# Cleary v. Bolger/Concurrence Goldberg

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Goldberg
* Dissenting Opinions Douglas Brennan
United States Supreme Court
371 U.S. 392
Cleary v. Bolger
Argued: Nov. 14 and 15, 1962. --- Decided: Jan 14, 1963
Mr. Justice GOLDBERG, concurring in the result.
I concur in the result. I cannot, however, join the Court's opinion, because I do not find it necessary in the present circumstances to pass upon the question whether Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233, may ever support an injunction against a state official who has received evidence illegally obtained by federal officers even though 'there is no evidence of a purpose to avoid federal requirements and the information has not been acquired by the state official in violation of a federal court order.' For me consideration of that question is obviated by the commendably broad reading which the New York Court of Appeals has given this Court's decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Because I strongly adhere to the principle, stated with clarity in Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 120, 96 L.Ed. 138, that the considerations governing whether a federal equity court should exercise its power here 'touch perhaps the most sensitive source of friction between States and Nation, namely, the active intrusion of the federal courts in the administration of the criminal law for the prosecution of crimes solely within the power of the States,' I would avoid granting of injunctive relief in cases such as this where, because there is a substantial likelihood that the state courts will exclude the evidence at issue, such relief is not essential to vindication of an overriding federal policy governing conduct of federal officers. The virtual certainty of exclusion in the New York criminal proceedings and the likelihood of exclusion in the state administrative proceedings satisfy me that denial of the injunction here will not encourage federal officers to engage in illegal conduct. Thus, deterrence of such illegality, the consideration which in substantial part underlay the decision in Rea, is not a determining factor here and there is no need to grant injunctive relief to effectuate that policy.
In stating my position I rely on the New York Court of Appeals' announced view that it regards Mapp as extending to the 'fruit of the poisonous tree,' a holding arrived at on facts similar to those involved here. People v. Rodriguez, 11 N.Y.2d 279, 286, 229 N.Y.S.2d 353, 357, 183 N.E.2d 651, 653- 654 (1962). It therefore appears that New York will exclude all the evidence here in question in the pending criminal proceedings. With reference to the Waterfront Commission hearing, I am well aware that the New York Court of Appeals has as yet taken no position on the applicability of Mapp in civil and administrative proceedings, and that, indeed, the effect of the Fourth Amendment in civil cases in the federal courts is not totally settled. However, in view of the encouragingly constructive approach of the New York courts to application of the Mapp decision, and of the 'quasi-criminal' character of the pending Waterfront Commission proceedings, I nevertheless take the view, based upon Stefanelli, that the orderly way to proceed in this case is for New York to pass upon respondent's claims first.
The Court's opinion states that 'To the extent that respondent's claims involve infractions merely of the Federal Criminal Rules, we need not decide whether an adverse state determination upon such claims would be reversible here.' I, like the Court, do not reach this issue, but I so conclude because of my stated belief that New York will, under Mapp, likely exclude all the evidence in question here, a possibility which for me, because of my firm belief in the principles of Stefanelli v. Minard, supra, is sufficient to make the granting of injunctive relief here an unwise exercise of federal power. Whether it would be similarly excludible in such state proceedings were respondent's claims premised solely upon federal officers' misbehavior in contravention of the Federal Rules of Criminal Procedure is a question which this Court has not decided. There is a strong interest, which many decisions of this Court reflect, e.g., McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, in ensuring compliance by federal officers with rules having the force of federal law, designed to safeguard the rights of citizens charged with criminal acts. Whether the Supremacy Clause of the Constitution compels state courts to enforce that interest by excluding evidence obtained by federal officers in violation of the Federal Criminal Rules, including reverse 'silver platter' situations wherein illegally procured evidence has been handed over to state officers, will warrant serious consideration in an appropriate case. We need not and therefore do not decide that question here.
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE concurs, dissenting.

## Notes

* ↑ See, e.g., People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478 (1961); People v. O'Neill, 11 N.Y.2d 148, 227 N.Y.S.2d 416, 182 N.E.2d 95 (1962); People v. Rodriguez, 11 N.Y.2d 279, 229, N.Y.S.2d 353, 183 N.E.2d 651 (1962).
* ↑ Compare Bloodgood v. Lynch, 293 N.Y. 308, 56 N.E.2d 718 (1944), with Sackler v. Sackler, 16 A.D.2d 423, 229 N.Y.S.2d 61 (2d Dept. 1962).
* ↑ Compare Rogers v. United States, 97 F.2d 691 (C.A.1st Cir. 1938), United States v. Butler, 156 F.2d 897 (C.A.10th Cir. 1946), and United States v. Physic, 175 F.2d 338 (C.A.2d Cir. 1949), with United States v. One 1956 Ford Tudor Sedan, 253 F.2d 725 (C.A.4th Cir. 1958).
* ↑ Nothing in Gallegos v. Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86, which did not involve activities of federal officers in violation of the Federal Criminal Rules, decides that question.
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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