave Arizona to its new way and not involve any Federal question.

MS. CARRIGAN: We have not abandoned our jurisdictional argument, Your Honor. If you will look at the decisions and what was argued below by the State and by ourselves in response, what was really argued was a State statute -- that was A.R.S. section 13-3925 -- and it appears at 35a and 36a of the petition's appendix, and what the Arizona court said was, we don't choose to interpret the Arizona good faith statute that way.

I think there really is a jurisdictional problem here, and I think there's a problem with remand, because if this Court chooses to remand, then I don't know what the Court will say to the Arizona supreme court about how it should interpret its statute.

QUESTION: Well, I suppose what the Court would say, if it accepted the State's submission, was that, proceedings not inconsistent with this opinion. We say that it does make a difference if the error stemmed from the judicial side rather than the police side, and so don't decide this case, if you're deciding on the Federal Constitution, on the assumption that even though the error came from the judicial side, the evidence should nonetheless be excluded. That would obviously leave open, if you have kept it open, any State constitutional question.

QUESTION: May I just ask a practical question, and that is this: do the law enforcement officers in Maricopa County have any way of maintaining the accuracy of computer records over time independent of what happens in the justice court?

MS. CARRIGAN: I think there are two parts to that answer. I think that they have set up a system where the individual justice courts call in to the sheriff. The second part of that answer is that they don't appear to be doing any housekeeping, and our argument is that they should.

If there are no further questions --

QUESTION: May I ask --

MS. CARRIGAN: Yes.

QUESTION: -- just one question? If we were to take the position that I guess the Arizona supreme court took and say that it is simply the system's responsibility here, and therefore we don't care where the error is made, there's going to be suppression, because we want to induce the system to get it right, why shouldn't we take exactly the same position in a Leon situation?

In a Leon situation, in effect, we are saying, well, the judge may have gotten it wrong, but as long as the police reasonably relied, we will in effect allow the evidence in. Why shouldn't we, if we accept Arizona's position, in a Leon situation say, look, we don't care that it's the judge who made the mistake, we want to induce the system to get judges who will be smart enough to get it right. If we take your position, don't we have to overrule Leon?

MS. CARRIGAN: No, indeed, Your Honor, because what Leon says is that we will rest on the assurance that some magistrate or judge doing his job made an assessment on probable cause, but if you look in the Leon decision at page 923, you'll find there are four exceptions to the exception, if you will, and one of those exceptions is if the magistrate abandons his job, or his responsibilities.

So I don't believe -- and the first one, very importantly, is where the police are guilty of submitting reckless or false information, and what the court, the Leon court said about that was that this would be a reckless disregard for the truth that they would not condone.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Carrigan. The case is submitted.

(Whereupon, at 12:00 noon, the case in the above-entitled matter was submitted.)