UNITED STATES OF AMERICA, PETITIONER V. VICTOR DOMINGO GARCIA, ET AL. No. 82-1549 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the decision of the United States Court of Appeals for the Fifth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit PARTIES TO THE PROCEEDING In addition to the parties shown by the caption of this case, Ruben Barrera-Saenz and Adan Montolla Mungia were appellants below and are respondents here. TABLE OF CONTENTS Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-17a) is reported at 676 F.2d 1086. The ruling of the district court denying respondents' motion to suppress evidence (App. D, infra, 20a-22a) is unreported. JURISDICTION The judgment of the court of appeals was entered on May 28, 1982 (App. B, infra, 18a). A petition for rehearing was denied on December 20, 1982 (App. C, infra, 19a). On February 9, 1983, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including March 20, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Fourth Amendment exclusionary rule may be invoked in a federal criminal prosecution to suppress the evidentiary fruits of investigative stops and ensuing searches that met the constitutional standards of reasonable suspicion and probable cause but were technically illegal under state law because the arresting officers -- state game wardens -- lacked statutory authority to make arrests for non-game law violations occurring outside of state parks. 2. Whether, assuming it is sometimes appropriate to apply the exclusionary rule on the basis of the illegality of a stop under state law, the evidentiary fruits of the stops in this case nevertheless should be admissible because the arresting officers reasonably believed that they were acting within the scope of their authority. 3. Whether the application of a "reasonable mistake" exception to the exclusionary rule in a federal criminal proceeding is in any way dependent on state rules of evidence or is instead solely a matter of federal law. STATEMENT Following a jury trial in the United States District Court for the Southern District of Texas, respondent Mungia was convicted of possessing marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a)(1), and respondents Garcia and Barrera-Saenz were convicted of conspiring to commit that offense, in violation of 21 U.S.C. 846. /1/ The evidence at trial showed that respondent Mungia transported some 2,073 pounds of marijuana and that respondents Garcia and Barrera-Saenz participated in a conspiracy to further the distribution of the marijuana. The scheme was thwarted when two Texas game wardens discovered respondents' activities. Respondent Garcia was sentenced to eight years' imprisonment. Respondent Mungia was sentenced to five years' imprisonment, to be followed by a three-year special parole term. Respondent Barrera-Saenz was sentenced to five years' imprisonment, all but six months of which were suspended in favor of probation. The court of appeals reversed the convictions (App. A, infra, 1a-17a). 1. The evidence showed that on the evening of October 17, 1980, Texas game wardens Christopher Huff and Hilario Saenz established an observation post on a hill approximately 12.8 miles north of Rio Grande City, Texas, and some 100 yards west of Highway 3167 (Tr. 61, 199). /2/ The wardens frequently used this observation post to patrol for game violations (Tr. 61-62). At approximately 10:15 p.m., the officers heard a loud, banging noise and the sound of an engine in the area south of their their lookout point. (Tr. 62, 205, 403). Looking through his binoculars, Officer Huff saw a large, white vehicle driving through a pasture (Tr. 63). The vehicle was driving without any lights (Tr. 63, 65, 207). Huff gave his binoculars to Officer Saenz, who also observed a large truck without lights moving through a pasture (Tr. 403-404). When the truck reached Highway 3167, its headlights were turned on. It then headed north on Highway 3167 (Tr. 64, 208, 405). Officer Huff thought it was unusual to see a large truck driving without lights in a pasture (Tr. 72), particularly because he knew from personal knowledge that the dirt road on which the truck was travelling was hazardous (Tr. 140). /3/ In addition, Officer Huff's suspicions were aroused because he recently had participated in the recovery of a stolen tractor-trailer in the same general area (Tr. 105, 143). Finally, only two days before the events in question, a Customs Patrol Officer had asked Officer Huff to be on the lookout for large trucks because of their use in the transportation of illicit drugs (Tr. 106, 142-143). With this background knowledge, Officer Huff suggested to his fellow officer that the truck might be stolen or that it might contain a load of marijuana (Tr. 72, 208). Accordingly, the two officers pursued the truck; they eventually stopped it about one-half mile north of their observation post (Tr. 73, 209). The vehicle was an 18-wheel diesel truck with a tanker-trailer of the type usually used for carrying oil or gasoline (Tr. 74-75, 210). Huff knew that there were no oil wells on the property from which the tanker had emerged (Tr. 152-153). The officers approached the cab of the tanker, and respondent Mungia, the sole occupant, stepped out. Officer Huff identified himself and asked Mungia for identification. Mungia produced a driver's license and, in response to a question from Huff, said that he had come from a ranch "down below there" and was looking for the Las Escobas Ranch (Tr. 75-77, 210-212, 407). Mungia became very nervous; his hands were trembling (Tr. 78, 212). When Huff asked Mungia what company employed him and who owned the tanker, Mungia said only that the tanker belonged to "some gringo" for whom Mungia worked but whom he could not identify (Tr. 78, 154, 212-213, 408-409). Huff then said he was going to search the tanker; Mungia told him to "go ahead" (Tr. 78, 154-155, 213). Huff climbed onto the trailer. He found marijuana residue around the opening of the tank, and when he opened the lid, he encountered a strong smell of marijuana. He then shined his flashlight into the interior of the tanker, where he saw many sacks of a substance that appeared to be marijuana (Tr. 79-80, 213-216). After climbing down from the trailer, Huff advised Mungia that he was under arrest for possession of marijuana (Tr. 80, 216). Leaving Officer Saenz to watch the tanker, Huff handcuffed Mungia, placed him in the patrol car and drove back to the point where the tanker had entered Highway 3167 from the dirt road. Huff parked his patrol car there on the shoulder, with all lights off (Tr. 81-82, 216-217, 220-223). Within approximately five minutes, a beige Chevrolet pickup truck came down the same dirt road, again without lights. Huff first saw it when it was about 20 yards away from his patrol car. When the pickup reached his position, Huff turned on his headlights and red lights; the pickup stopped (Tr. 85-87, 223-225). Huff left his patrol car and approached the pickup. Three men were in the cab; Huff recognized the driver as respondent Garcia. As he approached, Huff saw the men on the passenger side -- co-defendant Garza-Soliz -- reach down toward the floor. Huff was unsure whether Garza-Soliz was trying to conceal something or was reaching for a weapon (Tr. 87-89, 93, 227-230). Accordingly, Huff directed the three men to leave the pickup and place their hands on the driver's side of the truck. Garcia, Garza-Soliz, and respondent Barrera-Saenz -- the third man -- complied with Huff's request. Huff then patted them down for weapons. In Garcia's back pocket, Huff felt a metallic object that turned out to be a loaded ammunition clip for a .45 caliber pistol. Garcia advised Huff that he had a pistol in the cab of the pickup (Tr. 89-92, 229, 231-233). Huff used his one remaining set of handcuffs to handcuff Garcia and Barrera-Saenz together. Garza-Soliz, from whose boot Huff removoved a bag of marijuana, stood alongside the other two (Tr. 93-95, 233-234, 240). Officer Huff then went around the pickup to the passenger side to search for Garcia's weapon. As he did so, Huff noticed the odor of marijuana and saw marijuana residue in the bed of the pickup (Tr. 95, 237). He also found a Colt .45 caliber pistol under the seat on the floor of the passenger side (Tr. 96, 236-237). Huff then returned to his patrol car to radio the Starr County Sheriff's Department for assistance. As he did so, co-defendant Garza-Soliz fled into the brush (Tr. 97, 240, 245). Approximately 15 minutes later, two sheriff's deputies arrived. Huff left respondents with one deputy; Huff and the other deputy followed the tracks of the 18-wheel tanker on the road into the pasture (Tr. 98, 247-250). Deep in the pasture, in the middle of the road, they found a white 1980 GMC pickup with a flat tire; the officers later determined that the pickup was registered to respondent Garcia's brother. Marijuana residue and footprints were visible around the pickup, and the tracks of the 18-wheeler ended near the pickup's location (Tr. 100-102, 250-253, 256, 258-259). The tanker's tracks formed a sort of "Y" around the pickup, as if the tanker had turned around at that location (Tr. 252-253, 264, 469-471, 473, 579-581). In the meantime, several Customs Patrol officers arrived at the scene. After Huff briefed them, they too went into the pasture to examine the tanker tracks and the pickup (Tr. 265-266, 268, 273-275, 626-627). Their examination of the white pickup revealed marijuana residue on the truck bed, bumper, and left rear tire (Tr. 428-429, 628-629, 673). Samples of the residue from both pickup trucks were taken the next morning (Tr. 750-752). The tanker truck yielded 2,073 pounds of marijuana (Tr. 749). /4/ 2. Prior to trial, respondents unsuccessfully moved to suppress the evidence of marijuana on the ground that, under Texas law, game wardens lack authority to make arrests for non-game violations, that the arrests were therefore illegal, and that the marijuana should be suppressed as the evidentiary fruits of the illegal arrests. Respondents also argued that the game wardens lacked reasonable suspicion to stop the tanker or probable cause to search the tanker and to arrest respondents Garcia and Barrera-Saenz. At the pretrial hearing on the suppression motion and at trial, Officer Huff consistently testified that he was a certified peace officer (Tr. 60, 132-133, 150-151, 197). The government also called as a witness the regional director of law enforcement of the Texas Department of Parks and Wildlife; he would have testified to his belief that game wardens have the powers of peace officers under Texas law. But before that witness could so testify, the district court held that Huff had authority under applicable Texas statutes to arrest respondents (Tr. 157-158). The district court further held that the stop of the tanker was justified by reasonable suspicion and that the game wardens had probable cause to search the tanker and to arrest respondents (App. D, infra, 20a-22a). 3. The court of appeals reversed, holding that the marijuana should have been suppressed (App. A, infra, 16a-17a). The court began its analysis with the proposition that the legality of respondent's arrests by state officers is governed by state law (id. at 4a-5a). It then determined that the arrests were illegal because, under Texas law, game wardens lack "cosmic arresting authority" (id. at 14a). Although article 2.12(11) of the Texas Criminal Procedure Code Annotated (Vernon 1977) includes game wardens within its definition of peace officers, and article 2.13 authorizes a peace officer to make warrantless arrests "where * * * authorized by law," the court concluded that the Texas Parks and Wildlife Code limits a game warden's arrest powers either to offenses committed in state parks or to violations of game laws (App. A, infra, 7a-8a, 13a). The court rejected the government's argument that article 14.03 of the Texas Criminal Procedure Code Annotated, which grants any peace officer the power to make warrantless arrests on probable cause, applies to game wardens despite the limitations of the Parks and Wildlife Code (App. A, infra, 12a-13a). Because the arrests in this case neither took place in a state park nor were for violations of a game law, the court held that the arrests were invalid and that the marijuana evidence should have been suppressed as the fruit of the arrests (id. at 14a-16a). Finally, the court ruled that the "good-faith" exception to the exclusionary rule (see United States v. Williams, 622 F.2d 830, 840-847 (5th Cir. 1980) (en banc), cert. denied, 449 U.S. 1127 (1981)) was not applicable in this federal prosecution because the Texas courts do not recognize such an exception (App. A, infra, 16a-17a). Accordingly, the court reversed the convictions (id. at 17a). /5/ 4. The government petitioned for rehearing. First, the government pointed out that after the court of appeals' decision in this case, a panel of the Texas Court of Criminal Appeals expressly held that game wardens possess the general arrest powers accorded to any peace officer under articles 2.13 and 14.03 of the Texas Criminal Procedure Code Annotated. Christopher v. State, 639 S.W.2d 932 (Tex. Crim. App. 1982). /6/ Accordingly, the government argued that it would be appropriate for the court of appeals to reconsider its opinion and to defer to the Christopher court's determination on this issue of state law. Further, the government argued that any technical illegality in the game wardens' actions under state law should not preclude admission of the marijuana evidence in this federal prosecution because there was no indication that the game wardens' actions violated federal constitutional standards and because the game wardens acted in the reasonable belief that they possessed general arrest authority under Texas law. Relying principally on Elkins v. United States, 364 U.S. 206 (1960), the government contended that the court of appeals erred in applying state rather than federal law to determine whether to to invoke the exclusionary rule. The court of appeals announced that it would defer any ruling on the government's rehearing petition after learning that the Texas Court of Criminal Appeals had granted a petition for rehearing en banc in Christopher v. State, supra. On rehearing, the state court again affirmed Christopher's conviction for possession of marijuana (see page 8 note 6, supra), but it modified its ruling on the scope of game wardens' general arrest powers. Relying on Tex. Rev. Civ. Stat. Ann. art. 6701d Section 153 (Vernon 1977), the court held that game wardens are authorized to make warrantless arrests for violations of state traffic laws (whether or not the traffic violations occur in state parks or in connection with game law violations), but it rejected the panel's conclusion that game wardens possess the full arrest powers of any Texas peace officer (639 S.W.2d at 937). Thereafter, the court of appeals denied the government's rehearing petition in this case (App. C, infra, 19a), citing the en banc decision in Christopher. The court did not address the government's alternative grounds for rehearing. /7/ REASONS FOR GRANTING THE PETITION The court of appeals has extended the reach of the Fourth Amendment exclusionary rule far beyond its intended scope. The court did not rule, nor could it have ruled on this record, that the game wardens violated the Fourth Amendment or any federal statute or rule. And the state law that was violated was not one intended to safeguard the Fourth Amendment or related privacy interests. Instead, the state law was a purely technical one designed to allocate arrest powers among various state officials; it was not intended to protect the rights of suspiciously-behaving citizens. This Court has never held that the exclusionary rule is applicable to violations of such idiosyncratic state laws. The court of appeals also erred in failing to apply its own good-faith exception to the exclusionary rule in this case. Clearly, the arresting officers, even if mistaken, did not act unreasonably in thinking that they possessed the full arrest powers of any Texas peace officer; the district court and a panel of the Texas Court of Criminal Appeals so held. The game wardens could not reasonably have been expected to anticipate the contrary result ultimately reached by a panel of the Fifth Circuit; and clearly they could not have predicted the result reached by the state court sitting en banc, which grants them full arrest powers for drug offenses discovered in the course of traffic violations but not otherwise. Finally, the court seriously erred in looking to state evidentiary rules to determine the applicability of the exclusionary rule. The admissibility of evidence in federal criminal proceedings is governed by federal law, including the Federal Rules of Evidence, not by state law. The result of the court's decision is an unjustified extension of the exclusionary rule that is compounded by confusion as to the applicable rules of evidence. In light of the importance to our system of criminal justice of the proper application of the exclusionary rule, this Court's review is warranted. 1. The court of appeals did not hold, or even suggest, that the stop of the tanker driven by respondent Mungia, although perhaps illegal under state law, in any way violated the Fourth Amendment or any federal law. /8/ Instead, the court summarily concluded (App. A, infra, 16a), without citation of authority, as follows: Having found that defendants were illegally arrested, it follows that the evidentiary fruits of those unlawful arrests should not have been introduced at defendants' trial. Contrary to the court of appeals' unsupported assertion that suppression was required in these circumstances, we submit that the court was required first to consider the nature of the state illegality. If, as here, the violation of state law was not of constitutional magnitude, then neither the Fourth Amendment nor any federal statute confers authority on the federal courts to suppress evidence obtained in violation of a purely technical state law. /9/ a. Since Weeks v. United States, 232 U.S. 383 (1914), it has been clear that the exclusionary rule is a judicial response to "direct violation of the constitutional rights of the defendant" (id. at 398; emphasis added). See, e.g., Stone v. Powell, 428 U.S. 465, 482(1976)(emphasis added)("(t)he exclusionary rule was a judicially created means of effectuating the rights secured by the Fourth Amendment"); United States v. Calandra, 414 U.S. 338, 348 (1974) (emphasis added) ("the rule is a judicially created remedy designed to safeguard Fourth Amendment rights * * *"); Elkins v. United States, 364 U.S. 206, 217 (1960) (emphasis added) (the purpose of the rule is "to compel respect for the constitutional guaranty * * *"). See also United States v. Caceres, 440 U.S. 741 (1979) (refusing to exclude evidence obtained as a result of electronic recording in violation of government regulations but not in violation of defendant's constitutional rights); United States v. Hensel, No. 81-1538 (1st Cir. Jan. 25, 1983), slip op. 27 ("The exclusionary rule was not fashioned to vindicate a broad, general right to be free of agency action not 'authorized' by law, but rather to protect certain specific, constitutionally protected rights of individuals"). /10/ Indeed, despite the exclusionary rule's broad purpose of deterring constitutional violations, this Court has recognized that application of the rule "deflects the truthfinding process and often frees the guilty." Stone v. Powell, supra, 428 U.S. at 490. Accordingly, the Court has substituted for automatic exclusion of evidence seized in violation of Fourth Amendment rights a balancing test in which deterrence of official misconduct is weighed against the substantial cost to society of excluding probative evidence. See, e.g., United States v. Janis, 428 U.S. 433 (1976); United States v. Calandra, supra, 414 U.S. at 349-352; Alderman v. United States, 394 U.S. 165, 175 (1969). These cases hold that invocation of the exclusionary rule may be inappropriate even when actual violations of the Fourth Amendment have occurred; it follows a fortiori that imposition of that drastic remedy is wholly disproportionate to the purpose for which it was apparently used here, viz., the enforcement of a state's statutory provisions circumscribing the arrest powers of game wardens. Accordingly, Officer Huff's stop of respondents did not call for invocation of the exclusionary rule because, as the district court held (App. D, infra, 20a-22a), the officer's actions were fully consistent with Fourth Amendment requirements and did not otherwise violate the Constitution. b. Under the Fourth Amendment, an investigative stop, such as the stop of the tanker truck in this case, need be grounded only on reasonable suspicion. See United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). In the present case, the game wardens had a reasonable suspicion that criminal activity was afoot based on respondent Mungia's highly unusual activity of driving a large tanker at night without lights on a very poor ranch road near the border, coupled with Officer Huff's own knowledge of previous criminal activity involving a stolen tanker in the same general area and another officer's directive to watch for large trucks of the type driven by Mungia because of their use in marijuana smuggling in the area (Tr. 72, 105-106, 138-143). This information then ripened into probable cause to believe that the tanker contained contraband, justifying the search of the tanker, when respondent Mungia was unable to answer or gave evasive answers to certain very elementary questions concerning the place of origin of his trip, the identity of his employer, and the owner of the tanker (Tr. 75-78, 154; see also Tr. 212-213, 408-409). The discovery of marijuana in the tanker clearly justified Mungia's arrest, as well as the stop and arrest of respondents Gargia and Barrera-Saenz when, moments later, they were observed in an unlighted pickup truck leaving the same pasture from which Mungia had emerged (Tr. 85-87; see also Tr. 223-225). The fact that the game wardens lacked authority under Texas law to take these actions did not implicate respondents' Fourth Amendment rights because the Fourth Amendment simply does not address the question of which government officers may make a search or seize in a particular situation; instead, the Fourth Amendment requires only that the governmental intrusion be supported by reasonable suspicion or probable cause depending on its nature. /11/ c. This distinction, for exclusionary rule purposes, between constitutional and nonconstitutional error has been widely recognized by the federal courts of appeals in the context of cases arising out of violations of Fed. R. Crim. P. 41, governing the issuance and execution of search warrants. These cases hold that, as a general principle, a violation of the requirements of Rule 41 does not warrant suppression of evidence unless the violation renders the search unconstitutional under traditional Fourth Amendment standards. See, e.g., United States v. Harrington, 681 F.2d 612, 615 (9th Cir. 1982); United States v. Vasser, 648 F.2d 507, 510 (9th Cir. 1980), cert. denied, 450 U.S. 928 (1981); United States v. Pennington, 635 F.2d 1387, 1390 (10th Cir. 1980), cert. denied, 451 U.S. 938 (1981); United States v. Gitcho, 601 F.2d 369, 372 (8th Cir. 1979); United States v. Dudek, 530 F.2d 684, 689 (6th Cir. 1976); United States v. Burke, 517 F.2d 377, 386 (2d Cir. 1975). /12/ As the court stated in United States v. Burke, supra, 517 F.2d at 386, quoting United States v. Dunnings, 425 F.2d 836, 840 (2d Cir. 1969), cert. denied, 397 U.S. 1002 (1970), the exclusionary rule is "'a blunt instrument, conferring an altogether disproportionate reward not so much in the interest of the defendant as in that of society at large.' For that reason courts should be wary in extending the exclusionary rule * * * to violations which are not of constitutional magnitude." /13/ d. The court of appeals felt bound to follow this Court's decision in United States v. Di Re, 332 U.S. 581, 589 (1948), in which the Court held that in the absence of a controlling federal statute, the validity of a warrantless arrest is to be determined according to the law of the state in which the arrest took place. See also United States v. Watson, 423 U.S. 411, 420 n.8 (1976); Ker v. California, 374 U.S. 23, 37 (1963); Miller v. United States, 357 U.S. 301 (1958); Johnson v. United States, 333 U.S. 10, 15 n.5 (1948). Apart from the question of Di Re's continuing validity, /14/ we note that the state statute in that case was significantly different from the one involved here. The requirement that warrantless misdemeanor arrests be made only for offenses committed in the presence of the arresting officer (332 U.S. at 591), while not constitutionally mandated, clearly implicates substantial individual liberty interests; the Texas statutory provisions circumscribing the arrest powers of game wardens do not. /15/ In our view, it is clearly inappropriate for a federal court to order suppression to enforce a state statutory provision that does not implicate constitutional rights or protect substantial individual privacy or liberty interests. There is no compelling federal interest in enforcement of the Texas provisions governing the arrest powers of game wardens sufficient to justify suppression of the highly probative evidence seized here and the consequent reversal of respondents' criminal convictions. It is true that in rejecting the "silver platter" doctrine in Elkins this Court relied in part on the frustration of state policy that would result if federal courts admitted evidence that would not have been admissible in a state court (364 U.S. at 221-222). But the Court in Elkins clearly had in mind state search and seizure rules of constitutional magnitude that were congruent with federal standards (ibid.), and neither the policy nor the logic of that decision extends to cases involving technical, nonconstitutional state requirements that have no counterpart in federal law. Here, by their observable conduct, respondents rendered themselves subject to stop, and eventually arrest, by any duly authorized state or federal official. It was wholly fortuitous, and wholly immaterial in terms of their expectations of freedom from official intrusion, that the particular officers who observed them lacked full police powers. The only law that was violated by the officers was one intended to allocate governmental powers among various officials, rather than one intended to protect the rights of citizens engaging in suspicious behavior. Accordingly, the court's invocation of the exclusionary rule was erroneous. 2. Even assuming that the exclusionary rule may sometimes be invoked for violation of a state law that does not embody constitutional requirements, the rule should not have been applied in this case. At the time of the events in question, the Texas courts had not settled the scope of a game warden's arrest powers. At the suppression hearing, Officer Huff consistently testified that he was a certified peace officer (Tr. 60, 132-133, 150-151, 197), who, under article 14.03 of the Texas Criminal Procedure Code Annotated, would be authorized to make warrantless arrests on probable cause. Moreover, the government offered as a witness the regional director of law enforcement of the Texas Department of Parks and Wildlife; this witness would have testified that game wardens have the full powers of peace officers under Texas law. But the district court ruled that this witness's testimony was unnecessary because the court's own examination of the relevant Texas statutes had convinced it that game wardens had general arrest powers (Tr. 157-159). And, as previously noted, a panel of the Texas Court of Criminal Appeals subsequently reached the same conclusion. Christopher v. State, supra, 639 S.W.2d at 934-935. That a panel of the Fifth Circuit and the Texas Court of Criminal Appeals sitting en banc later reached a different conclusion in no way detracts from the fact that at all relevant times Officer Huff (as well as his superior or the Texas Department of Parks and Wildlife) reasonably believed that he had all the powers of a Texas peace officer. Accordingly, the "good-faith" or "reasonable mistake" exception to the exclusionary rule adopted by the Fifth Circuit in United States v. Williams, 622 F.2d 830, 840-847 (1980) (en banc), cert. denied, 449 U.S. 1127 (1981), should have been applied here. The similarity between this case and Williams is striking. In Williams, a federal agent who had previously arrested Williams in Ohio for a narcotics violation encountered her in another state. The agent knew that a condition of Williams' release on bond pending appeal was that she remain in Ohio. Accordingly, the agent arrested Williams for violation this condition and, in ensuing searches incident to the arrest, seized heroin from Williams' possession. Sitting en banc, the Fifth Circuit held unanimously that the district court should not have suppressed the heroin. One majority of the court held that the federal agent had legal authority to arrest Williams because, by violating a condition of her bail release, she had committed the crime of contempt of court in the agent's presence (622 F.2d at 836-839). A different, overlapping majority of the court held that, irrespective of the validity of Williams' arrest, the heroin should not have been suppressed because the agent had acted in good faith in arresting and searching Williams and could not reasonably be expected to have known that there was any serious doubt concerning his authority to make the arrest. Because the purpose of the exclusionary rule is to deter "willful or flagrant actions by police, not reasonable, good-faith ones" (622 F.2d at 840), the court concluded that it made no sense to suppress evidence in these circumstances. Here, too, there can be no doubt that Officer Huff acted reasonably, as evidenced by the fact that the district court and a panel of the Texas Court of Criminal Appeals upheld the general arrest powers of game wardens. Under these circumstances, application of the exclusionary rule is wholly unjustified. This issue is similar to that presently under advisement following the reargument in Illinois v. Gates, No. 81-430 (reargued Mar. 1, 1983). If the Court reaches and decides the exclusionary rule issue in Gates, however, its decision will not necessarily control the disposition of this case, because Gates involves the special situation presented by a search conducted pursuant to a warrant. It thus seems entirely possible that this case will afford a suitable vehicle to consider important issues that may remain unsettled after Gates. /16/ 3. Finally, the court of appeals seriously erred in looking to state law to determine the applicability of the exclusionary rule. Even accepting the propriety of analyzing the legality of the arrests under state law (see pages 17-18 note 14, supra), the court of appeals cited no authority, and we know of none, for the proposition that state rules of evidence govern federal criminal prosecutions. On the contrary, federal courts are bound to apply the Federal Rules of Evidence in proceedings before them. See Fed. R. Evid. 1101. Thus, Rule 402 of the Federal Rules of Evidence, rather than the evidentiary rules of the State of Texas, governs this proceeding. /17/ Rule 402 provides for the admission of all relevant evidence, "except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority." None of the exceptions is applicable here; neither the federal Constitution nor any federal statute or rule calls for the exclusion of evidence obtained in violation of a purely technical state law. Contrary to the court of appeals' assertion (App. A, infra, 17a), application of a "reasonable mistake" exception to the exclusionary rule in this case would not have the effect of "engraft(ing) a 'good faith' exception onto Texas jurisprudence." The courts of Texas remain free to admit or exclude evidence in their own proceedings as they see fit, but the rules of procedure utilized in federal criminal trials should in no way depend on the idiosyncracies of state law. This is clear from the Senate Report accompanying the adoption of the Federal Rules of Evidence. The report (S. Rep. No. 93-1277, 93d Cong., 2d Sess. 8 (1974)) observed: (T)here is a real need for a comprehensive code of evidence intended to govern the admissibility of proof in all trials before the Federal courts because of the lack of uniformity and clarity in the present law of evidence on the Federal level. The unprecedented approach taken by the court of appeals in this case is thus flatly inconsistent with Congress' purpose in enacting the Federal Rules of Evidence. /18/ CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General D. LOWELL JENSEN Assistant Attorney General ANDREW L. FREY Deputy Solicitor General KATHRYN A. OBERLY Assistant to the Solicitor General JOEL M. GERSHOWITZ Attorney MARCH 1983 /1/ Respondents Garcia and Barrera-Saenz were acquitted on the substantive offense, while respondent Mungia was acquitted on the conspiracy count. A fourth co-defendant, Jose Angel Garza-Soliz, fled the scene of the arrest and has not been apprehended. /2/ "Tr." refers to the consecutively-paginated transcript of the suppression hearing and trial contained in Volumes II-VIII of the record on appeal. /3/ Indeed, later during the night of the events in question, Officer Huff had to help pull a Customs Patrol Officer's vehicle out of a ditch on the same road (Tr. 140). /4/ A chemist from the Drug Enforcement Administration testified that after this amount was cleaned of seeds and stems, it still would yield 1.8 million cigarettes at two cigarettes per gram (Tr. 802-803). /5/ Because it rested its judgment on the conclusion that the arrests exceeded the officers' authority under state law, the court of appeals did not review the district court's determination (App. D, infra, 20a-22a) that the arrests were supported by probable cause (App. A, infra, 17a n.27). The court also declined to review the challenge to the sufficiency of the evidence mounted by respondents Garcia and Barrera-Saenz (ibid.). /6/ In Christopher, the defendant was stopped by a game warden who had observed him driving in excess of the speed limit. As the warden approached the vehicle, he smelled marijuana. Marijuana was later found in defendant's vehicle, and he was convicted of possession of that drug (639 S.W.2d at 933-934). /7/ On January 11, 1983, the government moved for dismissal of the indictment against respondents, and that motion was granted by the district court on January 12, 1983. For the reasons set forth in our supplemental brief in United States v. Villamonte-Marquez, No. 81-1350 (filed Mar. 15, 1983), we do not believe this action affects this Court's jurisdiction. We are furnishing respondents' counsel a copy of our supplemental brief in Villamonte-Marquez. /8/ One of the many anomalies in the court of appeals' decision is its strict focus on the legality of the arrests in this case when, in fact, the arrests were completely irrelevant to the seizure of the marijuana evidence. As we have set forth above (see pages 3-4, supra), Officer Huff searched the tanker driven by respondent Mungia before making the arrest; in the case of the other respondents, no search was required because marijuana residue was in plain view in the bed of their pickup truck. For purposes of this case, however, we may assume that if Officer Huff lacked authority under state law to make arrests outside of state parks for non-game law violations, he likewise lacked authority under state law to stop vehicles outside of state parks on suspicion of such violations. Accordingly, we presume that the court of appeals would have reached the same result had it focused on the stop of the tanker truck, which was the critical event in this case. Nevertheless, it is important to point out that this Court has never ruled on the question whether state or federal law governs the validity of investigative stops. Although the Court has held that searches are tested by federal law (Elkins v. United States, 364 U.S. 206, 217 (1960)), and that warrantless arrests are tested by state law in the absence of a controlling federal statute (United States v. Di Re, 332 U.S. 581, 589 (1948)), an investigative stop does not clearly fall within either category. An investigative stop may lead to a search (and hence the Elkins line of cases), or to an arrest (and hence the Di Re line of cases), or, as in the present case, to both a search and an arrest (and hence an uncertain result). In our view, the facts of this case point out the need for a uniform federal rule in all circumstances (see pages 17-18 note 14, infra). In any event, it is worth noting that no illegal arrests occurred in this case, even under state law. By the time Officer Huff arrested respondent Mungia, he could have made a lawful citizen's arrest under article 14.01(a) of the Texas Criminal Procedure Code Annotated because he knew that a felony (possession of marijuana) was being committed in his presence. His knowledge came from his search of the tanker, the validity of which turns on federal law (Elkins, supra). Similarly, it appears that Huff, even acting as a game warden, could have arrested Garcia, Barrera-Saenz and Garza-Soliz for a traffic violation (see Christopher v. State, supra) because he observed their pickup truck driving on a public highway at night without any lights. Alternatively, Huff could have made a legitimate citizen's arrest because he observed marijuana residue in plain view in the bed of the pickup truck. These points, which the government did not assert below and which are not independently worthy of this Court's review, are noted here only to demonstrate the incongruous result reached by the court of appeals. /9/ We note preliminarily that the court of appeals did not hold that any arrest that violates state law is itself a violation of the Fourth Amendment; on the contrary, the court expressly disavowed making any constitutional ruling (App. A, infra, 5a n.6). This is in accord with the views expressed by Professor LaFave (1 W. LaFave, Search and Seizure, A Treatise on the Fourth Amendment Section 1.3, at 51-52 (1978), quoting Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L.J. 319, 328): (U)nquestionably there is no constitutional requirement that evidence obtained in another jurisdiction be suppressed merely because the process of acquisition offended some local law. The argument that 'local rules * * * will have constitutional sanction, for whatever action is illegal is perforce unreasonable,' has not prevailed. /10/ We recognize, of course, that Congress may provide for the suppression of evidence even when there has been no constitutional violation. See, e.g., 18 U.S.C. 2515 (fruits of unlawful wiretap not admissible). But there is no federal statute or rule relevant to this case, and thus the focus must be on constitutional considerations. /11/ Compare United States v. Soto-Soto, 598 F.2d 545 (9th Cir. 1979), in which the court of appeals held that an FBI agent's lack of statutory authority to conduct border searches rendered the search in question subject to normal Fourth Amendment standards rather than the special rules applicable to border searches; the court then ordered suppression of the evidence because the agent had neither reasonable suspicion nor probable cause for the stop and search in question. In a subsequent case, the Ninth Circuit made it clear that the evidence in Soto-Soto was suppressed not merely because the agent acted in excess of his statutory authority but because the search was found to have been unconstitutional. United States v. Harrington, 681 F.2d 612, 615 (1982). See also United States v. Vasser, 648 F.2d 507, 511 n.3 (9th Cir. 1980), cert. denied, 450 U.S. 928 (1981); United States v. Johnson, 641 F.2d 652, 659 n.5 (9th Cir. 1980). /12/ These cases acknowledge an exception to this general rule only in the rare instance in which the defendant is prejudiced by the nonconstitutional violation or the violation is committed in deliberate disregard of Rule 41, Fed. R. Crim. P. Such an exception could not possibly apply here. Respondents were not prejudiced simply because they were stopped by one type of state officer instead of another. As we have shown, the officers' conduct fully comported with constitutional requirements. Nor is there any suggestion in this case of intentional misconduct on the part of the game wardens. Officer Huff repeatedly testified that he believed that he was a certified peace officer under Texas law (Tr. 60, 132-133, 150-151, 197), and this belief, as we will presently show (see pages 19-21, infra), was entirely reasonable at the time of the events in question. /13/ The distinction, for purposes of the exclusionary rule, between "unconstitutional" actions and "illegal" actions is implicit in Elkins v. United States, supra, 364 U.S. at 224, and was expressly recognized by Justice Frankfurter in his dissent in that case, in which he objected strenuously to the majority's distinction between the "'unconstitutionality' of police conduct, as distinguished from its mere illegality under state or federal law" (id. at 243). /14/ The Court has never explained the dichotomy between Elkins v. United States, supra, which holds that the validity of searches and seizures is to be tested by federal law, "neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed" (364 U.S. at 224), and United States v. Di Re, supra, which holds that, absent a controlling federal statute, the validity of a warrantless arrest is determined according to the law of the state in which the arrest occurred (332 U.S. at 589). In Di Re, the Court relied in part on the absence of "any general federal law of arrest" (id. at 590). But there is likewise no general federal law of search and seizure except that which this Court has created. Reasoning from cases such as Terry v. Ohio, 392 U.S. 1 (1968), at least one court has concluded that this Court has, subsequent to Di Re, effectively created general federal law governing arrests and that Elkins implicitly overruled Di Re. United States v. Miller, 452 F.2d 731, 733 (10th Cir. 1971), cert. denied, 407 U.S. 926 (1972); United States v. Alberty, 448 F.2d 706 (10th Cir. 1971). The view that federal law governs the validity of state arrests for purposes of federal trials has recently been endorsed by the Sixth Circuit. United States v. Porter, No. 81-5617 (Mar. 10, 1983), slip op. 13. In any event, it is apparent from cases such as the instant one that the Di Re rule produces anomalous results. There is no logic to the proposition that the outcome of a federal criminal prosecution should turn on technical idiosyncracies peculiar to the state in which the law enforcement activity occurred. It thus might be appropriate for the Court to reconsider Di Re and its progeny. Such reconsideration is not essential in this case, however, because, as we demonstrate in text, even Di Re cannot support the result reached by the court of appeals. /15/ The same distinction is apparent in other cases following Di Re. See, e.g., Ker v. California, supra, 374 U.S. at 37-38 (state "knock-and-announce" rule); Miller v. United States, supra, 357 U.S. at 306 (same); Johnson v. United States, 333 U.S. at 15 & n.5 (state rule permitting warrantless felony arrests only upon "reasonable cause" to believe the defendant guilty). /16/ We have presented our arguments in support of a "reasonable mistake" exception to the exclusionary rule in Gates and need not repeat them here. We are furnishing respondents' counsel with copies of our brief in Gates (Supplemental Brief for the United States as Amicus Curiae Supporting Reversal (filed Jan. 13, 1983)), in which those arguments are set forth. /17/ Texas' exclusionary rule (Texas Criminal Procedure Code Ann. art. 38.23 (Vernon 1979)) is contained in the chapter of the Code entitled "Evidence of Criminal Actions." Thus, Texas' exclusionary rule is as much a rule of evidence as is the federal exclusionary rule developed by this Court. /18/ Prior to the adoption of Rule 402, this Court had held that its supervisory power over the administration of justice in the federal courts enabled it to fashion rules governing the admissibility of evidence in federal criminal trials, whether or not such rules were constitutionally required. McNabb v. United States, 318 U.S. 332, 341 (1943). But it is doubtful whether the McNabb rule survived the passage of the Federal Rules of Evidence. In enacting those rules, Congress specifically addressed the question of this Court's authority to make amendments; in discussing Rule 402, the House Report explained (H.R. Rep. No. 93-650, 93d Cong., 1st Sess. 7 (1973)): Rule 402 as submitted to the Congress contained the phrase "or by other rules adopted by the Supreme Court". To accommodate the view that the Congress should not appear to acquiesce in the Court's judgment that it has authority under the existing Rules Enabling Acts to promulgate Rules of Evidence, the Committee amended the above phrase to read "or by other rules prescribed by the Supreme Court pursuant to statutory authority" in this and other Rules where the reference appears. At the same time, Congress enacted 28 U.S.C. 2076, which increased the role of Congress in the evidence rulemaking process. See H.R. Rep. No. 93-650, supra, at 18. Thus, we believe that the "supervisory power" relied on in McNabb no longer furnishes sufficient authority for a federal court to modify Rule 402's requirement that all relevant evidence be admitted, subject only to the listed exceptions. Because the "evidentiary rule" adopted by the Fifth Circuit in this case does not fit within Rule 402's exceptions, it could be enforced only if enacted in conformity with the procedures established in 28 U.S.C. 2076. In any event, this case is clearly an inappropriate vehicle for the exercise of a federal court's "supervisory power" to order suppression. The law enforcement techniques condemned in McNabb, supra, 318 U.S. at 334-342, included interrogating the defendants, all of whom were poorly-educated and without counsel, for several days without ever bringing them before a magistrate or judge, as required by statute. No such questionable practices occurred in the instant case. Appendix Omitted