William H. Rehnquist: We'll hear argument next in Number 88-2018, Illinois v. Edward Rodriguez. Mr. Claps.
Joseph Claps: Mr. Chief Justice, and may it please the Court: This case is brought before this Court on the State of Illinois' petition for certiorari to the Illinois Appellate Court, First Judicial District, Third Division. This matter involves the consensual entry into an apartment by the Chicago police to effectuate the immediate arrest of Edward Rodriguez for a brutal, aggravated battery. In the course of the arrest controlled substances were found which were later suppressed by the trial court. Illinois asks this Court to find that the court below committed error when it affirmed the trial court's suppression of evidence by failing to recognize that a police officer's reasonable reliance on a third party's apparent authority to allow consensual entry is a valid exception to the warrant requirement. In this case, the police arrived at 3554 South Wolcott in Chicago, which was the home of Dorothy Johnson, the stepmother of Gail Fisher. The police found at that location the victim of a brutal, aggravated battery. They saw her jaw swollen, her jaw distorted, black eye and bruises on her neck. They learned from this victim that the assailant in this matter, Ed Rodriguez, was at an apartment that she described as "our apartment". She further told the police that this aggravated battery had occurred that day in that apartment that she described as "our". She went on to tell the police that she would sign complaints for aggravated battery and allow the officers to enter that apartment to effectuate the arrest of Ed Rodriguez. She indicated to the police officers that she would allow them to enter through the use of a key that she described as "my key". She also told the officers that items of her personal ownership... furniture, stove, a refrigerator and other personal property... was still present in that apartment.
Sandra Day O'Connor: Did the officers ask her if she was currently living in the apartment?
Joseph Claps: That specific problem... that specific question was not directly asked. I believe in the record that's before you the police officer indicated that based, on what he asked her and her statements in describing the apartment as "our" and "their", that it was his belief that she was still living there. That, coupled with the fact that the victim told the police officer--
Sandra Day O'Connor: But he didn't ask that question?
Joseph Claps: --He didn't ask that specific question.
Speaker: That was his assumption.
Joseph Claps: He had said that... he described what she said as using the words she "had been living there".
Sandra Day O'Connor: Do you think that under some apparent authority doctrine that there would be an obligation on the part of the police if there is any ambiguity present to ask appropriate questions to determine the basis of the person's assumption of authority?
Joseph Claps: We believe that the test should be an objective test of what the police officers knew and should have known in light of the facts and circumstances at the time. In this particular case--
Sandra Day O'Connor: Well, can they proceed on the assumption that ignorance is bliss or do they have some obligation to inquire?
Joseph Claps: --They have... they cannot proceed on the fact that ignorance is bliss. I think that's primarily the ruling in Stoner v. California. You can't ignore the fact that a person who is a motel clerk does not have the ability to gain... to give entry into an apartment. But in this case, I don't believe we have ignorance is bliss. In this case the victim, whose jaw we later found was broken, certainly was distorted and extended, the victim of a brutal, aggravated battery, indicated to the police that this had just occurred in an apartment that she described as "our apartment". And so it was reasonable under the information given to the police, including the fact that most of her belongings were still in that apartment, that we don't have in this case a situation where ignorance is bliss. It is certainly has to be a test... an objective test of what the police knew at the time. So--
Antonin Scalia: It has to be more than an objective test of what they knew at the time. I mean, suppose they... they meet somebody walking along the street who says, you know, I'd... I'd like... I give you permission to go into my house over there... and that's all he tells him... my house over there. On the basis of all that they objectively know, that's his house. I mean, they have no reason to think it's not.
Joseph Claps: --Well--
Antonin Scalia: Is that enough to let them go in?
Joseph Claps: --In that particular fact... situation, Justice, I would say no. And what I'm talking about--
Antonin Scalia: So it's not just what they know. It's... it's... they do have some positive obligation to make inquiry, don't they?
Joseph Claps: --Yes, they do. The apparent authority doctrine, which, by the way, is utilized by the majority of courts, state and Federal, that have reviewed it... it's... it's clearly a test that's been working in other parts of the county. Illinois is in the minority in terms of rejecting the apparent authority. But it's... it's... in terms of your question, if I... If I was standing in a doorway of an apartment and I told you... the police... that this was my apartment, showed them a lease, showed them identification, all which turned out to be false, that certainly shouldn't be held against the police. They have... you have to review in terms of what they knew or should have known in light of the facts and circumstances.
Antonin Scalia: Well, we... we have two different questions here, I suppose. Apparent authority, if we adopt that, means that there has been no Fourth Amendment violation whatever.
Joseph Claps: That's true.
Antonin Scalia: And the other doctrine of good faith would mean that there has been but the evidence just won't be excluded.
Joseph Claps: That's true.
Antonin Scalia: Now, might not we want to have a much higher standard for the one than for the other?
Joseph Claps: How much higher standard for the--
Antonin Scalia: To say that--
Joseph Claps: --for the intrusion?
Antonin Scalia: --that there is no Fourth Amendment violation at all. Why shouldn't we say it's up to the police to make substantial inquiry in order to... to justifiably go into an apartment? But even if they don't make that much inquiry, if they were operating in good faith and they do go in wrongfully, we might let the evidence come in in a trial.
Joseph Claps: It would necessarily--
Antonin Scalia: In other words, I feel much different about your apparent authority argument than I do about your good faith argument.
Joseph Claps: --I... I understand. The... the... when I say the objective test in terms of reasonableness in light of all the facts and circumstances, I'm not suggesting that the police could carelessly accept someone walking down the street who says, that's my car or that's my apartment, go ahead and search it. It has to be reviewed in light of practical terms.
Antonin Scalia: Whether there is real apparent authority? Are you talking real apparent authority as it's--
Joseph Claps: No, what I'm talking about--
Antonin Scalia: --commonly understood in the common law?
Joseph Claps: --No, what I am talking about... it should not be a test... the police officer shouldn't involve in guessing games. We shouldn't evaluate what they do with the time in light of complicated marital or property rights. It's not that. But it's a test that this Court has used in all warrantless searches. What did the police know at the time to base their decision on? And where in this case you have the victim of an aggravated battery who... the aggravated battery occurred at this apartment and she has a key, and she has told the police that that's where she lives--
Antonin Scalia: But for ordinary apparent authority you'd need more than that. Nobody has apparent authority to act with respect to my property unless I have given that person the apparent authority. Now, in this case if the defendant had given his key to the woman, then I might... I might agree with you that he had clothed her with apparent authority. But she stole the key.
Joseph Claps: --But I--
Antonin Scalia: I shouldn't be... be tagged with... with somebody acting on my behalf or with apparent authority unless I have... it's my fault for giving that person apparent authority. Now, where was... where was the fault here?
Joseph Claps: --Well, I don't think that the record's clear as to how she obtained the key, and I think the record shows that even the trial court was not... did not make a finding as to when and how she obtained the key because there was a... even a change in testimony by Gail Fisher as to how she obtained the fee... the key.
Antonin Scalia: Well. I thought her last story was that she took it off the dresser. It was his key and--
Joseph Claps: That was... that was her last story.
Antonin Scalia: --Well, I'll take the last one.
Joseph Claps: Well, we don't always take the last one. But--
Thurgood Marshall: Didn't she say she used to live there?
Joseph Claps: --Justice, there was some testimony... the first testimony by the police officer where he characterized it as "used". But when... during the suppression hearing, the police officer said that she... her... his recollection was that she "had been living there" and it was his, belief based on what she told him, that she was residing--
Thurgood Marshall: Well, there were--
Joseph Claps: --at that residence.
Thurgood Marshall: --two different stories then, right?
Joseph Claps: I wouldn't suggest there were two different stories. I think it was a characterization that the police officer used.
Thurgood Marshall: But doesn't the police... didn't the police require to show present apparent authority as contrasted to she used to live there?
Joseph Claps: The rule should be that... that the police believed at the time that they made the intrusion that that person had authority. Yes.
Thurgood Marshall: And the policeman is going to justify it as best he can.
Joseph Claps: But... and the policeman--
Thurgood Marshall: Could that account--
Joseph Claps: --is going to testify and the person who gave the consent.
Thurgood Marshall: --Could that account for the fact that later on he said she testified that she lived there?
Joseph Claps: He said that--
Thurgood Marshall: Couldn't that, Counselor?
Joseph Claps: --she had been living there, which was, by the way, corroborated by the stepmother in this case, Dorothy Johnson. She also testified that she believed that her stepdaughter was living at that apartment, not with her.
Thurgood Marshall: Well, obviously, she said whatever the police asked her to say. Don't you gather that from reading it?
Joseph Claps: Gail Fisher or Dorothy Johnson?
Speaker: Huh?
Joseph Claps: Gail Fisher or Dorothy Johnson?
Thurgood Marshall: The witness you're relying on.
Joseph Claps: Dorothy Johnson, the stepmother. I don't think it is apparent that she said whatever the police wanted. She was the stepmother of the victim. That's the information that she said she heard--
Thurgood Marshall: So she had an interest in the case.
Joseph Claps: --She has some interest. It was her stepdaughter.
Speaker: Sure.
Joseph Claps: So did Gail Fisher who, depending on what point in time we're talking about, was either living with him or not.
Thurgood Marshall: In some part it says "I used to live there". I used to. How long ago was the used to?
Joseph Claps: Well, it's our position that, again, that was a characterization and it wasn't a past tense; it was a present tense.
Thurgood Marshall: But she said she used to live there at one time. She said that.
Joseph Claps: I'm not sure that the record's clear that that's what she said.
Thurgood Marshall: But didn't the--
Joseph Claps: The police officer's testimony was that she had been living there.
Thurgood Marshall: --It was testimony that she did say it?
Joseph Claps: Yes.
Thurgood Marshall: So there's a... it's not a clear-cut point.
Joseph Claps: It may not be.
William H. Rehnquist: Well, ordinarily I... it's hard to imagine someone saying "I use to live there". It's very easy to imagine them saying "I used to live there". What... what does the... does the transcript show one thing or the other here?
Joseph Claps: It... it does not.
William H. Rehnquist: Well, does it show the word u-s-e somewhere?
Joseph Claps: It shows u-s-e-d. That's the word that's printed in the transcript. She used--
William H. Rehnquist: Well, isn't that... isn't that the natural way to read that expression? I used to, meaning I did but I don't anymore?
Joseph Claps: --It might, but when the police officer... that was the testimony at the preliminary hearing and the motion to suppress. When confronted with that different language, the police officer said that it was his recollection that she said she had been living there. She didn't use the word "used". It was his word.
William H. Rehnquist: Yeah. So, he may have a different recollection at some other time. But ordinarily, if... if one actually says I used to it means something happened in the past. You would agree with that?
Joseph Claps: Ordinarily. Yes.
William H. Rehnquist: In fact, not just... can you think of any exception to the proposition that when you say "I used to", it in means in the past?
Joseph Claps: No, I can't. No. It would be past. The fact that consents are well established has been the ruling of this Court since the case in Schneckloth v. Bustamonte. What the Illinois courts fail to accept in apparent authority is the exact issue that was left open by this Court in the Matlock case. What the police need to be able to use when deciding an issue on consent is some practical use that they can have to make a decision. The police have a right to know whether their conduct is going to violate the Constitution or the Fourth Amendment.
Anthony M. Kennedy: Well, it's still not clear to me. Are... are you relying on apparent authority as we use it in agency law?
Joseph Claps: No. It's a... it's an objective test, a reasonableness standard based on the facts and circumstances and the reasons why the police acted the way they did, the same type of test that's utilized in all warrantless search situations by the--
Anthony M. Kennedy: So... so it's apparent... it's an apparent authority doctrine for Fourth Amendment search purposes that is quite divorced from agency law purposes, I take it?
Joseph Claps: --Yes.
Byron R. White: Well, is it just a Leon sort of approach?
Joseph Claps: Well, you begin with--
Byron R. White: Good faith belief?
Joseph Claps: --You begin with the... the cases that this Court has found in Hill v. California and Maryland v. Garrison. A mistake of fact should not be held against the police in terms of a Fourth Amendment violation when it's done in good faith. In terms of the exclusionary rule being invoked in this case, then we're talking about Leon and Illinois v.--
Byron R. White: Was Leon ever relied on at all by the state?
Joseph Claps: --Yes. It was. And in fact in the trial court, the state did argue that, notwithstanding everything else, the exclusionary rule should not be invoked in this case because there is no police misconduct to deter.
John Paul Stevens: They did that in the trial court, but how about the appellate court? Did they rely on Leon in the appellate court and argue for an exception from the exclusionary rule?
Joseph Claps: Well, but the... the--
Speaker: I don't read the opinion--
Joseph Claps: --the appellate court opinion was not published but they relied on the trial court. The appellate court said the trial court was right in rejecting apparent authority based on Matlock.
John Paul Stevens: --And also in your questions presented you just make a Fourth Amendment argument. You don't make a good faith exclusion from... from the exclusionary rule--
Joseph Claps: Well, we state--
John Paul Stevens: --in your questions presented.
Joseph Claps: --we state in our question that the good faith actions of the police officers to accept apparent authority--
John Paul Stevens: Is a valid exception to the warrant requirement--
Joseph Claps: --The warrant requirement.
John Paul Stevens: --of the Fourth Amendment.
Joseph Claps: That's right.
John Paul Stevens: Which, as you pointed out with Justice Scalia, is a very different question from whether it's a Leon-type exception from the exclusionary rule.
Joseph Claps: In the cert. petition. But in our brief--
John Paul Stevens: Yes, I know. In your brief you argued something--
Joseph Claps: --Yes.
John Paul Stevens: --you didn't preserve in the cert. petition.
Joseph Claps: In the cert. petition. That's correct. I would like to remain... keep the remaining time for rebuttal.
William H. Rehnquist: Very well, Mr. Claps. Mr. Dreeben, we'll hear from you.
Michael R. Dreeben: Thank you, Mr. Chief Justice and may it please the Court: A search that is supported by the reasonable appearance of consent based on objective facts is a reasonable search within the meaning of the Fourth Amendment. That rule follows from this Court's decisions in Hill v. California and Maryland v. Garrison which, accept the proposition that reasonable mistakes of fact in the course of making arrests and executing warrants do not violate the Fourth Amendment. And the rule serves and is supported by two principle considerations. First, requiring the police to have a reasonable basis for believing that consent is present, based on objective facts, cabins the actions of police officers so that arbitrary actions and intrusions of rights will not occur. The police must have a reasonable basis based on objective facts in order to satisfy this rule.
John Paul Stevens: To what extent in your view do the police have a duty of inquiry in order to support the reasonableness of their decision?
Michael R. Dreeben: Justice Stevens, we do not believe that the police should have a mandatory duty of inquiry in each case. Each case should be judged on it's particular facts, based on the facts that are available to the police when they make their decision. In an ambiguous situation where no reasonable police officer could assume that consent is present without asking further clarifying questions, then I think there would be a duty for the police officers to clarify the situation by asking some appropriate questions. This shouldn't entail, however, a requirement that the police trace down drivers' licenses, look up real estate records and otherwise engage in elaborate investigation that would essentially thwart the police's reliance on consents. These kinds of consent searches develop on a day-to-day basis with frequency when the police are out on a beat and are dealing with situations that are presented to them.
John Paul Stevens: In this case, do you think the police officer had any duty to ask the young lady if she lived there?
Michael R. Dreeben: I think that in the facts of this case, the police officers acted quite reasonably.
John Paul Stevens: Well, I understand that. Do you think they had any duty to ask her if she lived there?
Michael R. Dreeben: No. I don't think that they did, Justice Stevens. And the reason that they didn't have a specific duty to ask that particular question is that they were summoned to the scene of what they understood was a battery victim. They spoke with a woman. They learned that she had been beaten by her boyfriend at an apartment that they... she described as "our apartment". There's testimony that she said that many of her things were there. It's not clear in connection with what question she made that response. But she said that she had a key to the apartment, and she would let the police officers in. This must be a situation that police officers around the country face hundreds of times every day. It's unfortunate, but it is true that there are many domestic situations like this in which a battered spouse or a battered companion seeks the help of the police and seeks the police to place the perpetrator under arrest. And the police in this case were presented with that kind of a model, that kind of a framework. I think it--
Sandra Day O'Connor: Well, it would have been pretty simple for them to ask a few more questions, wouldn't it?
Michael R. Dreeben: --Yes, Justice O'Connor--
Sandra Day O'Connor: And you're asking for an exception to the warrant requirement which is something paramount in the Fourth Amendment requirements. It seems to me you're suggesting that we just open the door wide without any corresponding obligation on the part of the police to make reasonable inquiry.
Michael R. Dreeben: --Justice O'Connor, I think it would be fully appropriate for this Court to hold that appropriate inquiry is necessary when the facts are ambiguous and clarification is what a reasonable police officer would do. To establish a prophylactic rule, a Miranda-type rule, that the police officers must ask this list of questions or the search, based on consent, is invalid, I don't think is necessary to protect Fourth Amendment rights and I don't think it would be an appropriate implementation of the Fourth Amendment in this context. In Schneckloth v. Bustamonte this Court avoided a warning requirement which would have insisted that the police inform people that they have the right to decline to consent to a search. And the major rationale of refusing to apply that kind of a warning requirement is that it would essentially frustrate the validity of the police being able to act on consents. These just aren't the type of searches that... that come about in a structure kind of environment, where a police officer will routinely think of pulling out a card and reading a list of questions. But that's not to suggest that in an appropriate case, questions wouldn't be appropriate. It is not, for example, our position that a neighbor who has a key to let in... you know, to water the plants while someone is away could call the police up and consent to a search and the police would have absolutely no duty or responsibility--
Thurgood Marshall: Well, Counsel--
Michael R. Dreeben: --to find out a little bit.
Thurgood Marshall: --I have a hypothetical. The police come up to a guy... man standing outside of a door and says, we want to go in there and lock up somebody and see if there's any dope in there, is it okay with you?
Michael R. Dreeben: Justice Marshall, I don't think--
Thurgood Marshall: Would you let me finish? He says is it okay with you? You say... and he says, yes. You say he's not obliged to ask any questions?
Michael R. Dreeben: --No. I think in that situation, Justice Marshall, it probably would be appropriate. The only Federal case--
Thurgood Marshall: Well, this is the same case.
Michael R. Dreeben: --No, this is not the same case because there is a context involved here.
Thurgood Marshall: All right. Well, the man was beaten up and he asks them, can I go in there. Is that enough, the fact that he was beaten up?
Michael R. Dreeben: In this case the victim of the battery described the apartment as being her apartment and she produced a key. She brought the police officers to the apartment and she let them in. This would have readily fit in with a reasonable understanding--
Thurgood Marshall: She said she used to live there. Was that a question that was asked of her?
Michael R. Dreeben: --Well, there... there's... I would like to clarify the record for--
Thurgood Marshall: Is it your position that the police shouldn't have such a question?
Michael R. Dreeben: --In this case I do not think it was required for the police to ask, but I think that is a question that the Illinois courts--
Thurgood Marshall: So the police can just walk in wherever they want to walk in?
Michael R. Dreeben: --No, not if they don't have a reasonable basis for doing that.
Thurgood Marshall: They're going to get killed one of these days.
Michael R. Dreeben: The question that arose as to whether the transcript reflects that the police testified that she used to live there--
Thurgood Marshall: She said she didn't. She inherently said she didn't live there.
Michael R. Dreeben: --The testimony reflects that the police understood her to say that she had been living there and she had a key and she would let them in.
Thurgood Marshall: Which meant she didn't live there then.
Michael R. Dreeben: Well, the Illinois courts did not reach that finding. And as the case comes to this Court, the question is whether a reasonable belief by the police officers would have justified the entry, not whether in fact on the facts of this case--
Byron R. White: And she had just been beaten up the night before?
Michael R. Dreeben: --She had been beaten up that very day.
Byron R. White: Yeah, that very day in that apartment.
Michael R. Dreeben: Yes. That's correct. We--
Antonin Scalia: Mr. Dreeben, what other cases do we have where... where reasonableness of... of... of proceeding without a warrant or the reasonableness of the search and seizure is determined not on the basis of objective fact reasonableness but just on the basis of mental impression reasonableness?
Michael R. Dreeben: --Well, Justice Scalia, I would suggest that this is based on objective fact. It's based on all the facts that are known to the officers or that they should have known. But I believe that it's quite clear that in an exigent circumstances case, for example, the test is whether the police have reason to believe that going into a house is needed to preserve safety or to preserve evidence. If in fact it turned out that they heard screams inside the house and it was coming from a television set, I don't think that that would invalidate an entry that was otherwise properly based on probable cause and exigent circumstances. Again, in Maryland v. Garrison, this Court asked the question whether a warrant that permitted entry into one house but not another, but was inadvertently executed by entering the second house, was a valid entry and the Court held that it was a valid entry because in the process of executing a warrant the officers will make reasonable mistakes and, provided that the mistake that they make is reasonable, the Fourth Amendment is not offended. We think that that is a preferable rule to holding that some sort of good faith exception to the exclusionary rule would be extended and should cover this case. The major reason is that police officers do want to and do try to comply with the Fourth Amendment as they are instructed it applies to them. If this Court should hold that the reasonable appearance of authority is not sufficient, responsible police officers and their supervisors will be forced to instruct their officers: no matter how reasonable it appears to you on the street to accept a consent and go in and take care of enforcing the criminal laws as you see them, you should hesitate and perhaps you should come back and discuss with us, perhaps you should go through and wait to see whether probable cause develops and whether you can get a warrant. And that would be quite a substantial disruption of law enforcement--
Byron R. White: xxx some suggestion that they didn't have probable cause in this case?
Michael R. Dreeben: --No, I think, Justice White, in this case they--
Byron R. White: Well, I mean if they didn't have probable cause, they had no business going in the house at all.
Michael R. Dreeben: --No, I think, Justice White, an entry based on consent of someone who has authority to do it or--
Byron R. White: I know, but they went there... they went there to arrest the man.
Michael R. Dreeben: --That's correct, Justice White.
Byron R. White: And they thought they had probable cause, and I guess they did.
Michael R. Dreeben: Yes. I believe that they had properly a probable cause to arrest him and they believe that they had the authority to enter the house, because the person who--
Byron R. White: Without a warrant in order to make the arrest.
Michael R. Dreeben: --That's correct, because it was a consensual entry based on the authority of one who appeared to have the ability to do that.
Antonin Scalia: But the position you're taking is that they could have gone in there without probable cause. They could have gone in there just because they wanted to look around the apartment.
Michael R. Dreeben: Provided--
Antonin Scalia: Since she... since she let them in.
Michael R. Dreeben: --That's correct.
Antonin Scalia: And you say on these facts, if they... even if... even if there hadn't been the beating... the beating is really quite irrelevant, isn't it?
Michael R. Dreeben: That's certainly not a necessary pre-condition--
Antonin Scalia: Right. So without the beating, if they just wanted to snoop around the apartment, so long as what happened here happened, they would have been able to go in and look all around.
Michael R. Dreeben: --I see that my time has expired. Thank you.
William H. Rehnquist: Thank you, Mr. Dreeben. Mr. Reilley.
James W. Reilley: Mr. Chief Justice and may it please the Court: When the Chicago police made the physical entry without a search warrant into Mr. Rodriguez's apartment--
Speaker: xxx search warrant?
James W. Reilley: --Without a search warrant. Without a search warrant.
Byron R. White: Search warrant to go in and arrest him?
James W. Reilley: Not to arrest him, no. But they could not have gone in to arrest him. They could have knocked on the door and if he answered the door, they could have arrested him at the door.
Byron R. White: Well, I know, but they--
James W. Reilley: The Hill case--
Byron R. White: --they didn't need a search warrant to go in... go in the apartment to arrest him.
James W. Reilley: --No, they did not.
Byron R. White: Which is why they went there.
James W. Reilley: That's correct. But when they did enter the apartment without a search warrant, with the key... and we're going to talk about the consent... that did trigger the Fourth Amendment and it obviously calls them for the question of whether the search ensuing entry was reasonable or whether it feel in one of the carefully delineated exceptions to the warrant or arrest warrant requirement. In this case, the government chooses to argue that it was based upon consent, which would require voluntary consent by a person having common authority over the premises. And I think it's obvious in this case that the common authority or actual authority of Gail Fisher did not exist. Consent is really a waiver of a constitutional right, and as we have been instructed in Matlock, the normal situation of a consent would be the defendant himself consenting. In Matlock, it would be a third-party consent, which is what we have here. So it would require the police to ask more questions to determine if the third-party consenting has actual common authority over the premises to be searched. In this case, the consent or purported consent took place off the premises, not at the residence where the ultimate arrest and search took place.
Byron R. White: Do you think the... do you think that the lady's consent would have been adequate while she was living there?
James W. Reilley: While she was living there?
Byron R. White: Uh-huh.
James W. Reilley: That question, of course, really not in the record because we don't know when she moved out. Well, we know she moved out on July 1, 1985. Prior to that if she had been living there, and Mr. Rodriguez had given her whatever authority it was he gave her, then perhaps she could have consented in a limited fashion.
Byron R. White: Well, she did have the key... she did have the key for a while anyway.
James W. Reilley: She had a key for a while and then the record reflects, I believe as Justice Scalia stated, that she did indicate she stole it and the reason she stole it is so she could get out of the apartment during the times when they had arguments. Apparently he would lock her in from the inside. So she did have a key, but the key alone... the key without common actual authority is no different than a sledgehammer. If she has a key but has no authority to enter the premises for any purpose or for all purposes, it might as well have been a sledgehammer and not a key.
Anthony M. Kennedy: Well, it's certainly different from the standpoint of the objective appearances to the officer.
James W. Reilley: Yes, sir. That's correct. The key, however, would dictate along with the scenario of what happened at the scene of the confrontation with the police about the battery that more questions should have been asked. As the record reflects--
Sandra Day O'Connor: Well, if more questions had been asked and she had been asked by the police whether she was living there at the time and had authority to enter and allow others to enter, and she said yes, yes, yes, I... that's where I live and I have that authority, would it be all right then for the police to enter?
James W. Reilley: --Well, I think what Your Honor... you're suggesting, Justice O'Connor, is that if she lied to them... because we now know that the facts dictate she did not... if she lied to the police and carefully structured her lie so that the police actually thought she lived... of course, her answers were different at the scene... she said "I used to live there". But if she had not said that at all and had lied completely, I think that would be the one rare exception that doesn't exist and that I don't believe would happen more often than maybe once every 20 years.
Sandra Day O'Connor: But the police could--
James W. Reilley: But the police would not--
Sandra Day O'Connor: --act on the basis of... of that kind of information if it were objectively reasonable.
James W. Reilley: --Well, if the... if the lies took place at her mother's house, Dorothy Jackson, and not at Mr. Rodriguez's house, I still think the police would be required to go further because she's not there. They would have to ask, well, why are you here? Your children are here. Why are your children here? Obviously she was hostile in this case, as opposed to Matlock. She was hostile. She had been beaten up. She had bruises on her face. And I think the hostility of that confrontation would dictate that the police should go even further. In Matlock, there was no hostility. It was on the premises. The girlfriend of Mr. Matlock came to the door in a bathrobe, as the Court will recall, with a baby in her hand and said, I live upstairs with him and we slept there last night, held herself out as his wife on occasion. There is not question that was in fact common, actual authority. But the... the lie situation, if... again, given the circumstances of this case, the police would still have to go further into it to determine whether she was lying or whether this was the truth.
John Paul Stevens: I wonder if that's right, Mr. Reilley, as a matter of Illinois law. Wasn't the rule in the Shambley case in those subsequent cases that they always inquired into the actual authority... the person... usually those are husband and wife cases.
James W. Reilley: Yes, that's correct, Justice--
John Paul Stevens: There are a lot of times where the wife gave consent and they always asked whether she had authority to do it.
James W. Reilley: --That's correct. The actual authority.
John Paul Stevens: Yeah.
James W. Reilley: What I'm suggesting is the... Justice O'Connor--
John Paul Stevens: I mean, I'm... I'm just wondering whether you're correct in saying that the Illinois courts in these cases would have... would have allowed the entry based on falsehoods told by the wife or the... or the woman who lived there.
James W. Reilley: --No. I... I didn't say that.
John Paul Stevens: Oh.
James W. Reilley: What I'm saying... Illinois courts... when the determination was made later, not on the scene, that in fact that was a lie, the Illinois courts have and consistently applied the doctrine of actual authority.
John Paul Stevens: They've always said actual authority is the rule in Illinois.
James W. Reilley: Yes, it is, and always has been. But I... I... I think the only circumstance where one could at least suggest that they understand why the police acted the way they did is if someone does lie. Of course, that is not the case before us. There is no indication she lied. And I would like to... by the way, Justice Marshall had asked the... whether the language was in the transcript that she stated she used to live there. I filed a supplemental record with this Court which was allowed and which was the preliminary hearing that took place September 11, 1985, about two months after the incident. In that transcript Officer Entress states when asked the question, "Did you ask her where she lived. " he stated... quote... "she stated she used to live there. " That's in the supplemental record, page 16. Later on, a year later at the suppression hearing, Officer Entress was again on the stand and stated in response to the same question, "she stated to me she had been living there. " That's on the joint appendix, page 10. I impeached him with that testimony and he did indicate in questioning that, yes, he did say that a year before when his memory was better of what she said. I think, however, that both of those statements imply that she didn't live there. One may be stronger than the other, and I suggest that the first one is the correct one. But in any event, they didn't ask further questions like where do you live today. They never did do that. But that is in the record. Again I would like to go to the... to the scene of what occurred when Dorothy Jackson called the police. Dorothy Jackson, of course, being also a deputy sheriff as we learned. The police arrived at about 2:30 in the afternoon on a Friday. It's not a court holiday. The courts are open. Judges are available. Prosecutors are available. And upon arrival, Officer Tenza, who did not testify in these proceedings, is a beat officer in a uniform and he questions Dorothy Jackson and Gail Fisher for a few moments and then calls a tactical team as a backup. Tactical officers, among other chores, are drug investigators. They come to the scene and speak to her and I think this... this is an important thing to note... that the whole conversation between Officers Entress and Gutierrez, the two tactical officers, and Gail Fisher and her mother lasted between five and ten minutes. Now, if we are going to talk about reasonable police behavior, it would seem that if the conversation only lasted five to ten minutes and they had to discuss the battery, where the battery took place, and then, as the Court will note, they brought up the question of drugs. And I suggest to the Court that the battery arrest was not the reason that those two officers came there. Something happened in the conversation with Dorothy Jackson, the mother, and Gail Fisher. We know that now because Dorothy Jackson testified. The police said, "I heard about Rodriguez before. " "Isn't he involved in drugs? " And then Entress asked Gail Fisher, "Doesn't he have drugs in the house? " I think he used a foul word and she didn't want to repeat that word but she used the word drugs. Didn't he have drugs in the house? Officer Entress, curiously enough, answers that Gail Fisher did not respond. But Dorothy Jackson, the mother, the police officer mother, says, no, my daughter said yes he has drugs in the house, and I concurred and suggested that there were. Now, I... I would suggest to the Court that at that point we now have a battery situation, but now it has arisen to officers' appearance that there may be drugs here. I suggest that if they had pursued... at this point they still don't have authority... they're more concerned about that... they're not questioning any further with regard... during that five to ten minutes. As a matter of fact, even Officer Entress made a statement, and I--
William H. Rehnquist: Mr. Reilley--
James W. Reilley: --Yes.
William H. Rehnquist: --is this part of your argument devoted to the proposition that, assuming that apparent authority or reasonable belief objectively is enough, that wasn't present here?
James W. Reilley: This argument, Mr. Chief Justice, is directed at the fact that the police officers did not do the necessary work they should have done in a nonexigent circumstance on the scene to obtain valid actual authority to consent.
William H. Rehnquist: Well, but I don't... I don't think that the... the petitioner is really contending that there was actually authority to consent. I mean, the proposition they raise in their petition for certiorari is good faith reliance on a third-party's apparent authority.
James W. Reilley: Yes. So, all right. If the... if there... if they concede, which they obviously do, and all the lower courts have found no actual authority existed, my suggestion is that the circumstances here and what the police were doing do not even give rise to the question that they reasonably believed authority existed, because they weren't concentrating on that. They... they didn't ask the right questions. It would have been in a situation where there was no reason to rush, it was three-and-a-half hours later that they arrived there. The record reflects this beating took place at 11:00 n the morning, by one of the officers, and this is now 2:30. So there's no... there's no exigency, there's no danger of flight. In fact, she said Rodriguez is asleep in the apartment. They could have spent another five or ten minutes asking the right questions. And then they... if they got lies, then, of course, the Illinois courts would not approve that, but they could have found out probably that Gail Fisher would have said no, I don't live there, I moved out three weeks ago. And if they had inquired of that, then they would not have gone in with any type of consent and they could have gone and done what they should have done and that is to either arrest him at the door, obtain an arrest warrant, or if they pursued the line of questioning regarding the drugs, I suggest that under Gates, they perhaps could have applied for a search warrant and with the totality test of Gates perhaps would have gotten it.
Byron R. White: xxx doing there that day?
James W. Reilley: I'm sorry, Justice White. I didn't hear you.
Byron R. White: If she has moved out, what was she doing over there that day? I suppose that's... that is a fact to be taken into consideration.
James W. Reilley: Well, according to the record she testified that between three to five times during that three-week period, she had gone over there and came home late at night according to her mother--
Byron R. White: That's what she testified to.
James W. Reilley: --Yes. Yes.
Byron R. White: But--
James W. Reilley: That she did stay there sometimes.
Byron R. White: --Wasn't that... just the fact that she had been beaten up in that apartment that day, wasn't that something, a fact that the officers were entitled to consider about her in... in terms of her authority?
James W. Reilley: The fact that she was beaten up would indicate, at best, that she was there. She was perhaps a visitor. We know that if she was beaten up there she was a visitor or a guest or an invitee but not necessarily a person with common authority for general purposes to search.
Byron R. White: But it's just a fact.
James W. Reilley: They were still friendly. There's no question about that, friendly to the extent that he beat up as often as he did. But she was there and she came home and I recalled she said to her mother, "We have to talk". The suggestion, by the way, in one of the briefs for the government that she was hysterical is simply not supported by any of the evidence in the record because there's no evidence of it at all. She was calmly there talking to her mother, who called the police, and then the police arrived.
Byron R. White: Well, we're going... I... I take it this discussion goes to whether or not there was a Fourth Amendment violation.
James W. Reilley: There's no question in our minds there was a Fourth Amendment violation. The... the crossing of the threshold of that door without any authority at all is certainly not a reasonable reliance authority by these officers.
Byron R. White: Well, suppose it was... suppose we agree with you that it was, does that determine the admissibility?
James W. Reilley: Well, I think Your Honor is asking whether or not the exclusionary rule should apply in this circumstance. I would suggest that the cases that we have been instructed by this Court suggest that under Leon or under Maryland v. Garrison that [inaudible]--
Byron R. White: But does that--
James W. Reilley: --it should apply in this case.
Byron R. White: --Is that issue still open? Let's suppose we agree with you there was a Fourth Amendment violation, is the case over or is admissibility still to be considered on some other ground?
James W. Reilley: I don't what other ground except what the government--
Byron R. White: Leon.
James W. Reilley: --Under Leon? All right. The... I would suggest that the purpose of the rule, as this Court has said, is to deter unlawful police conduct. I cannot think of a more precise case--
Byron R. White: Well, that isn't my--
James W. Reilley: --for this is the... this is the rule--
Byron R. White: --that isn't my question, whether Leon should apply. But is the... is the issue of whether Leon applies still open? Has that ever been determined in this case?
James W. Reilley: --The government, as far as I know, has never raised that issue whether Leon applies. The lower court... in the trial court, as I... as I recollect for certain, the government argued that there was actual authority. And then, we, of course, argued that there was not and that the Illinois law is clear on that point. It was Judge Schreier in his comments inviting counsel for both sides to discuss whether the doctrine of apparent authority, using that word loosely perhaps--
Byron R. White: Yes?
James W. Reilley: --but apparent authority applies or whether there should be some exception to that. He ruled that there was not. He didn't get into Leon or any exception. The appellate court, the intermediate court, in an unpublished opinion, did not discuss the Leon exception.
Byron R. White: Did the state argue Leon--
James W. Reilley: They did not.
Byron R. White: --in the appellate court?
James W. Reilley: They did not. It was not mentioned, and the court cited--
Byron R. White: Was it argued in the trial court?
James W. Reilley: --It was not. The appellate court cited Matlock and cited perhaps six or seven Illinois state court cases on the subject of actual authority. So the issue of Leon was never raised at any level. I think it would be appropriate to distinguish, as the Solicitor talked about, Maryland v. Garrison. As this Court is aware, Garrison involved a search warrant, where the police had done an extensive investigation prior to obtaining the search warrant to determine who resided on the third floor of that building. They went to the building itself and checked the description of the building, which matched the informant's. They went to the gas and electric company to see if there was anyone other than McWebb, the proposed defendant, living on the third floor. They got a negative answer. They checked with police records and found that the address and physical description matched the description of the informant. This is the work that they did. When the warrant was executed, of course, we know that they found two apartments on the third floor and then made a mistake. I suggest that that's relevant here because the officers here had certainly ample time to not only ask the right questions, but to do a little further checking. They could have... they could have checked when they got over there to see if... who was on the doorbell. They could have asked the landlord, perhaps, who was on the lease. I mean... or make a phone call or ask the right questions. They had the opportunity to ask the mother, who moved her daughter out three weeks before... and her children out. And Judge Schreier found that to be very convincing... that her children were present at all times... in fact were there that morning. Dorothy Jackson had to have a friend come over to babysit the two young children while she and Gail Fisher were told by the police to go back to Mr. Rodriguez's apartment. If she wanted to press charges for battery, she had open the door with the key. She was misled and told that. That, of course, was not true. They did not need her for that purpose. If they wanted to arrest him for battery, which they certainly could have, there would have been a different way to do it and a proper way to do it. Either by, under Hill, knocking, when answers to arrest him. Or obtaining an arrest warrant, which was certainly proper. Or even under Illinois law, they could have sent him a summons in the mail to appear in court for at that time a misdemeanor. And I note that no felony battery charge was ever filed against him. I suggest to this Court that in Payton the Court stated that the magistrate's determination of probably cause will protect the citizen from the zealous officer. I suggest these were zealous officers but the pretext of their going to Rodriguez's apartment was to look for drugs. The record certainly supports that assumption. And again, I suggest that if they wanted to that, they could have avoided all of this problem we have now with this case. And they could have obtained, or at least attempted to obtain a search warrant, if they had pursued it correctly. And I am certain that that warrant probably would have been upheld. I hypothetically suggest to you that if the... Gail Fisher had been charged with possession of the cocaine in this house and the marijuana, and she moved to suppress the evidence, that the government would be standing here suggesting to you that she didn't have standing to object to that search because under the facts as we know, she probably did not. She didn't live there. She had a key, but again, the key without authority is meaningless. And I would suggest that no general authority for common purposes that she probably would not have standing, and I believe standing is a mirror of consent. The same elements would apply, in my judgment. Judge Schreier specifically found that... and I think these findings are important, they were upheld by our intermediate appellate court and, of course, the Illinois Supreme Court refused to review it... that Gail Fisher was not a usual resident, let alone an exclusive resident; that she was rather infrequent a visitor, a guest or an invitee; that she did not contribute to the rent; that she was not on the lease... the fact of her having the key was not a substantial piece of information to Judge Schreier; that she was not allowed to be in the apartment when he was not there; that she was like a guest who only had access to the apartment when the host was present.
William H. Rehnquist: Of course, Judge Schreier was discussing the thing in terms of actual authority, wasn't he?
James W. Reilley: Yes.
William H. Rehnquist: Because that's all Illinois law allowed.
James W. Reilley: Yes, Mr. Chief Justice, that's correct.
William H. Rehnquist: And if... if we were to find that this apparent authority... or Hill, Garrison, that sort of thing that you have been discussing... maybe these facts would have different significance.
James W. Reilley: Well, I think he was... obviously, he was discussing it in terms of Illinois law and he so stated. That is for sure. But I think the factual findings are things that, in addition to his feeling about Illinois law, he's also indicating what the police officers didn't do, what they didn't learn from this. They could have found out some of these things. Maybe not in precise a detail as a lawyer or a judge may ask, but certainly, the collective judgment of those officers had to be at least 20 to 25 years of experience. And if we're going to take out the buffer of a... in Leon, of a judge signing a warrant or the buffer in Krull of a legislature passing an ordinance, then we certainly must adopt some standard that the police should not go below in terms of asking the right questions. They certainly didn't ask any questions in this case, which would bring them to... even be able to argue to this Court that they had a reasonable belief that there was authority, especially in view of the red flags that were noted to them at the scene. The hostility, the beating, off the premises where she allegedly consented, the fact that she said "I used to live there", her children being present, her clothing being present. All those red flags and the police didn't inquire. I can't believe they could stand here and suggest to this Court that they had a reasonable belief based upon reasonable conduct. Their conduct was not reasonable.
Byron R. White: Did the police know at the site or at the scene that some of her belongings were still in the apartment?
James W. Reilley: They didn't inquire about the belongings at the scene.
Byron R. White: Well, did they know it? Did she ever suggest that or not?
James W. Reilley: No. In fact, the--
Byron R. White: This... this just came out at the suppression hearing?
James W. Reilley: --It came out at the hearing, Justice White, that she had some of her heavy belongings... her stove, her refrigerator, whatever... where left there either on loan or being stored. But the court didn't feel in its findings that that was even important. Judge Schreier made no findings concerning that. He was more, I think, concerned with the fact that she moved her children out and her clothing. I would suggest that the doctrine of suppression should apply here because the officers' conduct, the standard that the state suggests, simply would not apply to this set of circumstances. The police did not act in any reasonable good faith and their conduct would seem to be a direct affront to the Fourth Amendment. It would seem that suppression here would be direct to the police, would be a direct line from Washington to the police departments, who certainly are educated by prosecutors. They have seminars. They knew about consent because they asked for it in this case, or at least thought they were asking for it. So they must have know about the Schneckloth case, or maybe not the name, but they knew the doctrine. So there is no doubt that the theories of this Court get down to the police on the street. And if suppression is upheld in this case, they'll learn that the next time they have a situation like this, they should ask the right questions and perhaps later on some other rule might apply. I would respectfully ask this Court to uphold the decision of the Illinois appellate court.
William H. Rehnquist: Thank you, Mr. Reilley. Mr. Claps, do you have rebuttal?
Joseph Claps: Yes, Justice... Chief Justice.
William H. Rehnquist: You have four minutes remaining.
Joseph Claps: I want to first say that the statement by counsel, although I'm sure it wasn't on purpose, is not correct about what was argued before the trial judge in the suppression hearing. And although it's not in the joint appendix, I believe it is in the record that the Court has on page 137, the assistant state's attorney, Gibbons, in arguing to the judge said, "In that case, Judge, the reason for applying the exclusionary rule in such instances of good faith relied upon the police... relied upon by the police, it would do little in terms of deterring this conduct and future protections afforded by the Fourth Amendment. " And he goes on to cite United States v. Leon and Massachusetts v. Sheppard. So the exclusionary concept was argued before the trial judge and it was in our appellate brief... not Leon, but we cited United States v. Calandra and stated the purpose of the exclusionary rule would not be served by the suppression of evidence. So we did make that argument in the appellate court and the trial court. And although we didn't put it directly in the question for review in the cert. petition, we did in the body of the cert. petition cite Leon and argue that its the... invoke the exclusionary rule would not... would not be a purpose here to deter any police misconduct. And to suggest to this Court that it would deter police misconduct, I think is not true. Where they reasonably, under the circumstances... an objective test in a balancing... where they act based on the information before them, the Fourth Amendment should not be invoked. It's not true that the police officers were not aware that she had property there. In the testimony of the police officer Entress, he said she told him that her items of personnel... personal property were still there. And in terms of what counsel argues to you about the reverse of this case... that is, a privacy interest by Gail Fisher. She would have a privacy interest. You don't have just have one place, one premise, one piece of property that you an invoke a privacy interest in and therefore seek the protection of the Fourth Amendment. It is very possible that... in fact, I believe it's true that Gail Fisher would have had a privacy interest in that apartment on California Avenue to have sought the protection of the Fourth Amendment, just as she would perhaps in the apartment that she was staying in. She was... there was testimony she at that apartment every day. She stayed there a few nights, but she was there every single day. If there was anybody that was excluded from that apartment during the time period, it was her children, not her. So her privacy interest was still there, and if she had a privacy interest there, then certainly under the cases that this Court have found, she would have the ability to give consent or at least, in terms of the police conduct, for them to rely on her permission, her consent to allow the entry for the arrest. This isn't a case about drugs. This is a case about the police acting immediately to arrest a person who committed a brutal, aggravated battery, and what was found incident to that lawful entry should not be suppressed.
William H. Rehnquist: Thank you, Mr. Claps. The case is submitted.