Commonwealth of Massachusetts v. Painten

• Citation: 389 U.S. 560,88 S.Ct. 660,19 L.Ed.2d 770
• Decision Date: 15 January 1968
• Docket Number: No. 37,37
• Parties: COMMONWEALTH OF MASSACHUSETTS, Petitioner, v. Donald M. PAINTEN
• Court: United States Supreme Court

389 U.S. 560

88 S.Ct. 660

19 L.Ed.2d 770

COMMONWEALTH OF MASSACHUSETTS, Petitioner,

v Donald M. PAINTEN.

No. 37.

Argued Oct. 18, 1967.

Decided Jan. 15, 1968.

Elliot L. Richardson, Boston, Mass., for petitioner.

Louis M. Nordlinger, Boston, Mass., for respondent.

PER CURIAM.

In 1958 respondent was tried and convicted in Middlesex Superior Court, Massachusetts, for armed robbery of a bank and related offenses. He appealed, and in 1961 his conviction was affirmed by the Supreme Judicial Court of Massachusetts, sub nom. Commonwealth v. Binkiewicz, 342 Mass. 740, 175 N.E.2d 473.

Respondent eventually filed a petition for a writ of habeas corpus in the Federal District Court. Testimony was taken by the District Court on December 30, 1965. It ruled that respondent's Fourth Amendment rights had been violated by the entry into his apartment, by his arrest, and by the search and seizure of certain articles in his apartment which were introduced in evidence against him. Accordingly, it set aside his conviction and ordered his release.¹ Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Court of Appeals affirmed.² We granted certiorari because of the importance of the constitutional issues presented.³

At the time of respondent's trial in 1958, Massachusetts did not have an exclusionary rule for evidence obtained by an illegal search or seizure, Commonwealth v. Wilkins, 243 Mass. 356, 138 N.E. 11 (1923); Commonwealth v. Spofford, 343 Mass. 703, 706, 180 N.E.2d 673, 675 (1962), and the parties did not focus upon the issues now before us. The evidentiary hearing in 1965 took place almost eight years after the events.

After oral argument and study of the record, we have reached the conclusion that the record is not sufficiently clear and specific to permit decision of the important constitutional questions involved in this case. The writ is therefore dismissed as improvidently granted. Cf. Smith v. Mississippi, 373 U.S. 238, 83 S.Ct. 1265, 10 L.Ed.2d 321 (1963).

Dismissed.

Mr. Justice FORTAS, concurring.

The dissent written by my Brother WHITE, with whom my Brothers HARLAN, and STEWART join, impels me to add this note. I agree with the Court's action in dismissing the writ of certiorari for having been improvidently granted because the record is not adequate for disposition of the case in terms of its constitutional problems. Mr. Justice WHITE'S opinion is not in disagreement on this point. He would remand the case for a purpose which seems to me to be unreal: that is, to hold an inquiry, almost 10 years after the event, as to 'whether Officer Rufo could have believed that the bag had been abandoned and whether the bag was searched before or after guns were observed.' This inquiry—at this late date—is as elusive as an attempt to capture last night's moonbeam.

As some of my colleagues have often said, we do not sit as a court of criminal appeals to review judgments of state courts. The question in the instant case comes here as a result of federal habeas corpus proceedings. We should consider it if, and only if, we should and can dispose of it on its record in terms of constitutional principle. The Court's disposition of this case is based upon the sound premise that we should not use our certiorari jurisdiction to express our views on a point in a case which we cannot dispose of because of inadequacies of the record which cannot realistically be remedied.

I should not ordinarily feel it necessary to file a comment in this vein. In the present situation, I am troubled lest my Brother WHITE'S dissent should give the impression that only he and my Brothers HARLAN and STEWART believe that the court below erred in relying on its inferences as to the undisclosed intent of the officers. I agree with the Court's disposition of this case, not because I disagree with the position stated in the dissent on this issue, but because oral argument and detailed consideration of the case after certiorari was granted disclosed the infirmity of the record which precludes the orderly disposition of the case by this Court.

Mr. Justice WHITE, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.

The Court granted certiorari¹ because the rule of law applied by the Court of Appeals to the facts found by both it² and the District Court³ raised troubling and difficult questions about the restrictions imposed by the Fourth Amendment on evidence that may be admitted at a criminal trial. The Court now says, quite rightly, that the record in this case is stale and the facts unclear. We have, however, a set of facts found by a United States District Court and approved by a Court of Appeals. Determining what legal consequences should follow from those facts is difficult, but is the task normally entrusted to this Court. I would accept the facts found by two federal courts and decide the questions of law presented to us.

The relevant facts foundbelow are as follows. Two police officers, having a suspicion that respondent had committed felonies but not having probable cause to believe that he had committed them, went to the door of respondent's apartment. Their motive, the courts below found, was to arrest and search, whether or not their investigation provided the probable cause that would make an arrest and search constitutional. This plan was not communicated to respondent, who when he came to the door was led to believe the officers wished only to speak to him. Told no more than that the officers wished to ask questions, respondent asked them to wait a minute, closed the door, tossed a paper bag onto a fire escape, returned, and let the officers enter. The officers did nothing to respondent but ask questions;⁴ while doing that another officer, posted below, who had seen the bag drop, walked through the apartment and out onto the fire escape, where he found guns and bullets in the bag. The officers arrested respondent, and undertook a complete search of the apartment incident to the arrest.

On these facts the District Court concluded that '(s)ince the officers had no probable cause to arrest when they entered the apartment they cannot retroactively validate the entry or arrest by reliance on what they discovered as a result of the illegal entry.' 252 F.Supp., at 857. The Court of Appeals agreed, saying that the officers 'set out to arrest and search (respondent) in the hope that evidence would develop,' and that 'since their actions were improper, the police were not entitled to the fruits.' 368 F.2d, at 144. The question is thus whether the fact that the officers were not truthful in telling respondent their intentions required that the evidence found by the policemen after they entered the apartment be barred from admission at respondent's trial as a 'fruit' of unlawful police conduct.

The position of the courts below must rest on a view that a policeman's intention to offend the Constitution if he can achieve his goal in no other way contaminates all of his later behavior. In the case before us the syllogism must be that although the policeman's words requested entry for the purpose of asking respondent questions, and the policeman—on being allowed to enter did nothing to respondent but ask questions, the 'fruits' of the policeman's otherwise lawful request to enter and question—the bag tossed out of the window and into a place where it could be seen from the street—should not be usable by the State. This is because the policeman was willing, had his lawful conduct not developed probable cause justifying respondent's arrest, to search respondent's apartment unlawfully in the hope of finding evidence of a crime.

That such a rule...