Timothy T. Hampton v. GARY L. WYANT , Warden, East Moline Correctional Center

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1296
T IMOTHY T. H AMPTON ,
Petitioner-Appellee,
v.
G ARY L. W YANT , Warden, East Moline Correctional Center,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 3058—Robert W. Gettleman, Judge.
____________
A RGUED J UNE 4, 2002—D ECIDED J ULY 9, 2002
____________
Before C OFFEY , E ASTERBROOK , and W ILLIAMS , Circuit
Judges.
E ASTERBROOK , Circuit Judge. Timothy Hampton, a mem-
ber of Chicago’s police force, came to the attention of the
police in Maywood, Illinois, when he reported to them that
someone had robbed his brother Marlan Price, and then
started frisking locals as if a Chicago badge carried author-
ity in Maywood as well. Maywood’s officers interrogated
some suspects that Hampton and Price identified. While
one officer was locking up the building where the robbery
supposedly occurred, another noticed Price emerging from
a car and attempting to reenter the premises. Suspicions

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2 No. 02-1296
raised by this maneuver—and concerned that there were
too many people moving about—this officer noticed that
Price had come from a darkened car containing someone
else. It was 11 p.m. and the officer could not see inside the
car. He asked the car’s other occupant to get out. That
turned out to be Hampton, and when the officer pointed his
flashlight into the vacated passenger compartment he saw
a gun—Hampton was entitled to carry a weapon even off
duty—and four packages of cocaine. (There is a dispute
about whether the Maywood officer saw the cocaine from
outside the car or only after entering it to retrieve the gun,
but the resolution does not matter for current purposes.)
Hampton tried to persuade the Maywood police that he had
been carrying the drugs as part of his job, but they wanted
more than Hampton’s word—and he was unable to provide
more, because he was not an undercover drug officer. Later
Hampton confessed that the claim of robbery had been man-
ufactured as part of an effort to help Stanley Polk, a drug
dealer whose car Hampton had been driving. Polk appar-
ently wanted Maywood’s police to arrest Fernando Casas
on the trumped-up charge; Polk’s reason is unclear, though
Hampton confessed that he knew that the transaction in-
volved cocaine in some way. His defense at trial was that
the drugs were Polk’s and that he had not expected them to
be in Polk’s car.
A state court convicted Hampton of possessing cocaine
with intent to deliver, he was sentenced to 15 years’ impris-
onment, and the appellate court affirmed, rejecting his
contention that the order to get out of the car violated the
Constitution’s fourth amendment. People v. Hampton,
307 Ill. App. 3d 464, 718 N.E.2d 591 (1st Dist. 1999). But
Hampton found a more favorable audience in the federal
district court, hearing his petition for a writ of habeas
corpus under 28 U.S.C. §2254. The judge recognized that
the state’s appellate court had given extended attention to
Hampton’s request to suppress the drugs seized from the

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No. 02-1296 3
car, analyzing not only Terry v. Ohio, 392 U.S. 1 (1968), and
its successors but also scouring the ALI’s Model Code of Pre-
Arraignment Procedure (1975), and Professor LaFave’s trea-
tise (Search and Seizure (3d ed. 1996)), for assistance. The
federal court did not suspect the state judges of misstating
the facts or supplying superficial legal analysis. Nonethe-
less, the judge wrote, “[u]pon close examination, the court
concludes that the cases, statute and treatise cited by the
Hampton court in reaching its decision do not support that
ruling. Moreover, constitutional precedent that was omitted
by the Hampton court directly contradicts its holding. Thus,
the court grants petitioner’s application for a writ of habeas
corpus.” Hampton v. Fews, 187 F. Supp. 2d 981, 986-87
(N.D. Ill. 2002).
The State of Illinois does not contest the district judge’s
conclusion that the Maywood police violated the fourth
amendment by directing Hampton to get out of Polk’s car.
The appeal instead challenges the “thus” in the passage we
have quoted: the district judge’s belief that Hampton is en-
titled to collateral relief because an improper seizure oc-
curred. What Hampton needs in order to prevail on a col-
lateral attack is not simply a holding that the directive was
invalid, but a conclusion that this error requires application
of the exclusionary rule. And Stone v. Powell, 428 U.S. 465
(1976), holds that, although both state and federal courts
must apply the exclusionary rule at trial and on direct ap-
peal, it is inappropriate to use the exclusionary rule as the
basis of collateral relief because it would not appreciably
augment the deterrence of improper police conduct. The
Court explained, 428 U.S. at 493-95 (footnotes omitted):
[T]he additional contribution, if any, of the consid-
eration of search-and-seizure claims of state prison-
ers on collateral review is small in relation to the
costs. To be sure, each case in which such claim is
considered may add marginally to an awareness of
the values protected by the Fourth Amendment.

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4 No. 02-1296
There is no reason to believe, however, that the
overall educative effect of the exclusionary rule
would be appreciably diminished if search-and-sei-
zure claims could not be raised in federal habeas
corpus review of state convictions. Nor is there rea-
son to assume that any specific disincentive already
created by the risk of exclusion of evidence at trial
or the reversal of convictions on direct review would
be enhanced if there were the further risk that a
conviction obtained in state court and affirmed on
direct review might be overturned in collateral pro-
ceedings often occurring years after the incarcera-
tion of the defendant. The view that the deterrence
of Fourth Amendment violations would be furthered
rests on the dubious assumption that law enforce-
ment authorities would fear that federal habeas
review might reveal flaws in a search or seizure
that went undetected at trial and on appeal. Even
if one rationally could assume that some additional
incremental deterrent effect would be present in
isolated cases, the resulting advance of the legiti-
mate goal of furthering Fourth Amendment rights
would be outweighed by the acknowledged costs to
other values vital to a rational system of criminal
justice.
. . .
In sum, we conclude that where the State has pro-
vided an opportunity for full and fair litigation of
a Fourth Amendment claim, a state prisoner may
not be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitu-
tional search or seizure was introduced at his trial.
In this context the contribution of the exclusion-
ary rule, if any, to the effectuation of the Fourth
Amendment is minimal and the substantial societal

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No. 02-1296 5
costs of application of the rule persist with special
force.
It is therefore not possible to move from a conclusion that
seizure of evidence violated the fourth amendment to a
holding that a writ of habeas corpus must issue. The exclu-
sionary rule is not enforced on collateral attack. Put other-
wise, a person imprisoned following a trial that relies, in
part, on unlawfully seized evidence is not “in custody in vio-
lation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. §2254(a). The seizure may have violated
the Constitution, but the custody does not, because the
exclusionary rule is a social device for deterring official
wrongdoing, not a personal right of defendants. See also
Reed v. Farley, 512 U.S. 339, 347-48 (1994) (emphasizing
that Stone recognizes limitations on use of the exclusionary
remedy) (plurality opinion). This also means, by the way,
that the Antiterrorism and Effective Death Penalty Act
does not affect Stone. The AEDPA ’s changes to §2254(d) ap-
ply only to cases within the scope of §2254(a), which was
not amended in 1996, and Stone is based on an interpreta-
tion of §2254(a) that treats inaccurate administration of the
exclusionary rule as outside the scope of that statute.
What Stone requires is that states provide full and fair
hearings so that the exclusionary rule may be enforced with
reasonable (though not perfect) accuracy at trial and on
direct appeal. A competent and intellectually honest judicial
system is a personal right of the accused, and a system that
acts with reasonable accuracy is essential to deterrence.
Aware of Stone, the district judge in this case suggested
that the appellate court’s error shows that Hampton had
not received a full and fair opportunity for litigation. That
approach, however, nullifies the holding of Stone and leads
to collateral relief whenever the search violates the fourth
amendment. It cannot be right, for then Stone was itself
wrongly decided. Stone resolved two consolidated cases. In
one the ninth circuit had held a particular search unconsti-

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6 No. 02-1296
tutional because the statute under which it had been con-
ducted was unconstitutional. In the other the eighth circuit
had held that the warrant supporting a search was invalid
because of deficiencies in the affidavits, and that a war-
rantless entry was unconstitutional because the police
lacked probable cause. In all of these respects the federal
tribunals disagreed with contrary holdings of the state
courts. Stone reversed both the eighth and the ninth cir-
cuits, not because the Justices thought that the state courts
had handled the fourth amendment issues correctly, but
because error on a fourth amendment issue does not sup-
port a writ of habeas corpus. So if all that occurred in
Hampton’s case is error, then here too there is no justifica-
tion for federal collateral relief.
Illinois contends that, having reached this conclusion, we
should overrule (or at least modify) a series of opinions that
have made the existence of error part of the inquiry into full
and fair adjudication. See, e.g., Terry v. Martin, 120 F.3d
661, 663 (7th Cir. 1997); Turentine v. Miller, 80 F.3d 222,
224 (7th Cir. 1996); Weber v. Murphy, 15 F.3d 691, 694 (7th
Cir. 1994); Pearson v. O’Leary, 959 F.2d 1385, 1391 (7th Cir.
1992). We wrote in Pearson, and have repeated since, that
an accused receives a full and fair opportunity to litigate if
(1) he has clearly informed the state court of the
factual basis for that claim and has argued that
those facts constitute a violation of his fourth
amendment rights and (2) the state court has care-
fully and thoroughly analyzed the facts and (3) ap-
plied the proper constitutional case law to the facts.
Illinois wonders how the third of these considerations
can be appropriate, given the way Stone itself handled a
claim of error. The state’s concern supposes, however, that
Pearson required the state to decide the issue correctly. But
this is not what we meant. What a state has to do is look to
the appropriate body of decisional law. Faced with a claim
that the police lacked probable cause to make an arrest, a

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No. 02-1296 7
state court could not respond that in Illinois it is proper to
arrest without probable cause. Failure to apply applicable
law would show that the accused lacked a full opportunity
to prevail on direct appeal. A court that has made up its
mind not to enforce the fourth amendment rarely says so
directly, though it may leave clues in its treatment of the
merits. It is impossible to see how the problem could be
identified without paying some attention to how the state
court dealt with the merits. But as we said in Turentine this
must not be confused with a search for error. It takes an
“egregious error” (80 F.3d at 226) to imply that the state
judges have closed their ears and minds to argument—and
it is the latter circumstance, not the error itself, that would
justify relief under Stone. Even an “egregious error” thus is
not enough to support a writ of habeas corpus (that’s what
it means to say that the exclusionary rule does not apply
on collateral attack); a blunder, no matter how obvious,
matters only in conjunction with other circumstances that
imply refusal by the state judiciary to take seriously its
obligation to adjudicate claims under the fourth amend-
ment.
So was there any reason to suppose that in Hampton’s
case the state’s judges had their minds closed and were in-
sensible to arguments based on the facts or the Supreme
Court’s decisions? Hampton concedes that he had (and
used) an unfettered opportunity to develop the facts and
present his legal arguments. He concedes that the state tri-
al and appellate judges fairly summarized the facts. The
district judge upbraided the state court for not citing Brown
v. Texas, 443 U.S. 47 (1979), a decision that in the district
judge’s view demonstrates the search’s unconstitutionality,
and it took the omission as a sign that the state judges had
not been paying attention to Hampton’s argument or were
wilfully blind to applicable law. Problem: Hampton had not
cited Brown in his own appellate briefs. It is awfully hard
to accuse any court of depriving a litigant of full and fair
consideration, when its only sin is failing to find, through

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8 No. 02-1296
independent research, an opinion that neither side cited in
the briefs! So too with the district judge’s conclusion that
the state tribunal relied on the wrong section of LaFave’s
treatise. None of the appellate briefs had cited LaFave’s
work or the Model Code of Pre-Arraignment Procedure. That
the judges did some research beyond the boundaries set by
the briefs shows industry rather than the sort of indolence
that might deprive the parties of a fair hearing. And if, as
the district judge concluded, this independent research was
faulty, that’s the sort of error that Stone puts off limits as
the basis of collateral relief. Debate about which section of
a legal treatise is the right point of departure is sport for
judges, but it holds out no prospect of deterrence through
application of the exclusionary rule. What message would
be sent to the Maywood police by a writ of habeas corpus so
long after March 1996, when they ordered Hampton to get
out of Polk’s car? It is hard to see how it could improve com-
pliance with the fourth amendment.
At oral argument Hampton’s counsel (not the lawyer who
represented him in state court) explained that his predeces-
sor had not cited Brown because it became relevant only in
light of a novel approach taken by the state judges. The
court’s rationale, counsel contended, was the result of inde-
pendent research that went wrong, and according to coun-
sel the court’s very act of striking out on its own deprived
Hampton of a full and fair opportunity to litigate. This
would make a virtue of mechanical jurisprudence: a court
that trudged through the briefs would be safe under Stone’s
umbrella, but a court that thought the briefs inadequate
and tried to think independently would invite federal inter-
vention to correct any error. That can’t be right. As we dis-
cussed above, it is the sleepwalking judge, not the diligent
one, who deprives the litigant of the personal right to care-
ful, individual consideration.
Any time a judge does independent research there is a
risk of error, but judges with some initiative probably err at

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No. 02-1296 9
lower rates than judges who naively believe that the briefs
cover everything worth considering. Courts frequently de-
cide cases on lines of reasoning that can’t be found in the
briefs. There is no federal entitlement to have a case de-
cided strictly on the basis of precedent cited to the tribunal.
See Elder v. Holloway, 510 U.S. 510 (1994). If there were,
Hampton would be among the losers—for the Supreme
Court extended the exclusionary rule to the states in Mapp
v. Ohio, 367 U.S. 643 (1961), a case in which that possibility
was raised by the Justices themselves, not by Mapp. Can
Hampton really mean that by injecting a new legal issue
the Justices deprived Ohio of a full and fair opportunity to
litigate? The Supreme Court is the end of the line, so maybe
Ohio did have a beef—more so than Hampton, who still had
three arrows in his quiver after the appellate court’s deci-
sion. He filed a petition for rehearing, sought leave to
appeal in the Supreme Court of Illinois, and was entitled to
file a petition for certiorari in the Supreme Court of the
United States. These afforded ample opportunities to point
out any errors in the appellate court’s independent re-
search.
Nothing in the record of this case, or the arguments made
to us, suggests that Illinois declines to take seriously (in the
run of cases, or in Hampton’s) its task of enforcing the ex-
clusionary rule on direct appeal. Consequently there is no
need to try for some supplemental deterrence by issuing a
writ of habeas corpus. As in Stone itself, all we have is a
claim of error—and that is not enough to support collateral
relief based on the exclusionary rule.
R EVERSED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-9-02

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