# Massachusetts v. Painten/Dissent White

* Court Documents
* Case Syllabus
* Per Curiam Opinion of the Court
* Concurring Opinion Fortas
* Dissenting Opinion White
United States Supreme Court
389 U.S. 560
Massachusetts v. Painten
Argued: Oct. 18, 1967. --- Decided: Jan 15, 1968
Mr. Justice WHITE, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
The Court granted certiorari because the rule of law applied by the Court of Appeals to the facts found by both it and the District Court raised troubling and difficult questions about the restrictions imposed by the Fourth Amendment on evidence that may be admitted at a criminal trial. The Court now says, quite rightly, that the record in this case is stale and the facts unclear. We have, however, a set of facts found by a United States District Court and approved by a Court of Appeals. Determining what legal consequences should follow from those facts is difficult, but is the task normally entrusted to this Court. I would accept the facts found by two federal courts and decide the questions of law presented to us.
The relevant facts foundbelow are as follows. Two police officers, having a suspicion that respondent had committed felonies but not having probable cause to believe that he had committed them, went to the door of respondent's apartment. Their motive, the courts below found, was to arrest and search, whether or not their investigation provided the probable cause that would make an arrest and search constitutional. This plan was not communicated to respondent, who when he came to the door was led to believe the officers wished only to speak to him. Told no more than that the officers wished to ask questions, respondent asked them to wait a minute, closed the door, tossed a paper bag onto a fire escape, returned, and let the officers enter. The officers did nothing to respondent but ask questions; while doing that another officer, posted below, who had seen the bag drop, walked through the apartment and out onto the fire escape, where he found guns and bullets in the bag. The officers arrested respondent, and undertook a complete search of the apartment incident to the arrest.
On these facts the District Court concluded that '(s)ince the officers had no probable cause to arrest when they entered the apartment they cannot retroactively validate the entry or arrest by reliance on what they discovered as a result of the illegal entry.' 252 F.Supp., at 857. The Court of Appeals agreed, saying that the officers 'set out to arrest and search (respondent) in the hope that evidence would develop,' and that 'since their actions were improper, the police were not entitled to the fruits.' 368 F.2d, at 144. The question is thus whether the fact that the officers were not truthful in telling respondent their intentions required that the evidence found by the policemen after they entered the apartment be barred from admission at respondent's trial as a 'fruit' of unlawful police conduct.
The position of the courts below must rest on a view that a policeman's intention to offend the Constitution if he can achieve his goal in no other way contaminates all of his later behavior. In the case before us the syllogism must be that although the policeman's words requested entry for the purpose of asking respondent questions, and the policeman-on being allowed to enter did nothing to respondent but ask questions, the 'fruits' of the policeman's otherwise lawful request to enter and question-the bag tossed out of the window and into a place where it could be seen from the street-should not be usable by the State. This is because the policeman was willing, had his lawful conduct not developed probable cause justifying respondent's arrest, to search respondent's apartment unlawfully in the hope of finding evidence of a crime.
That such a rule makes no sense is apparent when one sees it in the context of an abstruse application of the exclusionary rule, imposed on the States as the only available way to encourage compliance by state police officers with the commands of the Fourth Amendment. See Mapp v. Ohio, 367 U.S. 643, 652-653, 81 S.Ct. 1684, 1690, 1691, 6 L.Ed.2d 1081 (1961). Because we wish to deter policemen from searching without a warrant, we would bar admission of evidence Officer McNamara discovered by ransacking respondent's apartment without a warrant or a basis for warrantless search. The expanded exclusionary rule applied in the opinions below would be defensible only if we felt it important to deter policemen from acting lawfully but with the plan-the attitude of mind-of going further and acting unlawfully if the lawful conduct produces insufficient results. We might wish that policemen would not act with impure plots in mind, but I do not believe that wish a sufficient basis for excluding, in the supposed service of the Fourth Amendment, probative evidence obtained by actions-if not thoughts-entirely in accord with the Fourth Amendment and all other constitutional requirements. In addition, sending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources. I voted to grant certiorari in this case in the hope the Court would state that the Court of Appeals erred in its view that a policeman's unlawful subjective intentions require exclusion of evidence obtained by lawful conduct, and I would not dismiss while the opportunity of so stating remains.
A second ground that could support a view that the officers' entry was unlawful is the position that the policemen's untruths their failure to tell respondent of their plan-'vitiated' his consent to their entry. I might not agree with, but I could understand, a position that police officers acting without a warrant can obtain lawful consent to enter a home and ask questions only by explaining to the occupants that they have a constitutional right to deny admission, even to officers of the law conducting an authorized and necessary investigation. But I cannot understand a view that consent is permissible if given in response to a mere request to enter uttered by a policeman wishing only to ask questions but not if given to a policeman who says he wishes to question but in fact intends to do more. If the policeman does more we will bar admission of the fruits of his illegal action. But if he does only so much as he has told the occupant he will do, and so less than he was willing to do, the occupant's consent was to the conduct which occurred; in that case there is no reason to exclude what the policeman learns from doing what the occupant consented to his doing.
There remains a possibility that respondent's confinement may offend the Constitution. When the officers entered respondent's apartment, they had permission to ask questions but no permission to search. Had they looked in closets or drawers, or even in a closed paper bag lying in view, they would have been acting in violation of the Fourth Amendment. The paper bag containing the guns was on a fire escape attached to an apartment other than respondent's, but that alone did not give the officers permission to seize it. The Fourth Amendment's protection extends to 'effects' as well as to 'persons, houses, papers.' Of course 'abandoned' property may be seized, Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960), but neither court below inquired whether Officer Rufo reasonably believed this bag had been abandoned or instead should reasonably have thought respondent had set it on the fire escape temporarily without wishing to abandon it, cf. Rios v. United States, 364 U.S. 253, 262, n. 6, 80 S.Ct. 1431, 1437, 4 L.Ed.2d 1688 (1960). If the bag was not abandoned, another question of fact is relevant: whether Officer Rufo saw that the bag contained guns before he opened it, or opened the bag and then saw the guns. Since neither the District Court nor the Court of Appeals reached these issues, I would vacate the judgment of the Court of Appeals and remand the case to the District Court to determine whether Officer Rufo could have believed that the bag had been abandoned and whether the bag was searched before or after guns were observed.

## Notes

* ↑ 386 U.S. 931, 87 S.Ct. 955, 17 L.Ed.2d 805 (1967).
* ↑ 368 F.2d 142 (C.A.1st Cir. 1966).
* ↑ 252 F.Supp. 851 (D.C.Mass.1966).
* ↑ One officer 'stuck his hand into' the pocket of respondent's companion, one Ash, and 'found about $200.00 in ten and twenty dollar bills stuffed in the pocket.' 252 F.Supp., at 856. The bills were apparently not introduced at respondent's trial, but the officers' conduct in searching Ash without justification may well have influenced the courts below on the question of the officers' intentions.
* ↑ Mr. Justice FORTAS, although he does not disagree with the view that the Court of Appeals erred in issuing the writ of habeas corpus for the reasons which it gave, would nevertheless dismiss the writ of certiorari because the record is stale and inadequate with respect to the issue of abandonment. But if it was error to issue the writ of habeas corpus on the grounds relied on by the Court of Appeals-and there is no infirmity in the record with respect to this question-then the judgment should be reversed unless there is some other basis for the issuance of habeas corpus at the behest of this state prisoner. If the record is unclear with respect to this possible additional ground-here the search of the bag and the seizure of the guns-and it is thought undesirable to have the record reopened and the question clarified, the case should simply be reversed, not dismissed so that the erroneous judgment remains in effect. Habeas corpus should not issue and Painten should not be released unless the record clearly justifies such a judgment.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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