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MARSHALL, J., concurring

437 U.S.

overborne. Due process of law requires that statements obtained as these were cannot be used in any way against & defendant at his trial.

III For the foregoing reasons, the judgment of the Arizona Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, concurring.

I join the opinion of the Court, which holds that petitioner's rights under the Fourth and Fourteenth Amendments have been violated. I write today to emphasize a point that is illustrated by the instant case, but that applies more generally to all cases in which we are asked to review Fourth Amendment issues arising out of state criminal convictions.

It is far from clear that we would have granted certiorari solely to resolve the involuntary-statement issue in this case, for that could have been resolved on federal habeas corpus. With regard to the Fourth Amendment issue, however, we had little choice but to grant review, because our decision in Stone v. Powell, 428 U. S. 465 (1976), precludes federal habeas consideration of such issues. In Stone the Court held that, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id., at 494 (footnotes omitted). Because of this holding, petitioner would not have been able to present to a federal habeas court the Fourth Amendment claim that the Court today unanimously upholds.

The additional responsibilities placed on this Court in the wake of Stone become apparent upon examination of deci


MARSHALL, J., concurring

sions of the Arizona Supreme Court on the Fourth Amendment issue presented here. The Arizona court created its "murder scene exception" in a 1971 case. State v. Sample, 107 Ariz. 407, 409-410, 489 P. 2d 44, 46–47. A year later, when the defendant in that case sought federal habeas corpus relief, the United States Court of Appeals for the Ninth Circuit ruled, as we do today, that the exception could not be upheld under the Fourth Amendment. Sample v. Eyman, 469 F. 2d 819, 821-822 (1972). When the Arizona Supreme Court next gave plenary consideration to the issue, prior to our decision in Stone, it apparently felt bound by the Ninth Circuit's Sample decision, although it found the case before it to be distinguishable. State v. Duke, 110 Ariz. 320, 324, 518 P. 2d 570, 574 (1974)."

When the Arizona Supreme Court rendered its decision in the instant case, however, it took a different approach. The decision, issued nearly a year after Stone, merely noted that the Ninth Circuit had “disagreed" with the Arizona court's view of the validity of the murder-scene exception. 115 Ariz. 472, 482 n. 4, 566 P. 2d 273, 283 n. 4 (1977). It thus created an effective "conflict" for us to resolve. Cf. this Court's Rule 19 (1)(b). If certiorari had not been granted, we would have left standing a decision of the State's highest court on a question of federal constitutional law that had been resolved in a directly opposing way by the highest federal court having

1 In its Mincey opinion, 115 Ariz. 472, 482, 566 P. 2d 273, 283 (1977), the Arizona Supreme Court indicated that one case other than Sample and Duke involved the murder-scene exception. State ex rel. Berger v. Superior Court, 110 Ariz. 281, 517 P. 2d 1277 (1974). The two-sentence opinion in the latter case, however, provides no explanation of the underlying facts and does not cite to either the Arizona court's or the Ninth Circuit's decision in Sample. There is thus no way to determine whether the situation in Berger was in any way comparable to those in Sample, Duke, and Mincey, nor any way to determine whether the Berger court simply disregarded the Ninth Circuit's Sample decision or instead, as in Duke (decided just two weeks after Berger), viewed Sample as distinguishable.

MARSHALL, J., concurring

437 U.S.

special responsibility for the State. Regardless of which court's view of the Constitution was the correct one, such nonuniformity on Fourth Amendment questions is obviously undesirable; it is as unfair to state prosecutors and judges who must make difficult determinations regarding what evidence is subject to exclusion as it is to state criminal defendants.

Prior to Stone v. Powell, there would have been no need to grant certiorari in a case such as this, since the federal habeas remedy would have been available to the defendant. Indeed, prior to Stone petitioner here probably would not even have had to utilize federal habeas, since the Arizona courts were at that earlier time more inclined to follow the federal constitutional pronouncements of the Ninth Circuit, as discussed above. But Stone eliminated the habeas remedy with regard to Fourth Amendment violations, thus allowing state-court rulings to diverge from lower federal-court rulings on these issues and placing a correspondingly greater burden on this Court to ensure uniform federal law in the Fourth Amendment area.

At the time of Stone my Brother BRENNAN wrote that "institutional constraints totally preclude any possibility that this Court can adequately oversee whether state courts have properly applied federal law." 428 U. S., at 526 (dissenting opinion); see id., at 534. Because of these constraints, we will often be faced with a Hobson's choice in cases of less than national significance that could formerly have been left to the lower federal courts: either to deny certiorari and thereby let stand divergent state and federal decisions with regard to Fourth Amendment rights; or to grant certiorari and thereby add to our calendar, which many believe is already overcrowded, cases that might better have been resolved elsewhere. In view of this problem and others," I hope that the

The Stone holding has not eased the burden on the lower federal courts as much as the Stone majority might have hoped, since those courts have


Opinion of REHNQUIST, J.

Court will at some point reconsider the wisdom of Stone v. Powell.:

MR. JUSTICE REHNQUIST, concurring in part and dissenting

in part.

Petitioner was indicted for murder, assault, and three counts of narcotics offenses. He was convicted on all charges. On appeal, the Supreme Court of Arizona reversed all but the narcotics convictions. 115 Ariz. 472, 566 P. 2d 273 (1977). In his petition for certiorari, petitioner challenged the introduction of evidence material to his narcotics convictions that was seized during a lengthy warrantless search of his apartment. Petitioner also challenged on voluntariness grounds the introduction of various statements made to the police relating to the murder charge. We granted certiorari, 434 U. S. 902, and the Court today reverses the Supreme Court of Arizona on both issues. While I agree with the Court that the warrantless search was not justifiable on the grounds advanced by the Arizona Supreme Court, I dissent from the Court's holding that Mincey's statements were involuntary and thus inadmissible.

I I join Part I of the Court's opinion. As the Supreme Court of Arizona recognized, the four-day warrantless search of petitioner's apartment did not, on the facts developed at trial, "fit within [any] usual 'exigent circumstances' exception.” 115 Ariz., at 482, 566 P. 2d, at 283. Instead, the State of

had to struggle over what this Court meant by "an opportunity for full and fair litigation of a Fourth Amendment claim," 428 U. S., at 494. See, e. 9., Gates v. Henderson, 568 F. 2d 830 (CA2 1977); United States ex rel. Petillo v. New Jersey, 562 F. 2d 903 (CA3 1977); O'Berry v. Wainwright, 546 F. 2d 1204 (CA5 1977).

8 A bill currently pending in the Congress would have the effect of overruling Stone v. Powell. S. 1314, 95th Cong., 1st Sess. (1977); see 123 Cong. Rec. 11347–11353 (1977).

Opinion of REHNQUIST, J.

437 U.S.

Arizona asks us to adopt a separate “murder scene” exception to the warrant requirement and the Court, for the reasons stated in its opinion, correctly rejects this invitation.

I write separately on this issue only to emphasize that the question of what, if any, evidence was seized under established Fourth Amendment standards is left open for the Arizona courts to resolve on remand. Ante, at 395 n. 9. Much of the evidence introduced by the State at trial was apparently removed from the apartment the same day as the shooting. App. 40. And the State's brief suggests that some evidencefor example, blood on the floor-required immediate examination. Brief for Respondent 70–71. The question of what evidence would have been "lost, destroyed, or removed” if & warrant had been obtained, ante, at 394, otherwise required an immediate search, or was in plain view should be considered on remand by the Arizona courts.

In considering whether exigencies required the search for or seizure of particular evidence, the previous events within the apartment cannot be ignored. I agree with the Court that the police's entry to arrest Mincey, followed by the shooting and the search for victims, did not justify the later four-day search of the apartment. Ante, at 391–392. But the constitutionality of a particular search is a question of reasonableness and depends on "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975). See Terry v. Ohio, 392 U. S. 1, 19 (1968). In Pennsylvania v. Mimms, 434 U. S. 106 (1977), we held that once a motor vehicle had been lawfully detained for a traffic violation, police officers could constitutionally order the driver out of the vehicle. In so holding, we emphasized that the challenged intrusion was "occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis."

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