Massachusetts v. Painten Brief Amici Curiae

    I n  the

GImtrt nf %  InttTfr States
October T erm, 1967 

No. 37

Commonwealth of Massachusetts,

— v .—

Petitioner,

D onald M. P ainten,
Respondent.

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION 
AND THE CIVIL LIBERTIES UNION OF 

MASSACHUSETTS AS AMICI CURIAE

A nthony G. A msterdam 
3400 Cliestnut Street 
Philadelphia, Pa. 19104

Melvin L. W ulf
156 Fifth Avenue
New York, New York 10010

Attorneys for the American 
Civil Liberties Union and 
the Civil Liberties Union 
of Massachusetts

George J ohnson

3400 Chestnut Street 
Philadelphia, Pa. 19104 

Of Counsel



I N D E X

PAGE

Interest of the Amici ........................................................ 1

Argument .............................................................................  2

Conclusion...........................................................................  16

A uthority Cited

Fourth Amendment of the United States Constitu­
tion ............................................................................... passim



Ik the

gutprm? (Hour! nf %  llnxUb States
Octobee Teem, 1967 

No. 37

Commonwealth op Massachusetts,
Petitioner,

—v.-

D onald M. P ainten,

Respondent.

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION 
AND THE CIVIL LIBERTIES UNION OF 
MASSACHUSETTS AS AMICI CURIAE

Interest of the Amici

For a half century the American Civil Liberties Union 
has engaged in legal controversies in support of the Bill 
of Rights and of the continuing struggle for legal recogni­
tion of the demands of civilized procedure in the admin­
istration of criminal justice. We believe that the issue pre­
sented in this case is one of importance to the enforcement 
of the Fourth Amendment in a wide range of applications 
going beyond the interests of the parties herein, and we 
wish with deference to submit our views concerning its 
proper resolution to the Court. The parties have consented 
to the filing of a brief by the American Civil Liberties 
Union. Copies of their letters of consent have been filed 
with the Clerk.



2

Argument

The question decided by the courts below and presented 
for review by this Court* is a subspecies of a broader issue 
that pervades administration of the Fourth Amendment. 
The issue is : what pertinency has a law enforcement offi­
cer’s purpose, his intent, his state of mind, for the validity 
of his conduct under the Amendment? Or, to put it con­
versely: to what extent, and under what circumstances, 
should the rules of Fourth Amendment regulation be fash­
ioned to take account of the officer’s purpose, his intent, as 
distinguished from a wholly objective assessment of what 
he does?

A  few specific applications of the issue will exemplify, 
but not exhaust, its range. (1) A highway patrolman flags 
down a motorist, asks to see his operator’s license and, 
looking through the outside windows of the car, perceives 
recognizable contraband on the floor of the rear seat. The 
officer has no warrant for the car or driver, and no prob­
able cause to believe that the car is carrying contraband or 
that its driver has committed or is committing a crime. 
Is it material to the lawfulness of the stop whether the 
officer is engaged in a bona fide license check or is using 
the license check to try out his suspicion (not amounting to 
probable cause) that the driver is rum-running? (2) A 
postal inspector opens a third-class envelope without a 
warrant and discovers obscene literature. Is it material to 
the lawfulness of the search whether his purpose was to 
assure that the envelope’s contents qualified for the third-

* This brief is limited to discussion of the single issue identified 
in the text. We do not treat other grounds upon which the deci­
sion below might be affirmed.



3

class rate, or was to verify Ms suspicion that obscene mail­
ings were emanating from a particular sender! (3) An 
officer sees a group of bearded and bizarrely dressed young 
men gathered in a public park. He stations himself nearby 
and, when one of the young men is heard to curse, arrests 
him for profanity and searches him incident to the arrest, 
discovering marijuana. Is it material to the lawfulness of 
the arrest and search whether the arrest was in fact de­
signed to hold the man to answer a profanity charge, and 
the search to protect the officer against a possible concealed 
weapon; or whether both arrest and search were motivated 
by the officer’s wish to check for marijuana? (4) An under­
cover agent for the Federal Bureau of Narcotics makes a 
purchase of illicit heroin from Mr. X. On the basis of this 
transaction, FBN agents obtain a valid warrant for the 
arrest of X. They execute it by arresting X  in his apart­
ment, and they search the apartment after the arrest. Is 
it material to the lawfulness of the entry, arrest and 
search whether the decision to arrest X  at home was made 
because he happened to be home at the first convenient 
opportunity for an arrest following the issuance of the 
warrant, or because the officers preferred to stage the ar­
rest in a fashion that would allow “ incidental” search of 
the apartment?

There are numerous other sorts of Fourth Amendment 
questions which do—or might doctrinally be made to— 
implicate a law officer’s purpose or intent. The several 
specific situations described in the preceding paragraph 
will serve to delimit the sort of case which we propose to 
discuss in this brief. They are characterized by the fol­
lowing attributes: (A) A power is claimed by a law en­
forcement officer to engage in conduct that intrudes upon



4

the privacy or personality of a citizen (the power to stop 
a moving car, to open a mailed envelope, to make an arrest, 
to enter an apartment). (B) The allowance of that power 
consistently with the Fourth Amendment is sought to be 
justified by the existence of a specific law enforcement need 
(to check operators’ licenses, in order to guard against the 
dangers of unlicensed drivers; to inspect low-postage mail, 
in order to assure against abuse of limited mailing privi­
leges by employment of the low rate for non-qualifying 
mail; to make an arrest, in order to assure the presence of 
an accused at his trial; to enter a dwelling, in order to ef­
fect an arrest). (C) The power may in fact be exercised 
by an officer for some other purpose than the one which is 
asserted to justify it. The questions that are judicially 
posed in such cases are: Should the power claimed be al­
lowed at all? If so, under what circumstances? Should the 
circumstances that condition the allowable exercise of the 
power include the requirement that it be used for the pur­
pose for which it was given? Should other doctrinal de­
vices be employed to assure that, for the most part, the 
power will be used only in the service of the purpose for 
which it was given?

These questions may be made somewhat more concrete 
by identifying the sorts of possible judicially formidable 
rules in one of our hypothetical situations. We take the 
case of third-class mail. The Court might say that although 
first-class mail may be opened only upon a warrant (this is 
so both by force of an early dictum of this Court constru­
ing the Fourth Amendment, and more recently by force of 
statute), third-class mail may be opened without a warrant. 
The justification for such a decision would doubtless be 
that some sort of a check (without probable cause) of pur­



5

ported low-postage mail is necessary to assure the integ­
rity of the postal rate structure, and that the extent of 
the intrusion involved in such inspection is not incommen­
surate in light of the regulatory or law enforcement need, 
particularly since the citizen can purchase the protection 
of the warrant requirement for a few cents more. Having 
allowed the power to make warrantless search of third- 
class mail, the Court might hold that that power can be ex­
ercised irrespective of the searcher’s purpose, and that 
anything found may be used in evidence without restric­
tion. Or it might say that the search power is unlawfully 
exercised whenever it appears that the searcher’s purpose 
was not rate-control inspection but criminal investigation, 
since the sole justification for allowing the power is not 
present in such a case. Alternatively, the Court might 
fashion a rule excluding from evidence anything found in 
a third-class mail search except evidence that non-qualify­
ing mail was sent under third-class rates. The rationale 
of this last rule, of course, would be to discourage abuse of 
the rate-control search power by removing any incentive 
to employ it for ulterior purposes, thus leaving postal in­
spectors no motive for search except that which supports 
the search power given.

The dangers of abuse of a particular power are, we 
would suppose, a pertinent consideration in determining 
whether the power should be allowed in the first instance. 
Thus, it is not inconceivable that the Court might conclude 
that the intrusiveness of third-class mail inspection, plus 
the possibility of its abuse as a means for criminal investi­
gation free of the usual warrant safeguard, outweigh con­
cerns for the integrity of the postal rate structure, and 
compel the conclusion that warrantless third-class mail



6

searches should never be allowed. We think it still more 
likely that the Court might say that motor-vehicle stop­
pings without probable cause are altogether impermissible, 
because the danger of abuse of the license-cheek pretext 
far outweighs the need of the police to apprehend un­
licensed drivers not observed to be violating other traffic 
laws or driving unsafely. Such total disallowance of a 
claimed police power on grounds of its potential for abuse 
is particularly justifiable where the power is extremely 
intrusive, the potential for abuse is high, and the asserted 
justificatory need is not particularly weighty even in cases 
squarely and legitimately within the scope of justification.

But the need for a particular police power may some­
times be intense, although narrow. We do not suppose that 
the Court would hold it unconstitutional to make an arrest 
upon probable cause (or at least on view) for any minor 
offense, simply because the arrest power may be—and, 
indeed, very frequently is—abused by its employment as 
an investigative tool. The justifications for arrest—to stop 
a course of criminal conduct, and to assure that the of­
fender is forthcoming for prosecution—are probably suf­
ficiently compelling to preclude entire disallowance of the 
arrest power. The question remains: should curbs be re­
tained against the likely abuse? One such curb would be 
to disallow any search incident to minor-offense arrests, 
or at least to require the exclusion from evidence of any­
thing found in “ incidental” searches. Another would be to 
pursue inquiry into the officer’s “purpose” in making the 
arrest, and hold the arrest unlawful if the purpose were 
found bad. The first alternative is obviously the more 
drastic.



7

It might well be that in the case of police powers whose 
intrusive quality is not great or the likelihood of whose 
abuse is exceedingly slight, neither of the alternative curbs 
is appropriate. Where the power is very intrusive and the 
likelihood of abuse substantial, the drastic exclusionary 
sanction may be called for. For example, if this Court 
were to hold that police may stop motorists without prob­
able cause for “ license checks,” we would think that the 
case for a rule excluding from evidence anything observed 
in the course of the stop would be compelling. We say this 
without ignoring the doctrinal problems involved in such 
a rule, which unhinges the exclusionary sanction from the 
“ substantive” constitutional regulation that it enforces, 
and applies exclusion to the product of a practice that is 
not itself constitutionally condemned. But we do not think 
the doctrinal problem insurmountable, since the Court’s' 
decisions firmly establish that the exclusionary sanction is, 
in its entirety, a judicially created enforcement technique 
and, as such, judicially malleable to serve its vital pur­
poses. However that may be, situations involving lesser 
degrees of police intrusion or of likelihood of abuse prob­
ably do not demand or justify the use of a broad exclu­
sionary rule to discourage abuses. In some such situations, 
we think the alternative safeguard—inquiry into police 
purpose—is appropriate.

That brings us to the present case. The matter comes 
here after concurrent findings by two federal courts below 
that police officers went to Painten’s door and knocked with 
the purpose of entering to make an arrest and search of 
the apartment. The officers had no search warrant, nor 
even probable cause. Those findings have record support 
and it would be inconsistent with the usual scope of review



8

by this Court to upset them. The question, then, is whether 
on such facts the police conduct violated the Fourth 
Amendment.

The Commonwealth of Massachusetts argues that it did 
not. The Commonwealth does not contend that the officers’ 
purpose—if it was what both courts below found that it 
was—was licit. Such a contention could not be entertained, 
for the most fundamental principles of the Fourth Amend­
ment condemn a warrantless police entry into a dwelling 
in the night time, without probable cause to arrest an occu­
pant. But the Commonwealth says that this purpose is 
constitutionally irrelevant. The Fourth Amendment ques­
tion, it argues, is addressed only to what the officers did, 
not why they did it. Starting from the premises, then, that 
officers may constitutionally knock at a citizen’s door for 
any of a number of licit purposes—to make inquiries of 
persons inside, to ask the inhabitants to cooperate in ob­
serving a new parking regulation, to sell tickets to the 
Policemen’s Ball—the argument proceeds through the prin­
ciple of irrelevancy of motive to the conclusion that the 
knock on the door in this ease, although a sly subversion 
of police power, was not in excess of such power and hence 
should be sustained.

The argument is beguiling. It purports to pose for this 
Court’s choice two inconsistent perspectives in the enforce­
ment of the Fourth Amendment: the “ objective” perspec­
tive and the “ subjective” perspective. The objective per­
spective concerns itself only with the circumstances under 
which the police act, and the nature of their conduct in 
those circumstances. The subjective perspective turns con­
stitutional consequences on what the police are thinking. 
As between these two perspectives, the objective one is



9

preferred. This is so for reasons which the Commonwealth 
articulates forcefully. Fourth Amendment rules are princi­
pally mandates for the harried policeman and the hurried 
motions judge. They should be as simple and workable as 
possible, so that the policeman can know what is expected 
of him and the judge can enforce it. Subjective standards 
are difficult to abide by, hard to administer. Judicial in­
vestigation of police purpose is a frustrating, ordinarily 
futile endeavor; and the policeman cannot predict its out­
come. The impracticable trial of mental states is, in any 
event, not worth the trouble, since whatever it is that the 
policeman does is equally intrusive upon his suspect’s pri­
vacy, whatever its motivation. What the citizen cares 
about, and what the Amendment restricts, is where, under 
what circumstances, the policeman’s body ends up, not by 
what cogitative paths his mind leads him there.

We agree with these points, and with the conclusion that 
any general principle of Fourth Amendment construction 
that turns its restraints in large part upon inquiry into 
police mental states would be unbearable. A broadly “ sub­
jective” perspective would commit the guarantees of the 
Fourth Amendment almost entirely into the keeping of the 
police—whose restraint is the Amendment’s purpose. In 
saying this, we do not refer principally to the risk of police 
perjury, although perjury is a factor to be reckoned with. 
The more essential problem is that rules focused on police 
purpose are a self-fulfilling prophecy. If a policeman is 
told that a certain purpose validates what he wants to do, 
he will honestly have that purpose. He would be less than 
human if he did not.

For this reason—and because the Fourth Amendment is 
more concerned with the tangible invasions of a citizen’s



10

privacy than with the policeman’s intangible accompany­
ing cerebrations—most of the rules restricting police con­
duct have to be strictly objective. They must describe what 
acts a policeman is permitted to do under what circum­
stances, and hold unconstitutional any objective excess of 
action or objective deficiency of justification. Absent a 
warrant (or “ exceptional circumstances” ), for example, a 
policeman cannot be permitted to enter a dwelling for any 
purpose, however benign. If he comes selling Policemen’s 
Ball tickets, he may knock at the door; but, if he receives 
no answer, he may not try the knob and enter.

It does not follow, however, that because the rules con­
straining the maximum permissible allowance of police au­
thority in various situations under the Fourth Amend­
ment must be objective, that all Fourth Amendment rules 
must be. To say that licit motive cannot validate an ob­
jectively invalid search or seizure, does not compel the 
converse proposition: that illicit motive can never invali­
date an objectively valid one. Here is where we part com­
pany with the Commonwealth, and with its analysis that 
invites this Court to choose between a subjective and an 
objective Fourth Amendment. We think no such choice is 
posed.

Rather, we submit, either a wholly subjective or a wholly 
objective perspective on the Fourth Amendment—a gen­
eral reliance upon, or a total exclusion from consideration 
of, police “ purpose,” “ intent,” “ motivation”—would defeat 
the Amendment as an instrument of practical government. 
We have stated our objections to a subjective Fourth 
Amendment in the immediately preceding paragraphs. Our 
objections to a wholly objective Fourth Amendment derive 
from the considerations we identified earlier in the brief.



11

Under any set of Fourth Amendment principles, certain 
powers must be given the police for specific and limited 
purposes—that is, under the impulsion of specific and lim­
ited justifications. These powers are given them not be­
cause their exercise is not intrusive, but because its intru­
siveness is justified in light of particular law enforcement 
needs. When the needs are not present, the justification 
fails, and an impermissible intrusion remains. Of course, 
the objective circumstances which are made the prerequi­
site conditions of the power serve to assure that, in some 
measure, its exercise will be confined to the general area 
of the justificatory need. Allowance of police power 
to enter a dwelling to make an arrest, for example, is “ ob­
jectively” limited to situations where the police have the 
makings of a valid arrest (an arrest warrant or probable 
cause), and where they have reasonable grounds to believe 
that the person sought to be arrested is in the dwelling. 
If either of these prerequisite conditions fails, the need 
justifying the power of entry fails, “ objective”  circum­
stances proclaim its failure, and the power is withdrawn 
under “ objective” standards. The trouble is that there is 
often only a very approximative correlation between the 
justificatory need and any definable set of objective circum­
stances; thus, the need may be lacking although all of its 
objective components are present and accounted for. Po­
lice who have a valid arrest warrant for a man reasonably 
believed to be in a dwelling do not invariably have to enter 
to arrest him; often they choose not to do so; and when, 
conversely, they do choose to enter, it may be for very dif­
ferent reasons than those whose supposition persuades the 
courts to grant the entry power.

The fewer the objective conditions on any given power, 
of course, the less effective are those conditions as a means



12

of assuring some rough, alignment between the exercises of 
the power and its justifications. The only limitation on the 
power of third-class mail inspection is that the mail be 
third class. But there is palpably no need to open every 
piece of third class mail, and the postal inspectors do not. 
The principles by which they determine what third-class 
mail to open, therefore, may stray very far from the ju­
dicially recognized justification relating to postal rates, and 
no '■‘objective” check be available to hold the power in line. 
In such a situation (and unless the courts are willing to 
fashion a blanket exclusionary rule of the sort we have 
suggested above), a “ subjective” check via inquiry into the 
officer’s purpose seems to us better than no check at all.

This is certainly the case, we believe, with the power of 
policemen to knock on the doors of dwellings in the night 
time, as happened to Donald Painten. A  night-time knock 
on the door is no small intrusion to a home-owner. The 
potential of the knocking practice for abuse—its potential 
employment by police with no legitimate business, banging 
around to see whether something turns up—must surely be 
apparent to anyone who notes in the Advance Sheets alone 
the number of defendants convicted on police testimony of 
what was seen through the crack of a half-opened apart­
ment door. And, on the Commonwealth’s own theory in this 
Court, the practice is not objectively regulable, because 
there are no necessary objective preconditions to its valid­
ity : police may knock on any door, on any set of facts, with­
out probable cause, as they did to Painten. We think that 
state of affairs falls considerably short of the protection of 
the people in their houses envisaged by the Fourth Amend­
ment. Unless this Court is prepared to declare a broader 
“ objective” safeguarding rule—that police without a war­



13

rant and without probable cause are never permitted to 
knock on the doors of dwellings in the night time; or that, 
at the least, anything they observe as a result of the knock 
is inadmissible in evidence in a subsequent criminal trial 
of the home-owner—we submit that the least the Amend­
ment requires is the check of a “ subjective” inquiry into the 
question whether the knocking officer’s purposes were 
within the range of those legitimate ones for whose effec­
tuation the power to knock is given him.

We do not make this submission in the expectation that 
many entries will be judicially invalidated as a result of 
inquiries into police purpose. In our experience at least, 
the courts below reached a rare result in making factual 
findings against the police. Such findings are rarer still in 
state courts than federal, and almost never are made if a 
policeman testifies squarely to any set of facts on the basis 
of which his action can be sustained. I f this habitual ten­
dency of judges to credit police testimony is coupled with 
the natural tendency of the police to testify whatever is 
necessary to validate their conduct—a tendency which the 
Commonwealth candidly admits at page 9 of its brief by 
the observation that “Under the decision of the Court of 
Appeals, . . . police officers would feel compelled to give 
reasons other than the true ones”1—few police actions are 
going to be invalidated by reason of illicit purpose. But 
even if this be true, the inquiry serves some useful pur­
poses.

Experienced criminal attorneys are often heard to re­
mark that police testimony in search-and-seizure cases has 
the monotonous sameness that was proverbially character­
istic of uncontested divorce cases under the (old) New York



14

law. Policemen can and apparently do “ feel compelled to 
give . . . other than true” testimony about physical facts 
as well as psychic ones. Nevertheless, trial courts habitu­
ally believe them, and appellate courts habitually affirm the 
trial courts. There is often something of an air of unreality 
about this whole business in the motions court. What is 
being litigated is what this Court recently said was a valid 
piece of police work, rather than what happened to the de­
fendant who is moving to suppress.

Inquiry into police motive or purpose can oftentimes 
breathe some fresh air of reality into the process. This is 
so not because “ pat” tales of licit motive are impossible to 
construct falsely. They are often easy to construct. But 
the officer who abuses his powers by exploiting them for 
impermissible ends has a somewhat more difficult time 
squaring his testimony with both objectively verifiable fact 
(which is not known independently by the judge, but may 
be provable by the defense) and a plausible-sounding 
theory of police purposes and objectives (as to which the 
judge, before long, begins to form his own general impres­
sions on the basis of past police testimony he has heard, 
together with a common-sense appreciation of what the 
police are after), than with the verifiable facts alone. The 
conflicts between facts and ostensible purposes may be 
made the matter of embarrassing cross-examination (whose 
prospect itself may be some deterrent to police illegality); 
and even though the motions judge credits the officer in 
the end, he may do so with some unease that tends in the 
end to give him a warranted skepticism toward police tes­
timony in these cases. Appellate courts, also, may affirm; 
but, again, not without the unease that is engendered by 
exposure to records on which the lower courts credited



15

seemingly incredible testimony. These, we think, are proc­
esses that tend toward the maintenance of healthy correc­
tives within a system of litigation that turns almost entirely 
upon professional testimony by officers.

We must emphasize again that in making these last 
points we are not supposing a prevalent condition of whole­
sale police perjury ; nor does our submission in this Court 
rest on any such supposition. We merely answer the Com­
monwealth’s point that the only effect of judicial inquiry 
into police purpose is to compel the police to lie. We think 
rather that they will tell the truth sometimes and lie some­
times ; that they will act with some awareness of the incon­
veniences of having to lie; that when they lie, they will 
sometimes be caught at it; that more frequently they will 
not; but that the litigation process will be better ventilated 
by reason of the inquiry into why they did what they did. 
And the Fourth Amendment, we submit, will be better 
served by the resulting constant reemphasis—and occa­
sional vindication—of the principle that police intrusive 
powers, allowed only because judicially deemed necessary 
for one or a few limited purposes, may not with complete 
impunity be subverted to others which encourage their 
over-frequent exercise.



16

CONCLUSION

The judgment of the Court of Appeals should be 
affirmed.

Respectfully submitted,

A nthony G-. A mstebdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Melvin L. W ule
156 Fifth Avenue
New York, New York 10010

Attorneys for the American 
Civil Liberties Union and 
the Civil Liberties Union 
of Massachusetts

George J ohnson

3400 Chestnut Street 
Philadelphia, Pa. 19104 

Of Counsel



• a MOHTON ST**rt 
»iewvowKM,H.*

38