Clerk Memo

Transcription

1 Illnos State Unversty ISU ReD: Research and edata Illnos v. Gates 462 U.S. 213 (1983) U.S. Supreme Court papers, Justce Blackmun Clerk Memo Alan S. Madans Assocate Justce, US Supreme Court Follow ths and addtonal works at: Part of the Crmnology and Crmnal Justce Commons Recommended Ctaton Madans, A. S. Clerks Memo, Illnos v. Gates, 462 U.S. 213 (1983). Box 367, Harry A. Blackmun Papers, Manuscrpt Dvson, Lbrary of Congress, Washngton, D.C. Ths Conference Note s brought to you for free and open access by the U.S. Supreme Court papers, Justce Blackmun at ISU ReD: Research and edata. It has been accepted for ncluson n Illnos v. Gates 462 U.S. 213 (1983) by an authorzed admnstrator of ISU ReD: Research and edata. For more nformaton, please contact ISUReD@lstu.edu.

2 : : v. o oc J jon d, dec n g af ajor ty o o on,. r ch o reach n totalty 0f c r c r or f ndng pr obable cau e for the warrannt. an non arg g h go d-fath 1 ould be reached, t at rul sh u d b_ mo fed, an that p obable cause dd exst wth t he Ag lar-spnell framework. JPS as crculated a dssen _ g op1n1an, 'ch WJB hac joned, argung t hat, even der a total y of th_ crcumstanc s approach, there was not probable cause to obtan the warrant to search the house. JB s workng o a parate dssent In my vew, JPS may well have the best of the arguments here, but I assume that you contnue to beleve that the nfor a- ton avalable to the polce consttuted probable cause. I r commend that you jon WHR's opnon. If so, Although BRW makes a dec nt argument that the Court has jursdcton to decde the good-fath excepton queston, he fals entrely to deal wth 's d cusson of by as a prudental matter, f not a jursc onal on, t would be napproprate to decde that ssue n h cas th n you hould stck wth your Conference vote to

3 - 2 - decde ths case on the s 1ssue on whch cert was granted orgnally. On the me rts of t he Fourth Amendment queston, WHR replaces the two prongs of t he Aqu lar-spnell test wth a totalty o f the crcumstances appr oach whereby the nformer's relablty and bass of knowledge are relevant consderatons but not ndependent requrements. I fnd ths treatment of t he problem, whle "mushy," more straghtforward and workable than BRW's analys s o f r how the affdavt satsfes Agular and Spnell. WHR's approach of e xam nng the nformaton avalable to the polce n common sense terms, rather than BRW's approach of placng that nformaton n dscrete categores, s more lkely to result n coherent and consstent Fourth Amendment law. In short, I thnk WHR has done a good job; f hs draft becomes the opnon of the Court by ganng your vote and the CJ's, the Court wll have come around to your old court's approach n Spnell. No WHR Fourth Amendment opnon would be complete wthout a few curveballs; I thnk you may wsh to request changes concern 1ng some of the followng:,, the frst full, 1. On p. 6, ln the last two sentences, consderaton fashonng a good WHR refers to "an mportant 1n fa t h excepton" and to "consderaton of the modfcaton of the exclusonary rule." I would prefer to say "an mportant consderaton n determnng whether to fashon a good fath excepton" a nd consder ton of hether to modfy the exclusonary rule." 2. On p. 11, th cond, the long concludng sentence c th t t

4 I dd n t. The letter dd predct that Lance would fly from Chcago to West Palm on May 5t h, but dd not predct the behavor detaled n the remander of t hat sentence. 3. On p. 20, the last sentence of t he carryover paragraph ctes the Model Code o f Pre-Arragnment Pr ocedure. The Code states that probable c a use does not mean "more probable than not." LaFave also takes ths poston, but notes that the Court's pror c ases may suggest that a greater than 50 % lkelhood s r equ red. I would ether delete ths ctaton or add a cte to LaFave's more comprehensve dscusson of the problem: W. LaFave, Search and Sezure 3.2(e) (1978). 4. On p. 22, the frst full,,, I would elmnate the quot e f rom a nd ctaton to BRW's dssent n Mranda. 5. Later n the same paragraph, WHR twce ndcates t hat Spnell has made t mpossble to make use of anonymous tps. Th s exaggeraton comes across as farly slly; the value of a nonymous tps s that they clue offcers n to the need to 1nvestgate, and nvestgaton need not take the form of searches conducted wth a questonable degree of objectve suspcon. 6. The last two sentences of,,1 of n. 14 assume that Sue Gate s orgnally ntended to fly back to Chcago, but revsed her travel plans. WHR's pont s that the naccuracy n the nformer ' s pred cton of Sue's travel plans s nsgnfcant because travelers ofte n change ther plans. There s no bass, however, for the assumpton that Sue n fact changed her plans.

5 - 4 - If WHR wll take the more mportant of these changes (my ran g of ther mportance would be 4, 1, 6, -/ 2, 3, 5), I r ecommend that you jon hs opnon. a ASM