United States v. Payner
Encyclopedia
United States v. Payner, (1980), is a decision of the United States Supreme Court reversing a district's court's suppression of evidence in the criminal prosecution of an Ohio businessman charged with tax evasion
. The case concerned both issues of criminal procedure
and the application of the exclusionary rule
derived from the Fourth Amendment
. By a 6–3 margin the Court both reaffirmed its earlier rulings holding that only the party whose Fourth Amendment protections may have been violated has standing
to challenge the evidence seized in the search, and barred lower courts from exercising their supervisory power to exclude such evidence at the trial of third parties.
The case had been brought the fruit of Operation Trade Winds, a lengthy Internal Revenue Service
(IRS) investigation into the use of offshore accounts
in tax haven
s by American citizens attempting to evade tax liability and hide assets, some of which were believed to have been derived from criminal activities. At one point, a private investigator
working with a Florida IRS agent had taken the executive's briefcase for the IRS to open and duplicate the documents within, then returned the briefcase. (This aspect was described by the district judge as the "briefcase caper", a sobriquet which has subsequently become attached to the case as a whole). Subpoena
s based on the information in those documents yielded the documents used in a prosecution later of Ohio businessman Jack Payner.
Lewis Powell wrote for the majority
that prior case law gave Payner no reasonable expectation of privacy in the documents used to build the case against him. While the Court, too, was outraged by the IRS agent's disregard for the law, the judicial branch's supervisory power was meant to be used only against its own excesses, and Congress was better equipped to remedy such breaches of the Constitution since there were no ways to limit how a court might apply such a rule. Thurgood Marshall
's dissent
noted not only the extent to which the IRS had gone in planning the briefcase caper but that its agents had purposely been instructed to take advantage of the loophole created by the court's standing rule. Later commentators read the case as expanding the standing rule, and indicating a shift to focusing on the deterrence effect of applying the exclusionary rule instead of the courts' supervisory role.
tax haven
s by American citizens, some of whom had links to organized crime
. Agents in the Jacksonville
office, where the investigation was headquartered, began to focus on Castle Bank & Trust
, in Nassau, Bahamas
, when they learned a suspected drug trafficker had opened an account there. Richard Jaffe, one of the special agents involved in Trade Winds, asked Norman Casper, a private investigator
he sometimes used as a source, to look into Castle.
Casper made the acquaintance of Michael Wolstencroft, one of Castle's vice presidents. He introduced Wolstencroft to Sybol Kennedy, a former employee of his who also did private investigative work. In 1973 Wolstencroft came to Miami for a few days, and Casper came up with a plan to get information on who Castle's depositors were. Jaffe approved the basic outline.
Upon Wolstencroft's arrival in Miami, he went to Kennedy's apartment and took her out for a dinner date. While they were out, Casper entered the apartment with a key Kennedy had given him and took Wolstencroft's briefcase to Jaffe. A locksmith created a duplicate key to the briefcase. Once it was opened Jaffe and other IRS personnel microfilmed 400 of the documents within. They were replaced and returned to Kennedy's apartment before she and Wolstencroft returned from dinner.
The documents revealed extensive cooperation between Castle and the Bank of Perrine
in Florida. Later, at Casper's instruction, Kennedy stole a rolodex
from Castle's office in Nassau during a visit to Wolstencroft. Among those with contact information in it was Cleveland-area businessman Jack Payner. The IRS let him know that it was investigating his tax returns for four years. Subpoena
s were issued to the Bank of Perrine. In response to one the bank produced a 1972 letter from Payner pledging the $100,000 in his Castle account as collateral
for a loan. Since Payner had said he did not have any offshore accounts on his tax return
for that year, the case was referred to the United States Attorney for the Northern District of Ohio. Based on that evidence, Payner was indicted
in 1976 on a charge of filing a false tax return, a felony
.
, developed from evidence obtained in violation of the Fourth Amendment
's prohibition of unreasonable search and seizure. Federal prosecutors argued in response that the evidence was developed from sources other than the documents in Wolstencroft's briefcase, and that even if those had been the only source Payner had no standing
to invoke the exclusionary rule
because his rights had not been violated when the documents were copied.Wolstencroft was also indicted for aiding and abetting
Payner, but was never prosecuted because he never returned to the United States (Payner, 447 U.S. at 746 n.13 (Marshall, J., dissenting)). With the agreement of both parties, Judge John Michael Manos
conducted the proceedings as a bench trial
, with himself as sole trier of fact
, considering both the government's case on the merits and the defendant's motion to suppress concurrently, in order to determine whether or not any of the government's evidence was obtained independently of the contents of Wolstencroft's briefcase or the rolodex.
After both parties had presented their cases, Manos granted the motion to suppress. Prosecutors appealed to the United States Court of Appeals for the Sixth Circuit
. A three-judge panel headed by the circuit's chief judge, Harry Phillips
, dismissed the appeal for lack of jurisdiction
. Phillips wrote that the federal statute limiting the government's right of appeal in criminal prosecutions was explicit that rulings suppressing evidence could only be appealed before trial, not afterwards. He criticized Manos's handling of the case, saying that the motion to suppress should have been heard first in any event, in order to preserve the government's right of appeal.
With the case before him again, Manos amended his rulings accordingly. He first found Payner guilty, then granted the motion to suppress and, on his own initiative, set aside
the verdict. In a memorandum opinion on the suppression, he set forth his reasoning.
"This Court finds that the United States, through its agents, Richard Jaffe, and others, knowingly and willfully participated in the unlawful seizure of Michael Wolstencroft's briefcase", Manos declared. He did not accept the government claim that Casper had acted on his own, since Jaffe had been not only involved and aware but had gone so far as to clear the plan with his own superior. The government had also not proved its case that the evidence against Payner was developed independently of the theft of the briefcase. At trial he had not found Jaffe a trustworthy or credible witness. The IRS agent had, in fact, told a congressional committee that the evidence from the briefcase was unavailable from any other source, and the timing of the subpoenas reinforced that claim.
Manos then turned to the legal issues surrounding the exclusionary rule
. He cited the three circumstances under which the Supreme Court had said it was to be applied: when defendants' rights had been violated, when the court found the government's conduct outrageous, and as part of the courts' supervisory power over the operations of government, under which "to allow admission of the evidence calls into question the integrity of the entire federal judicial system".
The first instance did not apply. In Alderman v. United States, the first Fourth Amendment case decided by the Supreme Court after it shifted the root of the Amendment's protection from property to privacy in Katz v. United States
, the Court had broadened an earlier holding, Goldstein v. United States, into a principle that the exclusionary rule could not be invoked vicariously. It had reaffirmed that holding recently in Rakas v. Illinois
. And in United States v. Miller, it had held that there was no reasonable expectation of privacy
in banking records.
All the same Manos believed just as strongly that Payner's due process
rights had been violated by the unlawful copying of the record's in Wolstencroft's briefcase. Drawing on a line of cases starting with Rochin v. California
, where the Court had been so outraged by police officers' forced use of a stomach pump to retrieve two swallowed morphine
capsules that they overturned the conviction, and clarified in United States v. Janis
when the Court declined to exclude evidence from a civil proceeding that had been seized in a good-faith belief it was permissible, he held that the jurisprudence on the issue:
For the same reasons, the supervisory power of the courts first outlined in McNabb v. United States required suppression of the evidence.
The government appealed the suppression order again. After hearing arguments late in 1978, another Phillips-chaired panel affirmed Manos early the following year. In a short per curiam opinion, the panel concurred with the district court's findings of fact. It found the suppression a permissible use of the court's supervisory power and declined to consider the constitutional questions.
A petition for rehearing, either by another panel or en banc
, was denied in March. The government then petitioned the Supreme Court for certiorari
, which was granted later in the year. Oral argument
s were heard in February 1980.
of six justices had agreed with the government and reversed Manos and the appeals court, holding that the evidence was admissible. Lewis F. Powell, Jr., reaffirmed earlier holdings that only the aggrieved party could challenge the constitutionality of evidence, and that even the deliberate, sustained nature of the violation in the instant case did not change that. He also outlined reasons why the Court did not think it wise to extend the exclusionary rule
in that direction, since its supervisory power was properly limited to actions of the judicial branch, and Congressional hearings had already exposed the excesses of Operation Trade Winds and led the IRS to shut it down. Chief Justice
Warren Burger added a short concurring opinion
emphasizing the latter point but also distancing the Court from the conduct of the agents.
Thurgood Marshall
wrote for the dissenting
justices. He felt that the deliberate and calculated plans of Jaffe and Casper, as well as the former's admission to Congress that he had been made aware of the standing provision during training and encouraged to take advantage of it, required that the Court act. The Court's supervisory power was about protecting the integrity of the judicial process, he reminded the majority.
A later petition for rehearing was denied. The Sixth Circuit remanded the case to the district court for further proceedings in the fall of 1980.
that Bahamian banking secrecy
laws gave him an expectation of privacy
. None of the stolen documents would have been covered by it, and even if they were the cited section of law was outdated, the current statute was "hardly a blanket guarantee of privacy" since it had limited scope, many exceptions and the brief had cited no authority on how to construe it.
He turned to the legal issues. "We certainly can understand the District Court's commendable desire to deter deliberate intrusions into the privacy of persons who are unlikely to become defendants in a criminal prosecution," he wrote. "No court should condone the unconstitutional and possibly criminal behavior of those who planned and executed this 'briefcase caper.'"
But the Court's many precedents in that area "do not command the exclusion of evidence in every case of illegality. Instead, they must be weighed against the considerable harm that would flow from indiscriminate application of an exclusionary rule." Thus its use was properly restricted to instances where it would most be useful in remedying the violation, wrote Powell. "Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truthfinding functions of judge and jury."
Similarly, Powell wrote, the supervisory power should be carefully used. The Court had said as such in Elkins v. United States nearly two decades before, and demonstrated that restraint most recently in United States v. Caceres "Were we to accept this use of the supervisory power," he concluded, "we would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing." In a footnote, he also pointed out that five years earlier, in 1975, the House Government Operations Committee had held hearings on Trade Winds and other related IRS investigations which had revealed the briefcase caper and other abusive investigatory practices. In response the investigations had been called off.
He reviewed the facts of the case as Manos had outlined them, believing fuller detail was necessary to appreciate the extent to which the IRS agents had been involved in planning and executing the briefcase caper. He reiterated that they had been fully aware of the standing rule when they planned the investigation. "It is in the context of these findings", he wrote, "that the suppression issue must be considered."
In support of the use of supervisory powers to suppress, he cited Louis Brandeis
's famous dissent in Olmstead v. United States
: "If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." He distinguished the cases where the Court had exercised its powers and suppressed evidenced obtained unconstitutionally as those cases where, like the instant one, the seizure of the evidence had come about through deliberate violation of law. "If the federal court permits such evidence, the intended product of deliberately illegal Government action, to be used to obtain a conviction, it places its imprimatur upon such lawlessness, and thereby taints its own integrity."
Since the purpose of the supervisory power was to allow the courts to protect their own integrity, Marshall continued, he was all the more puzzled by the majority's focus on the Fourth Amendment's standing provisions. "The only way the IRS can benefit from the evidence it chose to obtain illegally is if the evidence is admitted at trial against persons such as Payner; that was the very point of the criminal exercise in the first place", he wrote. "Such a pollution of the federal courts should not be permitted."
He attacked the notion that the courts were improperly intruding on the prerogatives of the executive branch:
Lastly, to respond to charges that this was potentially an indiscriminate application of the exclusionary rule, he quoted from one of Powell's own opinions, in Hampton v. United States
to the effect that at some point a case where the Court would have to take a stand against abusive investigative methods. "That appropriate case has arrived, and the Court should prevent the Government from profiting by use in the federal courts of evidence deliberately obtained by illegal actions taken in bad faith hostility to constitutional rights."
, Byron White
's majority opinion quoted Powell's criticism of the inflexible application of the rule in support of allowing good-faith exceptions. The next year, Thomas would himself cite Powell as to how the supervisory power could not be exercised in conflict with existing statutory or constitutional provisions in Thomas v. Arn, upholding a Sixth Circuit rule that required parties appealing a district court judgement to have filed timely written objections to a magistrate's report.
During those years, two appellate courts would rely on Payner in reaching opposite conclusions about when to allow the use of the supervisory power. A few months after it was handed down, the Seventh Circuit
upheld a district court's suppression of evidence during the prosecution of a Chicago gambling ring in United States v. Cortina. An evidentiary hearing found that FBI agent William Brown had greatly exaggerated much of the information used to prepare an affidavit
used to obtain the search warrant
that had uncovered most of the evidence.
Judge William Joseph Bauer
discussed Payner at length in his opinion. He found that the instant case fell within the scope of the supervisory power as delineated by Powell's opinion, since it was evidence seized from the defendants themselves. The government had argued, however, that none of them had suffered a violation of their privacy expectations and therefore the supervisory power could not be invoked. But Payner "did not hold that defendants must establish a legitimate expectation of privacy to invoke the supervisory powers if it is proven that the challenged evidence was seized from defendants", Bauer wrote, and had explicitly rejected a notion that it was identical with the Fourth Amendment. "We recognize that the supervisory power is a complement to, not a substitute for, the Fourth Amendment."
Bauer felt it was even more important to deter illegal conduct in this case since it "was committed within the sanctity of the court itself". He noted that it was very difficult to uncover falsifcation in search warrant affidavits, and that it had only been the good faith and cooperation of the federal prosecutors that had made it possible to do so in the instant case. In that vein, he also felt that enough damage had been done to the judicial process by that falsification to outweigh any harm that might be done by excluding the evidence. He concluded:
In 1984 District of Columbia Circuit
judge Antonin Scalia
, later elevated to the Supreme Court himself, would also rely on Payner to allow some contested evidence. In United States v. Byers, the appellee sought the exclusion, on several grounds, of evidence from a psychiatric interview used to convict him of murder. Scalia found Powell's point that the balance between the deterrent value and social harm of excluding the evidence does not change whether they are considered against the supervisory power or the exclusionary rule "relevant" in holding the evidence admissible.
article, "courts should be permitted to rely on the supervisory power to exclude evidence seized by grossly improper means". He believed the evidence could have been suppressed even under a more limited exclusionary rule.
Prior to Payner, there had been arguments that the supervisory power should be thought of only as the judicial branch's self-policing ability. But, Carome argued, from the time the Court first invoked it in McNabb, "it has been used to counteract improprieties of the executive branch that do not amount to constitutional violations." Courts have also recognized that Congress can limit its application, and have used it sparingly, limiting the power's potential to upset the balance of powers. It also was not intrusive, checking the actions of the executive branch only insofar as it reached criminal prosecutions.
In Payner, the government's brief had also suggested Federal Rule of Evidence
402 barred the exercise of the supervisory power, since it holds that only statutory or constitutional provisions may be used to justify suppressing evidence. Powell did not even mention it in his majority opinion. Carome speculated that while the Court may not want to expand the supervisory power, it does not want to surrender it either.
He further argued that the supervisory power could, unlike the exclusionary rule, be applied on behalf of defendants whose rights had not been violated personally. "Because the supervisory power is non-constitutional in nature," he wrote, "federal courts may utilize it to create standards that exceed minimum constitutional levels. Hence, the power need not be doctrinally confined to the vindication of personal rights ... [T]he supervisory
power enables federal courts, in proper circumstances, to shift the focus from the rights of particular litigants and place it upon governmental conduct or institutions threatening the courts' integrity."
Carome pointed to cases where this had been done. In Thiel v. Southern Pacific Corp., and Ballard v. United States, the Court had overturned a civil verdict and criminal convictions respectively where certain categories had been unlawfully excluded from the jury pool—without requiring parties to demonstrate they were prejudiced by the exclusions, since they had done enough damage to the judicial system. More recently, a Sixth Circuit case had excluded evidence obtained by a government informant who violated attorney-client privilege
, conduct he called "more outrageous than Payner" from trials of several defendants. Based on those cases, Carome said,
Cortina showed that courts nevertheless felt there was a need for the power, and Carome proposed that the cases where it had initially been exercised called for the creation of a standard. He suggested it be used:
Having standards would allay the Court's concerns, and send clear signals to law enforcement as to what conduct would not be tolerated. He called on the Court to re-evaluate Payner at some point in the future. "The Court's failure to so act would allow such abuses to continue to taint the integrity of [the] courts," he said. "A nation pledged to obey the rule of law cannot ignore such threats to its basic order."
A later commentator, Ohio State law professor Sharon Davies, also found Payner' s narrow approach to the issue troubling. She looked at it through the lens of law and economics
, particularly the work of Robert Cooter
on prices and sanctions
. Both could be applied to undesirable conduct, but the former permits it by requiring a party to personally bear costs that would otherwise be borne by others, whereas the latter is meant to discourage undesirable conduct as strongly as possible by imposing a high price.
Had the Court, she asked, considered violations of the Fourth Amendment an unconscionable wrong to be deterred with sanctions or a sometimes necessary evil that could be minimized with a price? The language various Supreme Court majorities had used in describing the infractions suggested, to her, the former. At the time of Mapp v. Ohio
, when the exclusionary rule was applied to proceedings in state courts, its imposition was defended as much for its role in protecting judicial integrity as well as deterring unconstitutional investigative practices. "[E]vidence collected in violation of Fourth Amendment limits", Davies recounts, "was so imbued with the potential to smear that even judicial robes normally infused with an aura of impartiality and fairness would be tarnished by it."
As the Court shifted over time to deterrence as the sole basis for the exclusionary rule, requiring a balancing test that is essentially a cost-benefit analysis
, Davies argues that more and more exceptions to it have been created that another observer has described as "inclusionary rules." She found Payner to be "[a]n example of government officials engaged in precisely this type of overt cost-benefit analysis ... If, as in Payner, police are truly free to choose whether to abide by or violate the constitutional requirements, the penalty for the decision to inflict the constitutional harm begins to look less and less like a sanction for wrongful conduct." She did not find the scope of the violation surprising either, since "when viewed from the perspective of a self-interested actor, these developments make perfect economic sense, for '[o]nce it pays to fall short of the legal standard, it pays to fall significantly short of it.'"
Tax evasion
Tax evasion is the general term for efforts by individuals, corporations, trusts and other entities to evade taxes by illegal means. Tax evasion usually entails taxpayers deliberately misrepresenting or concealing the true state of their affairs to the tax authorities to reduce their tax liability,...
. The case concerned both issues of criminal procedure
Criminal procedure in the United States
In the United States, there is a distinction between constitutional criminal procedure, which consists of baseline protections that the United States Constitution requires be afforded to those accused of crimes, and statutory criminal procedure, which consists of enacted rules that govern the...
and the application of the exclusionary rule
Exclusionary rule
The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...
derived from the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
. By a 6–3 margin the Court both reaffirmed its earlier rulings holding that only the party whose Fourth Amendment protections may have been violated has standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to challenge the evidence seized in the search, and barred lower courts from exercising their supervisory power to exclude such evidence at the trial of third parties.
The case had been brought the fruit of Operation Trade Winds, a lengthy Internal Revenue Service
Internal Revenue Service
The Internal Revenue Service is the revenue service of the United States federal government. The agency is a bureau of the Department of the Treasury, and is under the immediate direction of the Commissioner of Internal Revenue...
(IRS) investigation into the use of offshore accounts
Offshore bank
An offshore bank is a bank located outside the country of residence of the depositor, typically in a low tax jurisdiction that provides financial and legal advantages. These advantages typically include:...
in tax haven
Tax haven
A tax haven is a state or a country or territory where certain taxes are levied at a low rate or not at all while offering due process, good governance and a low corruption rate....
s by American citizens attempting to evade tax liability and hide assets, some of which were believed to have been derived from criminal activities. At one point, a private investigator
Private investigator
A private investigator , private detective or inquiry agent, is a person who can be hired by individuals or groups to undertake investigatory law services. Private detectives/investigators often work for attorneys in civil cases. Many work for insurance companies to investigate suspicious claims...
working with a Florida IRS agent had taken the executive's briefcase for the IRS to open and duplicate the documents within, then returned the briefcase. (This aspect was described by the district judge as the "briefcase caper", a sobriquet which has subsequently become attached to the case as a whole). Subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
s based on the information in those documents yielded the documents used in a prosecution later of Ohio businessman Jack Payner.
Lewis Powell wrote for the majority
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
that prior case law gave Payner no reasonable expectation of privacy in the documents used to build the case against him. While the Court, too, was outraged by the IRS agent's disregard for the law, the judicial branch's supervisory power was meant to be used only against its own excesses, and Congress was better equipped to remedy such breaches of the Constitution since there were no ways to limit how a court might apply such a rule. Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
's dissent
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
noted not only the extent to which the IRS had gone in planning the briefcase caper but that its agents had purposely been instructed to take advantage of the loophole created by the court's standing rule. Later commentators read the case as expanding the standing rule, and indicating a shift to focusing on the deterrence effect of applying the exclusionary rule instead of the courts' supervisory role.
Initial investigation
In 1965 the IRS initiated "Operation Trade Winds", a broad investigation into the use of offshoreOffshore bank
An offshore bank is a bank located outside the country of residence of the depositor, typically in a low tax jurisdiction that provides financial and legal advantages. These advantages typically include:...
tax haven
Tax haven
A tax haven is a state or a country or territory where certain taxes are levied at a low rate or not at all while offering due process, good governance and a low corruption rate....
s by American citizens, some of whom had links to organized crime
Organized crime
Organized crime or criminal organizations are transnational, national, or local groupings of highly centralized enterprises run by criminals for the purpose of engaging in illegal activity, most commonly for monetary profit. Some criminal organizations, such as terrorist organizations, are...
. Agents in the Jacksonville
Jacksonville, Florida
Jacksonville is the largest city in the U.S. state of Florida in terms of both population and land area, and the largest city by area in the contiguous United States. It is the county seat of Duval County, with which the city government consolidated in 1968...
office, where the investigation was headquartered, began to focus on Castle Bank & Trust
Castle Bank & Trust (Bahamas)
Castle Bank & Trust was a notorious Bahamian bank that was involved in tax evasion, as well as covertly funneling funds for the Central Intelligence Agency...
, in Nassau, Bahamas
Nassau, Bahamas
Nassau is the capital, largest city, and commercial centre of the Commonwealth of the Bahamas. The city has a population of 248,948 , 70 percent of the entire population of The Bahamas...
, when they learned a suspected drug trafficker had opened an account there. Richard Jaffe, one of the special agents involved in Trade Winds, asked Norman Casper, a private investigator
Private investigator
A private investigator , private detective or inquiry agent, is a person who can be hired by individuals or groups to undertake investigatory law services. Private detectives/investigators often work for attorneys in civil cases. Many work for insurance companies to investigate suspicious claims...
he sometimes used as a source, to look into Castle.
Casper made the acquaintance of Michael Wolstencroft, one of Castle's vice presidents. He introduced Wolstencroft to Sybol Kennedy, a former employee of his who also did private investigative work. In 1973 Wolstencroft came to Miami for a few days, and Casper came up with a plan to get information on who Castle's depositors were. Jaffe approved the basic outline.
Upon Wolstencroft's arrival in Miami, he went to Kennedy's apartment and took her out for a dinner date. While they were out, Casper entered the apartment with a key Kennedy had given him and took Wolstencroft's briefcase to Jaffe. A locksmith created a duplicate key to the briefcase. Once it was opened Jaffe and other IRS personnel microfilmed 400 of the documents within. They were replaced and returned to Kennedy's apartment before she and Wolstencroft returned from dinner.
The documents revealed extensive cooperation between Castle and the Bank of Perrine
Perrine, Florida
Perrine, Florida was an unincorporated community in Miami-Dade County about midway between Miami and Homestead. It is located at The community was named after Dr...
in Florida. Later, at Casper's instruction, Kennedy stole a rolodex
Rolodex
A Rolodex is a rotating file device used to store business contact information currently manufactured by Newell Rubbermaid. The Rolodex holds specially shaped index cards; the user writes the contact information for one person or company on each card...
from Castle's office in Nassau during a visit to Wolstencroft. Among those with contact information in it was Cleveland-area businessman Jack Payner. The IRS let him know that it was investigating his tax returns for four years. Subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
s were issued to the Bank of Perrine. In response to one the bank produced a 1972 letter from Payner pledging the $100,000 in his Castle account as collateral
Collateral (finance)
In lending agreements, collateral is a borrower's pledge of specific property to a lender, to secure repayment of a loan.The collateral serves as protection for a lender against a borrower's default - that is, any borrower failing to pay the principal and interest under the terms of a loan obligation...
for a loan. Since Payner had said he did not have any offshore accounts on his tax return
Tax return (United States)
Tax returns in the United States are reports filed with the Internal Revenue Service or with the state or local tax collection agency containing information used to calculate income tax or other taxes...
for that year, the case was referred to the United States Attorney for the Northern District of Ohio. Based on that evidence, Payner was indicted
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
in 1976 on a charge of filing a false tax return, a felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
.
Trial
A year after the indictment, Payner moved to suppress the government's evidence against him as fruit of the poisonous treeFruit of the poisonous tree
Fruit of the poisonous tree is a legal metaphor in the United States used to describe evidence that is obtained illegally. The logic of the terminology is that if the source of the evidence is tainted, then anything gained from it is as well.Such evidence is not generally admissible in court...
, developed from evidence obtained in violation of the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
's prohibition of unreasonable search and seizure. Federal prosecutors argued in response that the evidence was developed from sources other than the documents in Wolstencroft's briefcase, and that even if those had been the only source Payner had no standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to invoke the exclusionary rule
Exclusionary rule
The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...
because his rights had not been violated when the documents were copied.Wolstencroft was also indicted for aiding and abetting
Aiding and abetting
Criminal=Aiding and abetting is an additional provision in United States criminal law, for situations where it cannot be shown the party personally carried out the criminal offense, but where another person may have carried out the illegal act as an agent of the charged, working together with or...
Payner, but was never prosecuted because he never returned to the United States (Payner, 447 U.S. at 746 n.13 (Marshall, J., dissenting)). With the agreement of both parties, Judge John Michael Manos
John Michael Manos
John Michael Manos was a United States federal judge for 30 years.-Early life and education:Manos was born to Maria and Michael E. Manos on December 8, 1922, in Cleveland, Ohio. He grew up in the Tremont neighborhood. Like many Depression-era Cleveland kids, he worked odd jobs at the West Side...
conducted the proceedings as a bench trial
Bench trial
A bench trial is a trial held before a judge sitting without a jury. The term is chiefly used in common law jurisdictions to describe exceptions from jury trial, as most other legal systems do not use juries to any great extent....
, with himself as sole trier of fact
Trier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...
, considering both the government's case on the merits and the defendant's motion to suppress concurrently, in order to determine whether or not any of the government's evidence was obtained independently of the contents of Wolstencroft's briefcase or the rolodex.
After both parties had presented their cases, Manos granted the motion to suppress. Prosecutors appealed to the United States Court of Appeals for the Sixth Circuit
United States Court of Appeals for the Sixth Circuit
The United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Kentucky* Western District of Kentucky...
. A three-judge panel headed by the circuit's chief judge, Harry Phillips
Harry Phillips (judge)
Harry Phillips was a United States federal judge.Born in Watertown, Tennessee, Phillips received an A.B. from Cumberland University in 1932 and an LL.B. from Cumberland University School of Law in 1933. He was in private practice in Watertown, Tennessee from 1935 to 1937. He was a Member,...
, dismissed the appeal for lack of jurisdiction
Appellate jurisdiction
Appellate jurisdiction is the power of the Supreme Court to review decisions and change outcomes of decisions of lower courts. Most appellate jurisdiction is legislatively created, and may consist of appeals by leave of the appellate court or by right...
. Phillips wrote that the federal statute limiting the government's right of appeal in criminal prosecutions was explicit that rulings suppressing evidence could only be appealed before trial, not afterwards. He criticized Manos's handling of the case, saying that the motion to suppress should have been heard first in any event, in order to preserve the government's right of appeal.
With the case before him again, Manos amended his rulings accordingly. He first found Payner guilty, then granted the motion to suppress and, on his own initiative, set aside
Motion to set aside judgment
In law, a motion to set aside judgment is an application to overturn or set aside a court's judgment, verdict or other final ruling in a case. Such a motion is proposed by a party who is dissatisfied with the end result of a case. Motions may be made at any time after entry of judgment, and in some...
the verdict. In a memorandum opinion on the suppression, he set forth his reasoning.
"This Court finds that the United States, through its agents, Richard Jaffe, and others, knowingly and willfully participated in the unlawful seizure of Michael Wolstencroft's briefcase", Manos declared. He did not accept the government claim that Casper had acted on his own, since Jaffe had been not only involved and aware but had gone so far as to clear the plan with his own superior. The government had also not proved its case that the evidence against Payner was developed independently of the theft of the briefcase. At trial he had not found Jaffe a trustworthy or credible witness. The IRS agent had, in fact, told a congressional committee that the evidence from the briefcase was unavailable from any other source, and the timing of the subpoenas reinforced that claim.
Manos then turned to the legal issues surrounding the exclusionary rule
Exclusionary rule
The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...
. He cited the three circumstances under which the Supreme Court had said it was to be applied: when defendants' rights had been violated, when the court found the government's conduct outrageous, and as part of the courts' supervisory power over the operations of government, under which "to allow admission of the evidence calls into question the integrity of the entire federal judicial system".
The first instance did not apply. In Alderman v. United States, the first Fourth Amendment case decided by the Supreme Court after it shifted the root of the Amendment's protection from property to privacy in Katz v. United States
Katz v. United States
Katz v. United States, , is a United States Supreme Court case discussing the nature of the "right to privacy" and the legal definition of a "search." The Court’s ruling adjusted previous interpretations of the unreasonable search and seizure clause of the Fourth Amendment to count immaterial...
, the Court had broadened an earlier holding, Goldstein v. United States, into a principle that the exclusionary rule could not be invoked vicariously. It had reaffirmed that holding recently in Rakas v. Illinois
Rakas v. Illinois
Rakas v. Illinois, , was a decision by the United States Supreme Court, in which The Court held that the "legitimately on the property" requirement of Jones v. United States, for challenging the legality of a police search, was too broad...
. And in United States v. Miller, it had held that there was no reasonable expectation of privacy
Expectation of privacy
In United States constitutional law the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution...
in banking records.
All the same Manos believed just as strongly that Payner's due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
rights had been violated by the unlawful copying of the record's in Wolstencroft's briefcase. Drawing on a line of cases starting with Rochin v. California
Rochin v. California
Rochin v. California, 342 U.S. 165 , was a case decided by the Supreme Court of the United States that added behavior that "shocks the conscience" into tests of what violates due process...
, where the Court had been so outraged by police officers' forced use of a stomach pump to retrieve two swallowed morphine
Morphine
Morphine is a potent opiate analgesic medication and is considered to be the prototypical opioid. It was first isolated in 1804 by Friedrich Sertürner, first distributed by same in 1817, and first commercially sold by Merck in 1827, which at the time was a single small chemists' shop. It was more...
capsules that they overturned the conviction, and clarified in United States v. Janis
United States v. Janis
United States v. Janis, was a Supreme Court Case that found Max Janis and Morris Levine guilty of illegal bookmaking activities in Los Angeles in a 5-3 ruling. The two were arrested for the crime in November 1968. Appealing on the grounds of unconstitutionally seized evidence, Janis and Levine...
when the Court declined to exclude evidence from a civil proceeding that had been seized in a good-faith belief it was permissible, he held that the jurisprudence on the issue:
For the same reasons, the supervisory power of the courts first outlined in McNabb v. United States required suppression of the evidence.
The government appealed the suppression order again. After hearing arguments late in 1978, another Phillips-chaired panel affirmed Manos early the following year. In a short per curiam opinion, the panel concurred with the district court's findings of fact. It found the suppression a permissible use of the court's supervisory power and declined to consider the constitutional questions.
A petition for rehearing, either by another panel or en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
, was denied in March. The government then petitioned the Supreme Court for certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
, which was granted later in the year. Oral argument
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
s were heard in February 1980.
Decision
The Court announced its ruling in June 1980, near the end of term. A majorityMajority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
of six justices had agreed with the government and reversed Manos and the appeals court, holding that the evidence was admissible. Lewis F. Powell, Jr., reaffirmed earlier holdings that only the aggrieved party could challenge the constitutionality of evidence, and that even the deliberate, sustained nature of the violation in the instant case did not change that. He also outlined reasons why the Court did not think it wise to extend the exclusionary rule
Exclusionary rule
The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...
in that direction, since its supervisory power was properly limited to actions of the judicial branch, and Congressional hearings had already exposed the excesses of Operation Trade Winds and led the IRS to shut it down. Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Warren Burger added a short concurring opinion
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
emphasizing the latter point but also distancing the Court from the conduct of the agents.
Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
wrote for the dissenting
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
justices. He felt that the deliberate and calculated plans of Jaffe and Casper, as well as the former's admission to Congress that he had been made aware of the standing provision during training and encouraged to take advantage of it, required that the Court act. The Court's supervisory power was about protecting the integrity of the judicial process, he reminded the majority.
A later petition for rehearing was denied. The Sixth Circuit remanded the case to the district court for further proceedings in the fall of 1980.
Majority opinion
After reviewing the facts of the case, Powell found no reason to doubt or add to Manos's conclusion that Payner lacked Fourth Amendment standing. In a footnote, he dismissed an argument in Payner's briefBrief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....
that Bahamian banking secrecy
Bank secrecy
Bank secrecy is a legal principle in some jurisdictions under which banks are not allowed to provide to authorities personal and account information about their customers unless certain conditions apply...
laws gave him an expectation of privacy
Expectation of privacy
In United States constitutional law the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution...
. None of the stolen documents would have been covered by it, and even if they were the cited section of law was outdated, the current statute was "hardly a blanket guarantee of privacy" since it had limited scope, many exceptions and the brief had cited no authority on how to construe it.
He turned to the legal issues. "We certainly can understand the District Court's commendable desire to deter deliberate intrusions into the privacy of persons who are unlikely to become defendants in a criminal prosecution," he wrote. "No court should condone the unconstitutional and possibly criminal behavior of those who planned and executed this 'briefcase caper.'"
But the Court's many precedents in that area "do not command the exclusion of evidence in every case of illegality. Instead, they must be weighed against the considerable harm that would flow from indiscriminate application of an exclusionary rule." Thus its use was properly restricted to instances where it would most be useful in remedying the violation, wrote Powell. "Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truthfinding functions of judge and jury."
Similarly, Powell wrote, the supervisory power should be carefully used. The Court had said as such in Elkins v. United States nearly two decades before, and demonstrated that restraint most recently in United States v. Caceres "Were we to accept this use of the supervisory power," he concluded, "we would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing." In a footnote, he also pointed out that five years earlier, in 1975, the House Government Operations Committee had held hearings on Trade Winds and other related IRS investigations which had revealed the briefcase caper and other abusive investigatory practices. In response the investigations had been called off.
Concurrence
"Orderly government under our system of separate powers calls for internal self-restraint and discipline in each [b]ranch," Burger wrote. "[T]his Court has no general supervisory authority over operations of the [e]xecutive [b]ranch, as it has with respect to the federal courts." He emphasized his agreement with the majority, but noted that its opinion "should not be read as condoning the conduct of the IRS 'private investigators' disclosed by this record, or as approval of their evidence-gathering methods."Dissent
The majority's holding, Marshall wrote, "effectively turns the standing rules created by this Court for assertions of Fourth Amendment violations into a sword to be used by the Government to permit it deliberately to invade one person's Fourth Amendment rights in order to obtain evidence against another person." Courts should, he said, be allowed to prevent that.He reviewed the facts of the case as Manos had outlined them, believing fuller detail was necessary to appreciate the extent to which the IRS agents had been involved in planning and executing the briefcase caper. He reiterated that they had been fully aware of the standing rule when they planned the investigation. "It is in the context of these findings", he wrote, "that the suppression issue must be considered."
In support of the use of supervisory powers to suppress, he cited Louis Brandeis
Louis Brandeis
Louis Dembitz Brandeis ; November 13, 1856 – October 5, 1941) was an Associate Justice on the Supreme Court of the United States from 1916 to 1939.He was born in Louisville, Kentucky, to Jewish immigrant parents who raised him in a secular mode...
's famous dissent in Olmstead v. United States
Olmstead v. United States
Olmstead v. United States, , was a decision of the Supreme Court of the United States, in which the Court reviewed whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the...
: "If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." He distinguished the cases where the Court had exercised its powers and suppressed evidenced obtained unconstitutionally as those cases where, like the instant one, the seizure of the evidence had come about through deliberate violation of law. "If the federal court permits such evidence, the intended product of deliberately illegal Government action, to be used to obtain a conviction, it places its imprimatur upon such lawlessness, and thereby taints its own integrity."
Since the purpose of the supervisory power was to allow the courts to protect their own integrity, Marshall continued, he was all the more puzzled by the majority's focus on the Fourth Amendment's standing provisions. "The only way the IRS can benefit from the evidence it chose to obtain illegally is if the evidence is admitted at trial against persons such as Payner; that was the very point of the criminal exercise in the first place", he wrote. "Such a pollution of the federal courts should not be permitted."
He attacked the notion that the courts were improperly intruding on the prerogatives of the executive branch:
Lastly, to respond to charges that this was potentially an indiscriminate application of the exclusionary rule, he quoted from one of Powell's own opinions, in Hampton v. United States
Hampton v. United States
Hampton v. United States, , is a United States Supreme Court decision on the subject of entrapment. By a 5-3 margin, the Court upheld the conviction of a Missouri man for selling heroin even though all the drug sold was supplied to him, he claimed, by a Drug Enforcement Agency informant who had in...
to the effect that at some point a case where the Court would have to take a stand against abusive investigative methods. "That appropriate case has arrived, and the Court should prevent the Government from profiting by use in the federal courts of evidence deliberately obtained by illegal actions taken in bad faith hostility to constitutional rights."
Subsequent jurisprudence
No later holdings modified Payner, but it has been among the cases that have guided the Court in other tests of the supervisory power and the exclusionary rule. Several years later, when the Court created the good-faith exception to the exclusionary rule in United States v. LeonUnited States v. Leon
United States v. Leon, 468 U.S. 897 , was a search and seizure case in which the Supreme Court of the United States created the "good faith" exception to the exclusionary rule.-Background:...
, Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
's majority opinion quoted Powell's criticism of the inflexible application of the rule in support of allowing good-faith exceptions. The next year, Thomas would himself cite Powell as to how the supervisory power could not be exercised in conflict with existing statutory or constitutional provisions in Thomas v. Arn, upholding a Sixth Circuit rule that required parties appealing a district court judgement to have filed timely written objections to a magistrate's report.
During those years, two appellate courts would rely on Payner in reaching opposite conclusions about when to allow the use of the supervisory power. A few months after it was handed down, the Seventh Circuit
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
upheld a district court's suppression of evidence during the prosecution of a Chicago gambling ring in United States v. Cortina. An evidentiary hearing found that FBI agent William Brown had greatly exaggerated much of the information used to prepare an affidavit
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
used to obtain the search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
that had uncovered most of the evidence.
Judge William Joseph Bauer
William Joseph Bauer
William J. Bauer is a Judge on the United States Court of Appeals for the Seventh Circuit in Chicago.Judge Bauer was born in Chicago, Illinois before moving with his family to Elmhurst. After serving in the U.S. Army , he received a Bachelor of Arts degree from Elmhurst College , and a J.D...
discussed Payner at length in his opinion. He found that the instant case fell within the scope of the supervisory power as delineated by Powell's opinion, since it was evidence seized from the defendants themselves. The government had argued, however, that none of them had suffered a violation of their privacy expectations and therefore the supervisory power could not be invoked. But Payner "did not hold that defendants must establish a legitimate expectation of privacy to invoke the supervisory powers if it is proven that the challenged evidence was seized from defendants", Bauer wrote, and had explicitly rejected a notion that it was identical with the Fourth Amendment. "We recognize that the supervisory power is a complement to, not a substitute for, the Fourth Amendment."
Bauer felt it was even more important to deter illegal conduct in this case since it "was committed within the sanctity of the court itself". He noted that it was very difficult to uncover falsifcation in search warrant affidavits, and that it had only been the good faith and cooperation of the federal prosecutors that had made it possible to do so in the instant case. In that vein, he also felt that enough damage had been done to the judicial process by that falsification to outweigh any harm that might be done by excluding the evidence. He concluded:
In 1984 District of Columbia Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
judge Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, later elevated to the Supreme Court himself, would also rely on Payner to allow some contested evidence. In United States v. Byers, the appellee sought the exclusion, on several grounds, of evidence from a psychiatric interview used to convict him of murder. Scalia found Powell's point that the balance between the deterrent value and social harm of excluding the evidence does not change whether they are considered against the supervisory power or the exclusionary rule "relevant" in holding the evidence admissible.
Analysis and commentary
Kevin Michael Carome has argued that Payner gave insufficient consideration to judicial integrity in allowing the tainted evidence. "Even where the defendants' rights are not violated," he wrote in a Boston College Law ReviewBoston College Law Review
The Boston College Law Review is a journal of legal scholarship and student organization at Boston College Law School. It has been continuously published since 1959. Up until 1977, it was known as the Boston College Industrial & Commercial Law Review...
article, "courts should be permitted to rely on the supervisory power to exclude evidence seized by grossly improper means". He believed the evidence could have been suppressed even under a more limited exclusionary rule.
Prior to Payner, there had been arguments that the supervisory power should be thought of only as the judicial branch's self-policing ability. But, Carome argued, from the time the Court first invoked it in McNabb, "it has been used to counteract improprieties of the executive branch that do not amount to constitutional violations." Courts have also recognized that Congress can limit its application, and have used it sparingly, limiting the power's potential to upset the balance of powers. It also was not intrusive, checking the actions of the executive branch only insofar as it reached criminal prosecutions.
In Payner, the government's brief had also suggested Federal Rule of Evidence
Federal Rules of Evidence
The is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments....
402 barred the exercise of the supervisory power, since it holds that only statutory or constitutional provisions may be used to justify suppressing evidence. Powell did not even mention it in his majority opinion. Carome speculated that while the Court may not want to expand the supervisory power, it does not want to surrender it either.
He further argued that the supervisory power could, unlike the exclusionary rule, be applied on behalf of defendants whose rights had not been violated personally. "Because the supervisory power is non-constitutional in nature," he wrote, "federal courts may utilize it to create standards that exceed minimum constitutional levels. Hence, the power need not be doctrinally confined to the vindication of personal rights ... [T]he supervisory
power enables federal courts, in proper circumstances, to shift the focus from the rights of particular litigants and place it upon governmental conduct or institutions threatening the courts' integrity."
Carome pointed to cases where this had been done. In Thiel v. Southern Pacific Corp., and Ballard v. United States, the Court had overturned a civil verdict and criminal convictions respectively where certain categories had been unlawfully excluded from the jury pool—without requiring parties to demonstrate they were prejudiced by the exclusions, since they had done enough damage to the judicial system. More recently, a Sixth Circuit case had excluded evidence obtained by a government informant who violated attorney-client privilege
Attorney-client privilege
Attorney–client privilege is a legal concept that protects certain communications between a client and his or her attorney and keeps those communications confidential....
, conduct he called "more outrageous than Payner" from trials of several defendants. Based on those cases, Carome said,
Cortina showed that courts nevertheless felt there was a need for the power, and Carome proposed that the cases where it had initially been exercised called for the creation of a standard. He suggested it be used:
Having standards would allay the Court's concerns, and send clear signals to law enforcement as to what conduct would not be tolerated. He called on the Court to re-evaluate Payner at some point in the future. "The Court's failure to so act would allow such abuses to continue to taint the integrity of [the] courts," he said. "A nation pledged to obey the rule of law cannot ignore such threats to its basic order."
A later commentator, Ohio State law professor Sharon Davies, also found Payner
Law and economics
The economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...
, particularly the work of Robert Cooter
Robert Cooter
Robert D. Cooter, a pioneer in the field of law and economics, began teaching in the Department of Economics at UC Berkeley in 1975 and joined the Boalt Hall faculty in 1980. He has been a visiting member of the Institute for Advanced Study in Princeton and a recipient of various awards and...
on prices and sanctions
Sanctions (law)
Sanctions are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations. Criminal sanctions can take the form of serious punishment, such as corporal or capital punishment, incarceration, or severe fines...
. Both could be applied to undesirable conduct, but the former permits it by requiring a party to personally bear costs that would otherwise be borne by others, whereas the latter is meant to discourage undesirable conduct as strongly as possible by imposing a high price.
Had the Court, she asked, considered violations of the Fourth Amendment an unconscionable wrong to be deterred with sanctions or a sometimes necessary evil that could be minimized with a price? The language various Supreme Court majorities had used in describing the infractions suggested, to her, the former. At the time of Mapp v. Ohio
Mapp v. Ohio
Mapp v. Ohio, , was a landmark case in criminal procedure, in which the United States Supreme Court decided that evidence obtained in violation of the Fourth Amendment, which protects against "unreasonable searches and seizures," may not be used in criminal prosecutions in state courts, as well as...
, when the exclusionary rule was applied to proceedings in state courts, its imposition was defended as much for its role in protecting judicial integrity as well as deterring unconstitutional investigative practices. "[E]vidence collected in violation of Fourth Amendment limits", Davies recounts, "was so imbued with the potential to smear that even judicial robes normally infused with an aura of impartiality and fairness would be tarnished by it."
As the Court shifted over time to deterrence as the sole basis for the exclusionary rule, requiring a balancing test that is essentially a cost-benefit analysis
Cost-benefit analysis
Cost–benefit analysis , sometimes called benefit–cost analysis , is a systematic process for calculating and comparing benefits and costs of a project for two purposes: to determine if it is a sound investment , to see how it compares with alternate projects...
, Davies argues that more and more exceptions to it have been created that another observer has described as "inclusionary rules." She found Payner to be "[a]n example of government officials engaged in precisely this type of overt cost-benefit analysis ... If, as in Payner, police are truly free to choose whether to abide by or violate the constitutional requirements, the penalty for the decision to inflict the constitutional harm begins to look less and less like a sanction for wrongful conduct." She did not find the scope of the violation surprising either, since "when viewed from the perspective of a self-interested actor, these developments make perfect economic sense, for '[o]nce it pays to fall short of the legal standard, it pays to fall significantly short of it.'"