ABEL v. UNITED STATES

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Argument of James B. Donovan

Chief Justice Earl Warren: Number 263, Rudolf Ivanovich Abel, also known as "Mark" and also known as Martin Collins, Petitioner, versus United States of America.

Mr. Donovan, you may proceed.

Mr. James B. Donovan: Mr. Chief Justice, may it please the Court.

This case is before the Court on a writ of certiorari to the United States Court of Appeals for the Second Circuit.

The writ was granted by this Court with respect to two specific questions which are, (1) whether the Fourth Amendment to the Constitution is violated by a search and a the seizure of evidence without a search warrant, after an alien suspected and officially accused of espionage has been taken into custody for deportation pursuant to an Administrative Immigration Service warrant, but has not been arrested for the commission of a crime.

And (2), whether the Fourth and Fifth Amendments are violated when articles so seized are unrelated to the deportation warrant and together with other articles obtained from such leads, are introduced as evidence in a prosecution for espionage.

The petitioner, Abel, was indicted on August 7th, 1957 on a three-count indictment in the Eastern District of New York, charging, in summary, the capital crime of conspiring to commit espionage on behalf of Soviet Russia.

Abel is a Russian national.

After a jury trial, he was convicted and sentenced to thirty years in prison, a term that he's now serving in the federal prison in Atlanta.

The conviction, thereafter, was unanimously affirmed by the Second Circuit Court of Appeals.

It will be my contention today that the Fourth and the Fifth Amendments were violated in this case under the circumstances which are set forth by the introduction in -- to evidence, in this case, of various materials that had been seized pursuant to this administrative immigration warrant and unsupported by any search warrant or normal warrant of arrest.

The facts in this case are substantially undisputed although there are disputes with respect to the conclusions, both legal and factual, which that should be drawn from those and their various inferences.

In early May 1957, one, Reino Hayhanen, entered the American Embassy in Paris and stated that since 1952, he had been serving as a Lieutenant Colonel in Russian secret intelligence in the United States performing espionage duties.

He told about the fact that in the United States, he reported to, as the so-called, "resident agent," a man named, "Mark," whom he did not further identified, but who he stated was a Colonel in Russian military intelligence.

He also stated that this man, while living about in the various cheap hotels in New York City, maintained an art studio in Brooklyn which was employed as a cover.

Hayhanen was returned to the United States and his story was promptly and very thoroughly investigated.

He took the F.B.I. to his home in Peekskill, New York, where various materials, all tending to connect him with espionage and to give credence to his story were uncovered.

He furthermore, with respect to his statements concerning, Mark, subsequently identified as the petitioner here, Abel, the F.B.I. at the same time they were investigating for corroboration of Hayhanen's story, they also began to shadow Abel.

They watched the studio.

They found out that there was such a man.

That he did maintain an art studio and that meanwhile he was not living there.

Annexed to our brief, as Appendix B, the Court will find a compilation of all of the various materials that were in the possession of the Department of Justice and could constitute evidence of espionage prior to the detention for deportation of Abel which occurred on June 21st.

It accordingly, would be our contention and not simply that there was probable cause prior to this apprehension I'll describe, not simply that there was probable cause to believe that -- that the man occupying the art studio and as it turned out also room 839 in the Hotel Latham, had committed espionage, but the evidence was rather clear and convincing unless controverted.

This, of course, is important in our judgment because of the fact that it is germane to the issue here, that such probable cause to believe that this man had committed the capital crime of espionage did exist.

In fact, if the Court would turn to the affidavit that was submitted by government attorney, Maroney, in the District Court, the Court will find that -- that he very well summarizes this matter.

It's on page 57 of the joint appendix, and it will show that the conclusion reached by the Department of Justice at that time, the Internal Security Division, was that because Hayhanen said, he, while he would tell the story, must refuse to testify publicly for fear of implicating his family in Russia, that they believe that they could not successfully prosecute for espionage at that time, lacking the testimony of Hayhanen in open court.

Justice John M. Harlan: (Inaudible)

Mr. James B. Donovan: Not necessarily, Your Honor, in that kind of detail.

Furthermore, as, Your Honor, knows these warrants can be sealed and indeed, one was in this case, so that for a -- a period of time this -- this could be kept confidential.

But this is not set forth either in the District Court or in the Government's brief in this Court as determined to the question.

Mr. Maroney explains that they believe that because he wouldn't testify that they would not be able to successfully prosecute.

Now, under the Brinegar case, and the very recent Draper case, unreported before the Court, we say that this question is quite irrelevant with respect to whether or not there was probable cause to obtain a search warrant, that there's just no question, but that we believe such a search warrant could have been obtained on affidavits by the F.B.I. agents as to what they had been informed and corroborated by this massive evidence which is set forth in -- in Exhibit B to our brief.

Now --

Justice Felix Frankfurter: Do I understand you, Mr. Donovan now before sealing in this warrant, do I understand you that if warrants are sworn out and granted, those personal research, misrepresentations maybe made to the district judge or the commissioner, that in the interest -- in public interest, the warrant should be kept under seal, but that those warrants so kept under seal would be legal warrants for the action taken by the enforcing officer, is that what you mean?

Mr. James B. Donovan: Your Honor, the Department of Justice, the Solicitor General would be much better informed on this.

Needless to say, than I would be, but I can't point out to Your Honor that in this specific case, a warrant -- a search warrant, was obtained as the docket in the case and the very front of our transcript will show.

A search warrant was obtained on June 28th , based upon affidavits by an F.B.I. agent and an I.N.S. agent.

And it was not until after the man was indicted that there was any public disclosure of this matter.

It was the first public knowledge of it and Your Honor will find an entry in the docket at the very commencement of this transcript of August 7th by (Inaudible) order for sealing of search warrant and by (Inaudible) order for opening of search warrant, affidavits and exhibits file.

So --

Justice Felix Frankfurter: And these -- and what was -- and what was authorized in these warrants were subject to the same potential infirmity to which Justice Harlan referred namely the disclosure with -- with half of (Inaudible)

Mr. James B. Donovan: Well --

Justice Felix Frankfurter: Called the same kind of incriminating non-desirably disposable materials?

Mr. James B. Donovan: These search warrants, Your Honor, the actual search warrant issued, Your Honor, will find set forth the recitals that were made from pages 47 to page 55 of the transcript.

And Your Honor, will find that if, and as I'll advert to this a little later, because it is rather important to show how this search warrant, this latest search warrant, was completely based on the Latham search to which we're objecting.

Your Honor, will find that there's a recital in here about the fact of how on June 21st, Goldfus was taken into custody and the investigation was made, what was seized and so on and therefore, they asked for a search warrant to search the art studio in Brooklyn having completed this search of the hotel room which is the specific search before this Court.

Justice Felix Frankfurter: This is the affidavit on the basis of which Judge (Inaudible) made the order on August 7th and this was the warranty -- warrant not executed as a means of getting what you're complaining of.Is that right?

Mr. James B. Donovan: These warrants were executed based upon the information they secured in the Latham search which was -- had -- there was no search warrant for it whatsoever.

Justice Felix Frankfurter: What's the date of the Latham search?

Mr. James B. Donovan: June 21st, Your Honor.

So that on -- on June 21st was the Latham search.

June 28th, these affidavits were made and the warrant obtained.

The first public disclosure, the record shows, is August 7th, after his indictment.

Justice John M. Harlan: This affidavit transferred (Inaudible)

Mr. James B. Donovan: No, Your Honor.

Justice John M. Harlan: And as I understand (Inaudible) one of their statements and arguments (Inaudible) the reason they did not proceed by an arrest warrant (Inaudible)

Mr. James B. Donovan: Well, Your Honor, I respectfully submit that under the Brinegar case and under the -- under this latest Draper case, but as a matter of -- of law long before either of those cases, that based upon everything that was available, everything that was available set forth in Exhibit D in our brief.

And based upon what the F.B.I. agents could recite as to what they had been informed by this man that there'd be no question that they could -- that there was probable cause.

Any reasonable person would have said that -- that the -- that there was brave reason to believe that the -- the man had committed espionage.

I -- I think, Your Honor, will find that on analysis of the -- the affidavits that had been submitted that it -- a fairest summary of what was involved was that -- that on this particular thing that they believed that they'd unsuccessfully prosecute.

Now, I wouldn't necessarily even agree with that.

But while they do say that the available evidence was insufficient to secure a warranted complaint, all that I could say, Your Honor, is, I think, that they misconceive the law.

And I think that the Brinegar case and the Draper case make that perfectly evident.

If the Draper case could be upheld in this case where it isn't simply a question of hearsay or anything else of that kind, but every element which led Justice Black to dissent in the Draper case is clearly evident here.

Every -- every bit of the story that had been given to the F.B.I. was corroborated by this massive material set forth on pages 38 to 42 of our brief.

In other words -- in other words, Your Honor, before they ever searched Abel's room, apprehended him, or anything else, we're talking about the fact that Hayhanen, to corroborate his story, had turned over to them such items as microfilm messages, radio-receiving headsets, hollowed-out coins to contain microfilm messages and a wide variety of other things which a normal person would conclude, would be espionage materials.

Now, having reached the conclusion then, that they should act otherwise and, of course, in our brief, we explained why we believe they chose this cause of action, I should like to read what the Department of Justice decided and this is exceedingly important.

Indeed, the -- the crux of this case, in a great many ways, because for one specific reason, it completely knocks out in my judgement the -- the so-called findings made by the courts below, simply because of a misconception.

Justice Felix Frankfurter: Would you mind stating what you conceived to be the misconception?

Mr. James B. Donovan: Yes, Your Honor.

You -- Your Honor will find that the Circuit Court opinion and indeed the District Court opinion, but the Circuit Court opinion at much great length, dwells on the fact that the I.N.S. officers employed for a specific purpose, I'll explain in a minute, deserves special papers that they, in good faith, other words, this is an argument which go around the Harris case.

That they, in good faith, were performing the unlimited I.N.S. functions with blind desire.

The F.B.I., so too, in good faith, they were performing their specific functions with blindness on those specific limited functions.

But the whole point, Your Honor, and may I add then to carry that further, both courts below that it conclude that there's no reason why each one of these services, each bearing in mind this specific jurisdictional function, there was no reason they should not cooperate together.

Now, the misconception that I'm explaining is that this completely overlooks the fact that both of those services are simply component parts of the Department of Justice.

This entire thing is a function of the Department of Justice.

What we are complaining about, what indeed if this Court should find that under the Harris case, so-called good faith is lacking, it's not good faith in the part of the F.B.I., it's not good faith on the part of I.N.S., obviously, each is performing is limited.

But our whole point is that this was a Department of Justice decision that was made.

Both of these components with injustice would give in their orders and it was justice that made these determinations.

Justice Felix Frankfurter: Mr. Donovan, does -- does the record disclose at all when the United States Attorney had any responsibility in the matter?

Mr. James B. Donovan: Yes, Your Honor.

The United States Attorney first, so we'd be clear on this, is really not involved in this.

This entire thing was handled -- was handled out of Washington --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. James B. Donovan: -- by a Special Assistant Attorney General.

If Your Honors would turn please to pages 56 and 57 of the record, to the affidavit of Mr. Maroney, one of counsel for the Government in the case, I believe Your Honors will find that what I have just stated is completely borne out.

Your Honors will know -- note that in the bottom of page 56, Mr. Maroney stated in May of 1957 information reflecting possible espionage activity on the part of Abel, known then only by the cryptonym, Mark, was first brought to the attention of the Department of Justice.

The Federal Bureau of Investigation immediately conducted an intensive investigation of Abel and his alleged espionage activities and the results, thereof, were furnished to the Internal Security Division.

He then goes on -- and as I say, explained -- that they believe that they didn't have enough evidence to get a warrant, to get an indictment.

And again, as I say, insofar as having enough evidence to obtain a warrant, I say that both the Brinegar case and the Draper case ran to any of such concept of misconception.

And then I point out to Your Honor that down on the bottom of page 57, this is very well summarized.

Thus, on June 19th, 1957, the Department of Justice had information that a Soviet national was in the United States illegally and was heading up a Soviet espionage apparatus.

The Department was unable to proceed under the espionage statutes, but could proceed under the immigration laws, the duty and obligation to do so seems to us clear.

In other words, Your Honor, it's perfectly evident and as you'll see cited in our brief under the Reorganization Act a few years ago, both of these services are just components within the Department of Justice.

Justice Felix Frankfurter: Well, we can take judicial notice of that, Mr. Donovan.

Mr. James B. Donovan: Yes, Your Honor.

But regrettably, the courts below didn't see fit to -- to carry through this.

And the result was that Your Honor will find that the Circuit Court opinion rationalizes that I.N.S. have performed their duty and F.B.I. performed their duty and, of course, the two services could cooperate.

And we, of course, believe that -- that this is a grave oversimplification of the matter.

Justice Felix Frankfurter: May I ask you a question to which, I hope, there's not an incursion upon your needed time.

I want to know whether the record shows -- not that you would know, the Assistant General would -- might know -- but does the record show the overall (Inaudible) this case came to trial, is there anything to bring the more concrete (Inaudible) just did was first brought to the attention of the Department of Justice.

Now, the Department of Justice is a monstrous great big building and a great big organization.

Does it appear to whom who was co-ad hoc to the Department of Justice to whose attentions were brought?

Mr. James B. Donovan: Well, Your Honor -- Your Honor, the statements that I have just read I believe explain when this matter and in no credit detail do I know in this record.

Justice Felix Frankfurter: In the record?

Mr. James B. Donovan: No, sir.(Voice Overlap) --

Justice Felix Frankfurter: And then if there's a -- for me the fifth general contention in mind, the Federal Bureau -- it must have been some human beings whose attention was brought, the Federal Bureau of Investigation merely conducted.

Now, did they do it on their own or was there some legal oversight of that?

Mr. James B. Donovan: Well --

Justice Felix Frankfurter: But again -- and the results thereof are furnished to the Internal Security Division.

Now, that's a division of the Department of Justice?

Mr. James B. Donovan: Yes, Your Honor.

Justice Felix Frankfurter: And then I suppose by an Assistant Attorney General -- and then again, on the bottom of the page, this Department of Justice had information.

If one could have some light, has bearing on what your argument is namely that these aren't independent sovereignties we're dealing with.

We're dealing subdivisions of a -- of -- with one top head officer in charge, is that right?

Mr. James B. Donovan: That certainly, is a matter of law, that's true, Your Honor.

With respect to the time, I believe I can trace it for Your Honor in this fashion.

When Hayhanen walked into the American Embassy in Paris, he turned himself over to a representative of the Central Intelligence Agency, which would have no internal jurisdiction in the United States.

So he, accordingly, would transmit this to the Federal Bureau of Investigation which does have such jurisdiction.That would be in early May.

I would assume that the Bureau would promptly notify the Internal Security Division what, as Your Honor will see, it was only very much later that they called in the Immigration Service and informed them.

Justice Felix Frankfurter: I'd simply ask whether the thought -- the details that might have come out at the trial, but you say not?

Mr. James B. Donovan: I would say that the detail to the -- to the extent I just gave you did come out at the hearing and is pointed out by the record.

Justice Tom C. Clark: They turned it over to I.N.S. after they determined they had no evidence, not sufficient evidence to prosecute?

Mr. James B. Donovan: Well, as Your Honor will find in our brief, we frankly simply reject this entire theory and believe that it's incredible.

And what -- what we bring out in our brief is that I.N.S. was called in because they believe they had technical jurisdiction, that they could draw on administrative warrant returnable to themselves and that they could endeavor what perspectively we certainly concede, would be in the country's interest to endeavor to get this chief of Russian espionage in the United States to do what his assistant had done.

He'd been living in the United States for nine years.

Now, if -- if they could solicit his cooperation, keep the entire amount of secret, it's perfectly evident that a tremendous coup in intelligence work could be accomplished.

At a very minimum, if the man is that important, at a very -- very minimum, you would secure a complete information on an enemy apparatus.

You would secure the names of all the various people in the security.

You'd secure keys to cyphers.

And at a maximum, if -- if the fact that he had come over to the United States side could be kept secret, at a maximum, you would achieve what is every intelligence chief's dream, the creation of a double agent.

So that --

Justice William J. Brennan: Now, as the interrogation was done --

Mr. James B. Donovan: I beg your pardon?

Justice William J. Brennan: Was there any interrogation by you at the trial to -- that used evidence that could support that?

Mr. James B. Donovan: Oh yes, Your Honor.

Justice William J. Brennan: Did you get anywhere with it?

Mr. James B. Donovan: I beg your pardon?

Justice William J. Brennan: Did you get anywhere with it?

Mr. James B. Donovan: Oh yes, Your Honor.

I'm just coming to that -- I was seeking to answer Justice Clark's question.

But that in short, Your Honor, we believe that -- that the evidence in this case overwhelmingly shows that this was the objective.

And to sum up what actually we will be contending, it is not that we have condemned the Department of Justice for what was done or the F.B.I., as a matter of fact, to any person of common sense, it probably, prospectively, was worth the gamble.

However, what we say is that you cannot do what was done in this case, which is to take an administrative warrant -- first, by the way, as I'll bring out in a moment, without warrant try to get his cooperation.

Then when that failed, then have the F.B.I. call in I.N.S. officers waiting outside the hall, have them serve him with this warrant, grab everything, hustle them off in the plane to a remote place in -- in Texas and hold them incommunicado for three days.

Now, the whole point of my argument is that I'm not complaining about this.

This isn't a case in which I'm making some passionate plea that this poor man was deprived of civil liberties and so on.

The whole point is that if, under any kind of extraordinary powers that these people may possess, if they could do that, my point is that having gone down that road, employed such a process, having him drop out of sight for three days, then for six weeks holding him down in Texas, offering him a job, offering him every other inducement to come over our side, none of this ever contradicted in the court below.

I say that having taken that gamble and having lost, that then you cannot come back up the other road and seek to get an indictment and pretend the due process of laws been followed.

Justice John M. Harlan: At this -- at this point in your argument -- I want to get oriented -- at this point in your argument, are you proceeding on the assumption that there was a right to search incident to the administrative warrant or is it part of your argument that there was no such right to search?

Mr. James B. Donovan: It will be my contention that the -- that there was no right to search.

Justice John M. Harlan: And then why do -- what if -- if that's true, what difference does it make about all of this good faith argument if there was no such right to search, because the Government doesn't seek to defend this search on any basis other than its being incident to a valid administrative warrant?

Mr. James B. Donovan: Well -- and Your Honor, our answer to that is that -- that this was literally a search and seizure by subterfuge and I believe that the facts will bear out what -- what I'm saying.

What should be understood is this.

Having made in the Internal Security Division the determination that Mr. Maroney's affidavit states, then the F.B.I. called in I.N.S. and reviewed the matter with them, and as a result on June 20th, here in Washington, it was agreed that I.N.S. should execute an administrative warrant returnable to themselves, as you know, an administrative warrant to pick up the man in New York, but that -- but that this was to be served only at the signal of the F.B.I.

And that the F.B.I. was to get the first opportunity to go in without any warrant and solicit his cooperation.

Justice Felix Frankfurter: May I ask you this.

Was this a deportable alien?

Was he a deportable alien?

Mr. James B. Donovan: Yes, Your Honor.

In fact he's been ordered deport.

Justice Felix Frankfurter: Yes.

But now, are you denying your answer to Justice Harlan's question, a denial of the fact that the purposes of deportation proceeding.

Supposed I've had been calling independence so far as the I.N.S. is concerned, for purposes of deportation proceedings, the I.N.S. could've proceeded the way they did proceed.

Are you denying that?

Mr. James B. Donovan: No, Your Honor.

Justice Felix Frankfurter: What you're saying, if I get your argument is that this was not an independent deportation determinable -- determined proceeding, but this was a blind (Inaudible), the Department of Justice on its criminal side in case the hope or expectation or desire that he make full disclosure should pay.

Is that your argument?

Mr. James B. Donovan: That is precisely right.

And -- and, Your Honor, that --

Justice John M. Harlan: The place that I get completely lost on that is this.

I understood you just say a moment ago that it was your position that even though the administrative warrant was legally issued, there was no right of search which was appurtenant to the execution of such a warrant.

Mr. James B. Donovan: I'm sorry, Your Honor, I did not say that.

What I said, Your Honor, was that in no way is there involved in this case at any of our contentions because it's quite irrelevant to the case, a contesting of the constitutionality of the deportation process.

What we're saying is that you cannot use the deportation process, conduct a search and seizure, and as Justice Frankfurter said, "Perhaps, it's perfectly all right to use anything seized in that process."

But what we're saying is you cannot, with full knowledge and -- and with full opportunity and time, to have followed the other road, you cannot use this process search and seize, make no public return before any public official and then use what's seized as the basis to convict a man of a capital crime.

Justice William J. Brennan: Well, Mr. Donovan, you go beyond what Justice Frankfurter has suggested.

Namely, this far, that even though this whole operation had been an I.N.S. operation originally conceived as such, carried out as such, the evidence then seized, even though usable in the deportation proceeding, could not, however, honestly purpose of the Department in conducting that operation the way they did, but not have been used as evidence on the criminal prosecution.

Are you going that far?

Mr. James B. Donovan: I have found no decision of this Court, nor has the Department of Justice cited one that would say the contrary.

Justice William J. Brennan: Well, what I'm trying to find out is --

Mr. James B. Donovan: -- and the answer is yes.

Justice William J. Brennan: -- are you -- you're going so far then as to say --

Mr. James B. Donovan: That's correct.

Justice William J. Brennan: -- whether or not this was a subterfuge.

Mr. James B. Donovan: That's correct.

Justice William J. Brennan: Nevertheless, since it was received incident through a -- an I.N.S. administrative warrant, the evidence could not be used to support a criminal conviction.

Mr. James B. Donovan: Yes, Your Honor.

May I point out to Your Honor --

Justice Felix Frankfurter: But -- but do you -- but on your statement, on your statement of facts, is that necessary or even desirable for your case?

Mr. James B. Donovan: No, Your Honor.

It is not, but Mr. Justice Brennan asked me the question.

And what I'd like to point out is this, Justice Brennan.

Let us not think that in talking of the two roads that I have, (1) of going down this road of no public return, keeping it entirely secret, using administrative warrant, that the only other road, the road of due process was to indict for espionage.

It's a crime to illegally enter the United States.

And the record shows that a determination had been made in the Immigration Division.

The record shows this not to institute criminal proceedings at that time.

So that in answer to your question, even if you didn't have this espionage thing, I would say -- and although as Justice Frankfurter points out, it's not necessary to my argument -- I would say that to have made such a decision that they wouldn't institute criminal proceeding and then to seize the evidence of this fashion and then perhaps commence an indictment for illegal entry, I believe that the same valid objection do exist.

Justice William J. Brennan: Mr. Donovan, let me button up one more thing before you -- before I let you go.

Very early in the course of your argument, Mr. Justice Harlan asked whether the procedure that was followed here wasn't justified or induced by the conviction of the Department that to make any kind of disclosure or even to (Inaudible) the disclosure being made illegal would frustrate the whole purpose of what you yourself regard as a highly desirable end.

Now, what I want to know is this.

Whether a search warrant could have been filed under seize, seeking to get the things that the administrative process sought to get without imperiling or embarrassing or jeopardizing in the slightest, that laudable desire.

Mr. James B. Donovan: The answer to that question, Your Honor, is yes, in my judgment.

However, quite apart from that, I'd like to point out that -- that under the Brinegar case and under the Draper case, there would be no need to disclose the name of -- of this particular informant at all.

And may I also point out that Mr. Maroney's affidavit on page 57 of the record makes perfectly clear that they weren't seeking to keep this testimony secret.

What they were seeking was to try to persuade him to make it public, but he said, he would refuse to take the stand and he plead the Fifth Amendment, if he were called.

And this is stated by Mr. Maroney, so it is not and in any way that they were seeking not to go forward at that time, according to this affidavit, but rather that they didn't think they had enough to get an -- a --

Justice John M. Harlan: May I follow through on Mr. Justice Brennan's question for a moment.Supposing the F.B.I. had not shown its hand in this case at all, they weren't in it and exactly the same chain of circumstances had happened, the I.N.S. proceeding wholly, independently, the search made pursuant to an independent warrant, do you say they then could not have turned over that information to the -- to the Department of Justice for prosecution?

Mr. James B. Donovan: I say, Your Honor, that under all the facts of -- of --

Justice John M. Harlan: (Voice Overlap) this case -- take my case -- take my case please.

Mr. James B. Donovan: I'm taking -- I'm taking to your case, Your Honor, excluding the F.B.I., but I am also taking what happened in this case in the light of your decision in the Kremen case.

And I say that -- that be graved out in my judgment as to whether where the choice -- I'm assuming on Your Honors facts that they did have probable cause, enough to have gotten a warrant for his arrest for the illegal entry to the United States.

But they deliberately held back on that, instead went in, used an administrative warrant, got -- made a general search, got to all of this, rushed them off as they did down to Texas, had him dropped out of sight and then turn (Voice Overlap) --

Justice John M. Harlan: All those things are perfectly arguable things.My difficulty is that I don't see where the presence of the F.B.I. in this situation either adds or detracts in your case.

That's my thought.

Mr. James B. Donovan: I think it does very materially, Your Honor, because it -- it renders -- it renders clear what happened here and renders clear the fact that the -- that the administrative warrant was being used to accomplish what we call search and seizure by subterfuge.

Justice Tom C. Clark: But if there was a lawful right to impart by I.N.S. to do it on his own, what would exactly, having to do with this case?

Mr. James B. Donovan: Well, Your Honor, if I could get to exactly what did happen the day of June 21st, I think that perhaps this will become -- become clearer.

Now, having made this decision in Washington on June 20th, early the morning of June 21st, the I.N.S. men had slept overnight at the F.B.I. headquarters in New York.

They proceeded down with the F.B.I. men to the Hotel Latham and meanwhile, a -- a warrant of -- of arrest so-called, and in order to show cause for deportation had been issued by I.N.S.

They then enter the Hotel Latham.

The F.B.I. already was occupying the room next to Abel.

It had been previously agreed and there is no contradiction of this in the evidence that I.N.S. was to -- to serve its -- its warrant only when beckoned to do so by the F.B.I.

And there is no evidence to the contrary.

There is a great deal of evidence to the fact that the I.N.S. officers say, “Well, we were just there to do -- to do our duty and to -- we didn't render any -- to make anything contention.”

But there's no question about the fact that they had agreed rather to what actually happened.

Now, what happened was at 7 o'clock in the morning, they knocked on Abel's door, the F.B.I.

The I.N.S. officers were kept outside of the door.

When Abel opened the door, they pushed their way in.

Three F.B.I. men came in, identified themselves and then proceeded to attempt to interrogate him about espionage.

Now, all of this is brought out, incidentally.

All the evidence that we're discussing was furnished by government witnesses or was undisputed in the court below.

Agent Blasco who testified at the hearing below testified that after identifying themselves, they explained to Abel the internal security functions of the F.B.I.

They said, "Colonel, we have information connecting you with espionage in the United States."

And Your Honors will find, he said this several times, “We said to him several times, ‘Unless, Colonel, you cooperate with us, you will be arrested before you leave this room."

Now, to -- in response to this questioning, now understand -- understand the F.B.I. had no warrant of any type whatsoever.

Now, having spent a half an hour of this -- on things of this kind and getting absolutely nowhere, they gave up, opened the door, beckoned to the I.N.S. officers who then proceeded to come in and to serve the -- this administrative warrant in order to show cause.

Justice Potter Stewart: It -- you vindicated that in your view at this time, the F.B.I. did have information sufficient under this Court's decisions in Brinegar and Draper to themselves, effecting arrest without a warrant?

Mr. James B. Donovan: That's correct.

Justice Potter Stewart: So they -- in your view could have arrested him and made a search incident to that arrest at that time?

Mr. James B. Donovan: Your Honor -- Your Honor, having -- having done this, they proceeded to make a general search of the room.

As in the Kremen case, it was a superficial search there, but a complete seizure.

They took it over to I.N.S. headquarters.

He was fingerprinted and then rushed out the same day over to Newark Airport where a special plane was waiting with two armed guards.

He's put in a special plane and is taken off to this remote detention center down in McAllen, Texas.

Justice Potter Stewart: I don't want to interrupt you, but I -- perhaps my question wasn't clear, was this, that forgetting now, the I.N.S. just a few minutes ago, we tried to insulate the F.B.I.

Just assuming these F.B.I. agents had been there, it's your position, I think, that they, the F.B.I. agents at that time, had evidence sufficient under this Court's decisions, Draper most recently, themselves, to effect a lawful arrest for this man at that time, is that correct?

Mr. James B. Donovan: I think the Draper case would so hold, Your Honor.

Justice Potter Stewart: And you would also follow that in connection with that lawful arrest, they could've made a search incident to that arrest, was it not?

Mr. James B. Donovan: Yes, Your Honor.

My -- my main point of course here is that in the event that they followed normal due process, they had to make an immediate public return.

He had to be brought before a District Court or United States Commissioner.He had to be immediately given counsel.

He had to be remanded the custody of the Federal Bureau of Prisons and all of those things would have occurred.

This way, literally, a man disappeared off the face of the earth in the United States for at least three days.

Justice Potter Stewart: I see the point in your answer that if -- that if they haven't made that kind of an arrest, the kind that was made in Draper, then this man would have been -- there would have been sued all sorts of --

Mr. James B. Donovan: Every indication --

Justice Potter Stewart: -- on the protection, is it not?

Mr. James B. Donovan: Every indication, Your Honor, is that the process employed was sought to keep the things safer.

Justice Felix Frankfurter: Could they have -- even though they averse -- would have been lawful?

Could they have made the comprehensive seizure that was made here?

Mr. James B. Donovan: I wouldn't know, Your Honor.

I would know, however, that they would immediately have to have taken him over publicly before a United States District judge or a Commissioner and he would have the right to counsel and so on.

Justice Felix Frankfurter: Failure to do so --

Mr. James B. Donovan: Under the Kremen case, Your Honor, I would have great doubt.

Justice Felix Frankfurter: Failure to have taken to the United Commission on a -- bringing one up (Inaudible) but it doesn't answer the question as to the right of seizure of all this materials.

Mr. James B. Donovan: Well, I was answering a specific question, Justice Frankfurter.

Justice William J. Brennan: (Inaudible)

Mr. James B. Donovan: Well, first of all, Your Honor, perhaps it'd be simple for me to say that the Supreme Court has ever passed on this point.

I know of no case in which this has ever arisen before.

If I could direct, Your Honors' attention though to page 33 --

Justice Charles E. Whittaker: (Inaudible)

Mr. James B. Donovan: I beg your pardon?

Justice Charles E. Whittaker: (Inaudible)

Mr. James B. Donovan: Not always, Your Honor.

If -- if Your Honor will turn to page 33, Your Honor will find that in many cases the -- the man would -- would be permitted to stay home.

Justice Charles E. Whittaker: Yes.

Mr. James B. Donovan: It's -- however -- however, Your Honor, perhaps we at least could agree that it's unusual to -- to hustle a man out the back door of a hotel, put him in a waiting car and take him over in handcuffs with armed guards to fingerprint him and then take him over to a especially waiting plane at Newark Airport where he's the only passenger with two armed guards.

He isn't told where he's going and thirteen hours later, he winds up at McAllen, Texas.

Justice Charles E. Whittaker: (Inaudible)

Mr. James B. Donovan: It does, Your Honor.

It does.

And this is of course a unique case.

On page 33 on the transcript, from 33 to 37, you will find what purport to be the documents on which the legality of these unusual procedures may rests.

Now, I just like to point out very quickly a few things about these.

The -- in the first place in page 33, both of these papers were served on Abel when they seized him.

It's -- the first one is called a warrant for the arrest of an alien and there's a statute authorizing this.

Briefly, it lacks every characteristic traditionally associated with an arrest.

Arrest traditionally is a judicial process.

It's a writ returnable before a public -- public officer in a judicial capacity.

This is literally an executive -- the executive warrant.

He -- You -- Your Honors will note that there's no provision for return before a judicial officer, number one.

Number two, there's no statement that he has the right to immediate counsel.

In fact, in our reply brief, we showed that under I.N.S. regulations, the only provision for counsel is that the deportation hearing.

Number three, this contains no direction or authorization to search or seize.

Number four, and perhaps most important, Your Honors will note, there's no requirement that this be issued even based on any one's affidavit.

There's no sworn statement connected with the entire thing.

All of these things, we say, completely are lacking.

Next, on the next page, the order to show cause and notice of hearing, Your Honors will -- will notice that here, we're talking about a writ.

It appearing no statement as to what it was issued on.

There's no requirement of probable cause for the issuance of one of these.

There's no requirement that any -- any person have submitted an affidavit in support of this.

The warrant is then returnable to the man himself.

Could I also point out on page 35 in -- as part of these unusual documents, he-- the man is ordered to appear at a hearing of I.N.S. for deportation and understand these documents are expressly limited to deportation procedures, which this Court have frequently helped to take of a civil process and the men are entitled to jury trial, the very sort of thing.

But, the point is, here, to show -- to bring out the interrelationship that I was speaking of with Mr. Justice Harlan before.

The man is being notified that he's to have a hearing at 70 Columbus Avenue New York, New York on July 1, 1957.

At the very time the man was served with this on June 21st, the plane was warming up out in Newark to take him down to McAllen, Texas where he was incommunicado for three days and where, for six weeks, both F.B.I. and I.N.S. agents interrogated him, offered him cooperation if he would -- if he would cooperate and so on.

Now --

Chief Justice Earl Warren: Do they have any kind of a hearing during those six weeks?

Mr. James B. Donovan: He did, Your Honor.

At the end of three days, he -- he -- well, he decided to state that his name was Rudolf Ivanovich Abel, that he was a Russian citizen; that he desired to be deported to Russia.

Having made that statement, he was allowed counsel, called up and obtained counsel from a telephone directory down there.

Counsel came over and on June 20 -- 20th, he was given a hearing at which he was the only witness and was ordered deported to Russia.

Now, while he was given that hearing on June 27th down in Texas, on June 28th, up in Brooklyn, they were proceeding to go forward with preparations for a criminal prosecution because they were obtaining the search warrant and so on.

Now, with respect to -- to this case, as I pointed out before, even if through some extraordinary power that I'm not familiar with, the F.B.I. or Department of Justice can take people that they think are spies and do these things with them, I'm saying even if they had that, you can't -- after going down that road and losing, you can't come back and indict the man and pretend --

Justice John M. Harlan: (Inaudible)

Mr. James B. Donovan: Your Honor, the decisions of this Court have made clear in the past that every one of these cases should stand on every pertinent fact.

I submit to Your Honor that under the Harris case, every fact which I have mentioned is exceedingly important in determining what was the objective of the Department of Justice in doing these extraordinary things.

Were they interested in just picking up an alien and deporting him or were they interested in trying to pick up the chief of Russian espionage in the United States, trying to get him to cooperate with us and if it fails to prosecute --

Justice John M. Harlan: (Inaudible)

Mr. James B. Donovan: Well, obviously, Your Honor, we contend that it's highly illegal, but among the reasons why are all of these facts.

And under the Harris case, I believe that all of these facts are -- are pertinent.

Now, may I say that this isn't a case in which there are just -- a few items were seized that were introduced.

In Exhibit C to our brief, Your Honor, we'll find over 40 such items.

And furthermore, this is not a case in which we're arguing on specific decisions that under the Harris case with an overtone of the Rabinowitz decision and so on that such and such was proper or illegal.

This, we say, is a classic case of proceedings directly contrary to the expressed text of the Fourth Amendment designed to prevent writs of assistance at similar process of this nature.

Thank you.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Rankin

Mr. Rankin: Mr. Chief Justice, may it please the Court.

I'd like to try to clear up a few things before getting into my main argument.

In regard to the question about whether or not a search warrant could have been issued without revealing the affidavit that the search warrant was based upon, the law, of course, would give little value to the Fourth Amendment if you could swear out the warrant and then hide what affidavits were in support -- support of.

Now, you have to reveal to the person interested in the search, the affidavit, you have to serve it on and this is exactly what was done when -- in regard to one of these warrants in this case.

It was not revealed to the public, it was sealed against the public examination.

But the party himself was given an opportunity to see whether there was any legal basis to satisfy the requirements of the Fourth Amendment.

Justice Potter Stewart: Now, is this done, Mr. Rankin, the time of the search -- does it have to be done or only at that time that the -- that the defendant attacks the legality of the search?

Mr. Rankin: At that time the warrant is served upon.

Justice Tom C. Clark: Well, then that's the main practice.

Mr. Rankin: It's recited in this -- on 261.

Justice William J. Brennan: Page --

Justice Hugo L. Black: Page 261.

Mr. Rankin: Page 261 of the record.

Justice Hugo L. Black: 251 or 261?

Justice Felix Frankfurter: 261.

Justice William J. Brennan: Well (Inaudible)

Mr. Rankin: They assist us later.

This is the one in regard to the (.

But I wanted to --

Justice William J. Brennan: Yes, but on this occasion that that's a -- an affidavit of a matter of any attention that you would have (Inaudible)

Mr. Rankin: Well, it was left at the place of the search.

Justice Tom C. Clark: Now (Inaudible)

Mr. Rankin: No, this is a different -- different case.

Yes, this is a later search and the search warrant was served on him by registered mail at that time.

Justice Tom C. Clark: That was (Inaudible)

Mr. Rankin: Yes.

Now, if you would try to get --

Justice William J. Brennan: (Inaudible) that's a fact?

Mr. Rankin: I'm informed that the -- the warrant and the return is served on him.

The affidavit is available to him at any time upon motion.

Justice Tom C. Clark: Yes.

Chief Justice Earl Warren: That would --

Justice Tom C. Clark: That's right.

Mr. Rankin: But that -- that would satisfy the requirements of the amendment so that if we would try to get the evidence in this case, which I don't think the -- the facts bear that inference out -- but if we try to get it by that kind of a procedure, it would readily be available to Abel, this chief of the espionage apparatus.

The fact that Hayhanen had been willing to testify defected and the reason Hayhanen was unwilling to testify was that he had family in Soviet Russia, that he was fearful of being injured or disappeared.

Justice Felix Frankfurter: May I ask this --

Mr. Rankin: He did --

Justice Felix Frankfurter: -- may I ask this, do I understand from what you say that you would deny that an F.B.I. agent could make an affidavit setting for -- that information that comes to him on the -- from reliable sources, the identity of the informant not disclosable for this and this reason, giving the following information that that would not furnish an affidavit on the basis of a warrant could legally be issued?

Mr. Rankin: Well, it's my impression that the probable cause would require the -- at least the revelation to the F.B.I. agent of that information so that he could swear to the fact that it had been given to him directly.

Justice Felix Frankfurter: But he wouldn't have to disclose the name of this informant.

Mr. Rankin: I think that whatever he disclosed would have revealed who the -- the only informant could have been in this case.

Justice Felix Frankfurter: That's a different story.

Mr. Rankin: And --

Justice Felix Frankfurter: But he wouldn't have to reveal the source.

He just say and I'm reliably informed that the following fact or event that in fact exist or event that taken place on the basis at which it is necessary to apprehend John Jones.

Mr. Rankin: Yes.

But the various activities of the apparatus were such as revealed by this showing in the various drops that they had and the containers they used and the means of communication they had, that all Abel would have to do would be to count out the people that were not involved, that he knew couldn't have given the information and he would readily come back to Hayhanen as the only source.

Justice Felix Frankfurter: This Court has been pretty -- pretty regardful of the difficulties of -- of enforcement and the indication of criminal code to allow his hearsay and all sorts of things, but cutting short the kind of information on which men act in their daily lives.

Mr. Rankin: Yes.

Justice Felix Frankfurter: Roughly speaking, that's been enough to get it to sustain a legal warrant, hasn't it?

Mr. Rankin: That's correct.

But in this case, it was also clear to the Department -- and I concede of course that the Attorney General is the head of the Department of Justice.

That the F.B.I. and the I.N.S. are not watertight compartments, that they are part of the same department and the Attorney General is responsible for their respective acts.

And so -- and I think they also, by law and implication have a duty to cooperate with each other in seeing that criminal action is punished insofar as they can in accordance with law.

Now, in this case, they carefully examined the evidence.

They thought, as counsel has conceded that there was ample evidence to present this for an indictment for a criminal conspiracy or espionage.

But the -- the effecting witness that was the key to the whole thing was unwilling to testify.

He was a coconspirator, by admission, and he could've fallen back upon the Fifth Amendment as he threatened to do to -- so that his testimony could not have been obtained in court.

And all of the other material that they had was corroborated, but was not a descriptive and sufficient proof in the opinion of the Department to be able to convict this man for espionage or conspiracy to commit espionage.

So at that point, it was a question of what could be done, and I contend on behalf of the Government, without any hesitation that they didn't have to sit back and say, “Here's the man as he'd been in this country illegally for nine years, we can't get him on the charge of espionage because of this defector's unwillingness to testify.

Therefore, we'll do nothing.”

I think they had a right to try to get that man deported from the United States and not let him hurt the country anymore.

And they proceeded to act in that regard.

Now, their testimony is -- is this is the man's own testimony in this case at McAllen, Texas that he was in this country illegally, he was a citizen of Soviet Russia, he gave his name and that he came illegally through the Canadian border at an unknown point.So all of the elements for deportation were proved by his own statements within three days after the date he was taken down.

Justice Potter Stewart: Couldn't that also prove at least one criminal offense, to (Voice Overlap) --

Mr. Rankin: It also did.

But I take the position on behalf of the Government.

I maybe wrong, but I take it.

But the Government has the right to choose between the various opportunities for prosecution or action that it has.

Justice Potter Stewart: Now what criminal offenses did it prove, the failure to register with the --

Mr. Rankin: Attorney General.

Justice Potter Stewart: -- Attorney General.

I (Voice Overlap) --

Mr. Rankin: Yes.

And that's a misdemeanor.

Justice Potter Stewart: That's a misdemeanor carrying how much year or so?

Mr. Rankin: Less than a year, if I recall.

Justice Potter Stewart: And then the illegal entry itself is also a criminal offense?

Mr. Rankin: I think so, but I wouldn't -- I'm not sure about that.

Justice Potter Stewart: There were no -- no prior -- there was no actual effort --

Mr. Rankin: To prosecute in that regard.

Justice Potter Stewart: -- to prosecute him (Voice Overlap) --

Mr. Rankin: There was not.

Justice Potter Stewart: The man now is under a deportation order, isn't that right?

Mr. Rankin: That's right.

And he's convicted of this conspiracy (Voice Overlap) --

Justice Potter Stewart: Which came first, the -- well, the deportation hearing was (Inaudible)

Mr. Rankin: That's right.

And it was held and he was ordered deported before he was indicted under the espionage charges.

Now, at that point, the liaison man for the F.B.I. went to Mr. Noto, who was the head of special investigations for the I.N.S., and told him this information that he had.

And that here was a man whom they had evidence, believed is guilty of espionage on behalf of the Soviet Union and he's also illegally was in the country and has been using fictitious birth certificates and other information to remain here and to conceal his identity.

And then Mr. Noto went over to the F.B.I., talked with them further and said he would decide himself whether or not he would act to bring a deportation proceeding.

He went and talked to General (Inaudible) and told him and said he thought he had enough, but he was going to talk to the F.B.I. further and see what further material they had.

He did that on the subsequent date and then told them that he felt that there was enough and instructed his immediate -- the man immediate below him to prepare the warrant and the order to show cause and to go up the next day and serve upon the defendant.

And at that time, these men, when they went to New York, were instructed to see the acting director of the immigration service there and to -- to check with the F.B.I. in New York before serving this -- as to the identity and locating the man.

So they proceeded to do that.

They satisfied Murff, the Acting Director, that they did have reasonable cause believing this man was -- was deportable and they asked him to sign the order to show cause and this administrative warrant.

Now, there's no question but -- about the statute.

It doesn't provide for any judicial hearing on -- in regard to anything like that.

It never has for all the years it's been used in the history of our country and there's no provision for it as to the order to show cause.

But the statute was complied with.

There isn't any contention in this case that the statute was not complied with in regard to both the order to show cause and the warrant.

Justice William J. Brennan: (Inaudible)

Mr. Rankin: That's right.

Justice William J. Brennan: (Inaudible)

Mr. Rankin: It was sometime after the -- the search and seizure that July 20th is the date I'm given by counsel, Mr. Maroney.

Justice William J. Brennan: (Inaudible)

Mr. Rankin: The evidence was presented to the grand jury August 6th and 7th and the search warrant for going into his studio was on the 28th of June.

And it was the 21st that the search in question here was involved.

Justice William J. Brennan: (Inaudible)

Mr. Rankin: Yes, they will.

Now, the decision -- the decision as to the deportation was entirely made by the Immigration Service and there was no agreement that the warrant would not be served between the F.B.I. and the Immigration Service.

There was a request when they got to New York that they -- that the Immigration Service, before serving the warrant, permit the F.B.I. to interrogate the defendant, the petitioner and see if he would cooperate.

And the record is -- was going into a great length by counsel here for petitioner as to what cooperate meant and it was very clear in the record and recited by both courts below on their finding for good -- that there was good faith that cooperation was cooperating and answering the questions that were put to him.

He answered some of them.

He refused to answer others and it was soon clear after some 15, 20 minutes that he would not and --

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Rankin

Chief Justice Earl Warren: Number 263, Rudolf Ivanovich Abel, etcetera, versus -- Petitioner, versus United States of America.

Mr. Solicitor General, you may continue your argument.

Mr. Rankin: Mr. Chief Justice, may it please the Court.

I'd like to address myself first to -- in trying to answer the last inquiry from Mr. Justice Brennan.

The -- the question was in regard to interviews with Mr. Hayhanen and when he might have been indicated his willingness for the first time to testify as I understood the question.

And --

Justice William J. Brennan: With relation to the -- search in relation to --

Mr. Rankin: The first time that there was any indication that he was willing to testify in July 21st of that same year, 1957, they interviewed him again after the interviews on the 18th and 19th of June in which he refused.

On July 11th, the first time following June 18th and 19th, he continued to refuse to be willing to testify and then he was interviewed from time to time up to the 21st when he did indicate his willingness to -- to testify.

He was then -- he was then presented to the grand jury as of the 5th and 6th and the indictment was returned on the 7th of August.

Justice William J. Brennan: As I understood it, the first presentation to the grand jury was after July (Inaudible)

Mr. Rankin: That's right.

Justice William J. Brennan: (Inaudible)

Mr. Rankin: That's right.

Now, an inquiry was made by Justice Stewart in regard to prosecution for illegal entry, and there is a statute providing that that is a misdemeanor, but the statute is -- has a five-year limitation.

The evidence is that this man entered the country back in 1949, according to his own testimony.

We thought perhaps it might have been 1948.

We checked it back through and found from a manifest that he did enter under the name he gave in 1949 and so, that statute would have run.

Justice Tom C. Clark: (Inaudible)

Mr. Rankin: The fact that he refused to report to the Attorney General's continued offense.

Justice Tom C. Clark: So in your own opinion (Inaudible)

Justice Potter Stewart: Coming from the District of Connecticut.

Unknown Speaker: (Inaudible)

Justice Potter Stewart: (Inaudible) yes.

Justice Tom C. Clark: Remember this question of what's the (Inaudible)

Mr. Rankin: Yes.

Justice Tom C. Clark: The limitation wasn't here.

I just wondered --

Mr. Rankin: Well --

Justice Tom C. Clark: -- being a continuing offence and following the man where he goes under our opinion.

Mr. Rankin: It probably could be.

Justice Tom C. Clark: (Inaudible) limitations apply.

Justice Felix Frankfurter: So we'd rather to take that off it.

Mr. Rankin: [Laughs]

Chief Justice Earl Warren: Well, is it a different statute that requires him to report to the Attorney General?

Mr. Rankin: Yes, and --

Chief Justice Earl Warren: And that is a (Voice Overlap) --

Mr. Rankin: A misdemeanor too.

Chief Justice Earl Warren: That's a misdemeanor too.

Mr. Rankin: Yes.

Chief Justice Earl Warren: Did the statute run on that?

Mr. Rankin: No, it had not.

Chief Justice Earl Warren: All right.

Mr. Rankin: That would be open, but we would have to have the testimony of Hayhanen to establish that misdemeanor and convict him under it.

Now, at the time that the Latham Hotel was entered for the arrest is the position of the Government that there were -- there was probable cause although we didn't have -- we couldn't have the testimony of Mr. Hayhanen for the trial and therefore, we felt we had no chance to convict.

Nevertheless, there was probable cause on the violation of the statute in regard to the misdemeanor for not reporting to the Attorney General.

There was probable cause with -- that's been conceded here in regard to the violations of the conspiracy to commit espionage.

There was probable cause in regard to the right of deportation.

And if the statute of limitations hadn't run, there was probable cause in regard to the illegal entry, all of those at the time of the entry into the Hotel Latham.

Before closing last night, I related the evidence in regard to the Immigration Service determining that this man should be deported.

The lower court found that the Immigration Service did make that decision and that the F.B.I.did not make it.

The lower court also found that the good faith of the Government and the Immigration Service throughout in this proceeding of trying to deport this man, and the Court of Appeals affirmed that after reviewing the evidence and the position of the Government that in light of that, unless, there is an error as a matter of law, that should be accepted in this Court and a matter of good faith is peculiarly a -- a question of the credibility of the witnesses appearing before the Court and therefore, it is a matter that the Court -- this Court should leave unless there is an error as a matter of law.

Now, keeping in mind --

Justice Potter Stewart: Mr. Solicitor --

Mr. Rankin: Yes.

Justice Potter Stewart: -- General, surely in a case of this kind involving a man allegedly with his identity, the matter must have gone pretty high into the Justice Department for a decision, did it not?

What's the record showing that?

Mr. Rankin: The highest that it shows was that there was the information -- the examination of it by the Internal Security Division.

And they concluded that without Hayhanen's testimony, they could not prove the case in a trial under an indictment.

Then it went to General Swing, the Commissioner of Immigration Service, in that the probable cause information for a warrant for deportation was related to him, but the evidence is that Mr. Noto, who is in charge of Special Investigations for Immigration Service, was the one who made the decision to deport and to issue the warrant and he had the authority under the regulations.

He did direct that the warrant be prepared and issued and that the order to show cause be prepared and issued.

So, that the problem of the Department had at that time was that here was a man who has many question, who was a colonel in the espionage apparatus, one -- the highest man we've ever located in this country, that had been working in this country in that service for a period of eight or nine years at this time.

We knew that he had been active.

We had all these evidence to the fact of his activity in this espionage work during this period and corroborating evidence.

But --

Justice Potter Stewart: My -- my last -- my question was directed to --

Mr. Rankin: Yes

Justice Potter Stewart: -- to your -- what you've told us about the findings of fact in the Court -- in the District Court which were accepted -- accepted by the Court of Appeals that this was a good faith decision on the part of the Immigration and Naturalization people to effect this arrest, that there was evidence of corroboration between that part of the Justice Department and between the F.B.I., another part of the Justice Department, but the one was not acting as the secret agent of the other.

Mr. Rankin: Yes.

Justice Potter Stewart: I was wondering if -- if there was any effort in addition to that of -- of -- if there was any evidence in addition to the evidence of cooperation, if there was any evidence of coordination by somebody above each of these Departments using one where it would be useful and the other where it would be useful.

Is there any such evidence out of coordination from above?

Mr. Rankin: Not in -- in that respect.

I think that the -- the inference can be drawn that it was concluded that Internal Security Division had come to the conclusion that they couldn't prosecute because without Hayhanen, and therefore, the question was, “What could be done to stop this man from continuing as an espionage agent working in this country?”

And that the best thing left was to deport him.

At least he couldn't keep on working to try to obtain and divulge the securities about the internal security of this country and its defense.

And so I think that it's apparent from the record and both courts concluded that that was the purpose that they felt they couldn't prove the others, although they had probable cause and grounds for an arrest, they -- they couldn't go in the Court and prove it and therefore, they want to stop this man from continuing to operate on the country as an espionage agent.

So they proceeded this other way that the statutes give the power to the Attorney General to act, and he proceeded to do it and act in good faith.

And then they came upon this additional evidence, which was not necessary if they had Hayhanen, what was cumulated.

No question about it in regard to the espionage matter.

And it's a question of whether under the decisions they had to pass that up or whether they could take it as a part of a proper search and seizure and -- and actually the deportation.

Justice John M. Harlan: Did Hayhanen testify at the trial?

Mr. Rankin: Yes, he did.

Justice John M. Harlan: What brought about his change of attitude?

Mr. Rankin: Well --

Justice John M. Harlan: Is that shown on the record?

Mr. Rankin: It's not shown.

Justice Felix Frankfurter: Mr. Solicitor, may I ask this particularly if you have time to deal with it at the time that you have left?

Mr. Rankin: Yes.

Justice Felix Frankfurter: I would like to know what the relevance of good faith (Inaudible) so the test to the fact of good faith is the question whether or not the Fourth Amendment has or has not in this regard.

What's the relevance of that?

Even --

Mr. Rankin: Well --

Justice Felix Frankfurter: -- assuming that the Harris case says so known use to you that the Harris case had been constantly on the trier in this Court raising a constitutional question which can only be opened up --

Mr. Rankin: Yes.

The --

Justice Felix Frankfurter: -- if you have time in your --

Mr. Rankin: Well --

Justice Felix Frankfurter: -- scheme of argument.

Mr. Rankin: Yes.

The Harris --

Justice Felix Frankfurter: (Voice Overlap) that simple question for me.

Mr. Rankin: The Harris case does speak of good faith and the fact that there was good faith in the search and seizure (Voice Overlap) --

Justice Felix Frankfurter: Which I do not doubt meaning by good faith that it was conscientiously being this is the wise and right thing to do.

Mr. Rankin: Yes.

Justice Felix Frankfurter: Is that a fair definition of good faith?

Mr. Rankin: Well, I think there's also a claim here that we didn't really want to deport this man, that we were just using it as a subterfuge or device, and that therefore, by such a device, we couldn't go around and collect evidence in a search and seizure by that means.

And they compared it with a case where the man slipped into the office of a man on the representation we're just making a visit.

You recall (Inaudible) case.

And in that case, he then proceeded to make a search and seizure in a clumsy manner after he'd gotten in that way.

The Court said that was not a reasonable search and seizure in accordance with the Fourth Amendment.

I think that's the effort here to try to make it appear to be a subterfuge and not a valid deportation proceeding.

Justice Felix Frankfurter: But my question didn't proceed from that assumption.

It proceeded from the contrary assumption.

This was simply the high-minded conscientiously conceived procedure on the part of the enforcing authority.

What I want to bring is what difference it makes from the point of view of the Fourth Amendment whether in a search or a seizure, they are not identical, which if there weren't some excuse with reference to deportation, would be on the wrong side of the Fourth Amendment.

What difference does it make that on the right side of the Fourth Amendment that -- that the steps that were taking or excusable or justifiable for purposes of deportation, but the proof of the enterprise is not to secure deportation but to get a conviction for a capital offense or maybe a capital offense.

Mr. Rankin: Well, if --

Justice Felix Frankfurter: That's my problem.

Mr. Rankin: If it was in a bad faith and a subterfuge, then you don't reach the basic question, I think, that you're directing to of whether or not it's proper to have a search and seizure under a deportation warrant in any event in accordance with the provisions or requirements of the Fourth Amendment.

Justice Felix Frankfurter: Or -- or to have it for purpose of deportation.

Mr. Rankin: Yes.

Justice Felix Frankfurter: Not usable for purposes of a criminal conviction, particularly of this kind of thing.

Mr. Rankin: Proceeding to that, it seems to us in examining the cases the question is under the Amendment, what is a reasonable search and seizure?

Because that's what the Amendment says and that's what this Court had said.

And when you get the Latham Hotel, the search and the seizure that's involved in the first part, and I'll deal with the latter -- with the next step a little later, was by the Immigration Service and after they asked for this hearing as to cooperation and they got pass that and they got no cooperation, then the Immigration Service proceeded to make themselves known and that -- and present their credentials.

They asked the man what his name was.

And he said it was Martin Collins, which was one of the names on the -- was the name on one of the fraudulent birth certificates that he had that was discovered in the search.

They then proceeded, he was not dressed, and they told him to get dressed.

They presented their arrest warrant and their order to show cause and he receded the order to show cause.

They then asked him what clothes he want to take, what he -- what -- what he want to wear first, and they searched the clothes he was going to wear as to weapons and evidence of nationality or alienage.

And then they proceeded to ask him what he wanted to do about its things.

Did he want to take all his belongings with him?

And he said he did except for certain reservations.

And then they started it from a job of packing up.

Now, the only reason that you allow, as I understand it from the cases, the man to be searched with regard to weapons and anything that he might make an escape with is to protect the officers in carrying out their duty of serving the warrant.

And certainly that is necessary if you assume that a man has to be taken into custody for deportation, and certainly, he has to be taken into custody if it's in the interest of the protection of the country, which this certainly was within espionage agent.

All right.

When you -- when they examined him with regard to weapons and means of escape then the cases have held that if you run across evidence of the fruits of the transaction, illegal transaction, he's got some money on him, a robbery or anything like that, you can take that.

If he's got the means of committing other crimes, you can take that.

Now --

Justice William O. Douglas: If there were three -- three different groups of things taken, one -- some were on this person --

Mr. Rankin: Yes.

Justice William O. Douglas: -- is that right?

Mr. Rankin: No, none of them on this person.

Justice William O. Douglas: But one -- one was something up his sleeve.

Mr. Rankin: Well, he tried to slip it up the sleeve after he got dressed.

Justice William J. Brennan: Well, that (Inaudible).

Mr. Rankin: Well, but that got on later.

He was -- he was not even dressed.

Justice William J. Brennan: Well, no -- he -- he was naked, as I understand --

Mr. Rankin: That's right.

Justice William J. Brennan: -- when the officers came in.

Justice William O. Douglas: But one thing was taken from his sleeve, is that right?

Mr. Rankin: Yes, that's right.

Justice William O. Douglas: Some things were taken from a waste paper basket?

Mr. Rankin: That's later.

Yes, by the F.B.I. after he'd given up the room.

Justice William O. Douglas: That's after -- that's after they came back?

Mr. Rankin: Yes.

Justice William O. Douglas: At the original time, one thing was taken from his sleeve and the rest were taken from the room at his request?

Mr. Rankin: Well, yes.

They were taken from the room in the process of packing up his belongings.

Justice William O. Douglas: Was that at his request?

Mr. Rankin: Yes, he -- he said he wanted to take his belongings with him.

And they helped him pack.

And it's the position of the Government that it's unreasonable not to permit them to go through these various belongings and see whether he had any weapons or means of escape or any of the other contraband or any other unlawful means.

Justice William O. Douglas: Anywhere in the room?

Mr. Rankin: That's right.

The room was only 8 by 12.

Justice Hugo L. Black: (Inaudible)

Mr. Rankin: Some of them were.

Justice William J. Brennan: (Inaudible)

Mr. Rankin: Yes.

Justice William J. Brennan: Now, one was this -- the code message, that's the one that he was attempting to put up the sleeve.

Mr. Rankin: That's right.

Justice William J. Brennan: Now, who took that?

The -- the Immigration agents or --

Mr. Rankin: That's right.

Justice William J. Brennan: Yes.

Mr. Rankin: The Immigration.

Justice William J. Brennan: Immigration.

Then the second group consisted of the false Martin Collins birth certificate, the false Emil Goldfus birth certificate, the vaccination certificate, Mark Collins and the bank book in favor of Goldfus.

Mr. Rankin: Immigration --

Justice William J. Brennan: Now, where -- where were each of those?

Mr. Rankin: Well, those were in his belongings that were being packed.

Justice William J. Brennan: Well, what I'm not quite clear about is when you say “in his belongings,” in the suits of clothes or in --

Mr. Rankin: That isn't clear.

Justice William J. Brennan: -- dress drawers or something?

Mr. Rankin: That isn't clear --

Justice William J. Brennan: That doesn't appear?

Mr. Rankin: -- from the evidence.

No.

Justice William J. Brennan: But again, who -- who was it that -- that found them?

Mr. Rankin: The Immigration agent.

Justice William J. Brennan: Immigration agent.

Then finally, there's this trick sandpaper block, which had the cipher pad and a hollowed-out wooden pencil with a microfilm.

Now, both of those were in the wastepaper basket.

Mr. Rankin: That's right.

Justice William J. Brennan: Now, those are the two, are they, that the F.B.I. agents recovered from the wastepaper basket after he had left the room?

Mr. Rankin: After he'd given up the room --

Justice William J. Brennan: Yes.

Mr. Rankin: -- and checked out and they got a consent from the hotel to examine the room at night.

Justice William J. Brennan: Well, now, can you tell me --

Mr. Rankin: Right.

Justice William J. Brennan: Do you defend the use of these three categories on the same ground or on different ground?

Mr. Rankin: Well, on different grounds.

The F.B.I. search, it seems to us, is clearly after an abandonment.

Justice William J. Brennan: That then -- that would cover the sandpaper --

Mr. Rankin: That's the wastepaper.

Justice William J. Brennan: -- block and the hollowed-out wooden pencil.

Mr. Rankin: Yes, he'd thrown those in the wastebasket.

And we thought --

Justice William J. Brennan: Well, now, how about the other two categories?

Mr. Rankin: The other two categories are in the ground that they were helping him pack and it was reasonable for them to look through the things that they pack before they gave him to him so that he could do them any harm or use them if they were in violation of law.

Justice William J. Brennan: Now, the birth certificates, the vaccination certificate and the bank book, I take it, would all be relevant to a deportation proceeding, would they?

Mr. Rankin: Oh, yes.

They would be a means by which he could maintain his -- his fictitious identity as he claimed he was Martin Collins here.

He also used the name Goldfus at his studio.

Justice William J. Brennan: Now, what the -- what about the code message?

That would not be relevant, would it, to the deportation as such?

Mr. Rankin: No, but that he was trying to slip up his arm and was evidence, clear evidence of espionage.

Justice William J. Brennan: Have the --

Mr. Rankin: So it was a means of committing a crime and the courts held that you don't have to pass up a material of that kind, that you can take it if you run across it.

Justice William J. Brennan: Now, may I get one other thing straight.

You've already told us that on the third category, those you -- the Government's position is they're admissible since they have been abandoned.

Mr. Rankin: Yes.

Justice William J. Brennan: But on the other two categories, do you rest the admissibility of them as incident to the administrative warrant?

Mr. Rankin: Yes.

Justice William J. Brennan: And not on any other ground?

Mr. Rankin: Well, we -- we think there's no question of what -- there is grounds for an arrest, but he's criminal.

Justice William J. Brennan: But the arrest, their admissibility as incident to a lawful arrest or as incident to the use of the administrative warrant?

Mr. Rankin: Well, we urged before the Court the administrative warrant each time and its question whether the fact that there was grounds for arrest otherwise are sufficient under the -- the law or not.

They are, in some of the cases the Court has handed down and you might not be willing to recognize it here.

Justice William J. Brennan: Well, I'm -- I'm still not quite clear whether the Government is or isn't resting their admissibility as incident to a lawful arrest.

Mr. Rankin: Well, we take the position that the Immigration warrant was a justification of warrant.

Justice Felix Frankfurter: Is it fair -- is it fair to say or to assume that at no time during the period that the administrative warrant -- let me rephrase, I mean, that from the time that an administrative warrant was determined upon (Inaudible) that from that time on, there was already reasonable ground, speaking out technically or administratively that there -- in the minds of the Department that this is a potential espionage case as well.

Mr. Rankin: Yes.

At all times, there was no question of what -- there was sufficient evidence that would get -- would get him to testify for an espionage case.

Justice Felix Frankfurter: So that coincident with pursuing means for getting in deported was the hope and desire that he -- that he also would be charged with a crime subject to criminal prosecution.

Is that a fair statement?

Mr. Rankin: Well, not exactly because if we could have gotten a -- an espionage case against them, we certainly wouldn't have sought an immigration -- a deportation case.

Justice Felix Frankfurter: I didn't mean that you had sufficient evidence in justifying the Government to go into court and put him to trial but it was in the mind of the authority that this is a potential spy case, is that right?

Mr. Rankin: Well, it -- it was if we can get Hayhanen to testify, but we couldn't at that time and so, we --

Justice Felix Frankfurter: It's the thought of getting but not abandoned, in other words, the open expectation that it would turn out, as it did turn out had not been abandoned or -- in the case.

Mr. Rankin: Yes, yes, it had.

Justice Felix Frankfurter: It had been a --

Mr. Rankin: Yes.

Justice Felix Frankfurter: It had been abandoned.

Mr. Rankin: It -- it had been in a sense that they had concluded that they couldn't get Hayhanen to testify and the best thing to do is deport him.

Chief Justice Earl Warren: I suppose also the Government had in mind if it would locate enough evidence of crime by a search that it would prosecute him for the -- the subversion even though Hayhanen didn't testify.

Mr. Rankin: Well, I -- I think it would have, but he was very remote that could happen with such a skilled person.

And it's -- they didn't anticipate they could get the independent evidence that would be sufficient for that purpose.

They always had plenty and more than enough if Hayhanen would testify, but this man was a -- a very skilled operator and it was not expecting that he would leave around anything.

Justice Felix Frankfurter: I think you answered -- you answered in -- didn't answer to a question of mine yesterday that it was not feasible to swear out of search warrant on secondary evidence by an F.B.I. agent because there would have been a disclosure which the Government was naturally not -- not willing to make, is that right?

Mr. Rankin: I think I -- that was my answer, yes.

Justice Felix Frankfurter: That was to that point.

Now, the question I put to you this morning is on a different attack, namely, assuming such a difficulty confronted the Government could had circumvent, that -- that carries an odium which I do not need to carry -- convey, could the Government, as a matter of the Fourth Amendment, the new construction of the Fourth Amendment, could the Government abandon because of the difficulty of getting the appropriate witness or witnesses, could the Government abandon both of a criminal prosecution and yet proceed, assuming it could legally proceed, by way of deportation and make the administrative enforcer, the administrative warrant in the course of that make a search and make seizure which independently considered would not be warranted in the criminal case, nevertheless, use such products, a proof thereof in, what turned out to be happily, the basis of a criminal prosecution.

That's my problem that I put to you, and I hope you would have something to say about it.

Mr. Rankin: Well --

Justice Felix Frankfurter: Before you do that, I just want to call your attention to the fact that you naturally enough because the Court's opinion that even you leave to do so or lead you do to so, the Fourth Amendment doesn't say there may be reasonable search.

It doesn't --

Mr. Rankin: It says there may not --

Justice Felix Frankfurter: -- say that.

Mr. Rankin: -- may not be unreasonable search --

Justice Felix Frankfurter: They may not be unreasonably that goes on as part of the same sentence to indicate what an unreasonable search is, namely, one without a warrant and the warrant specified to carry with it the detailed and the particularity that the Fourth Amendment enumerate and all the rest seizures without any warrant historically was doubtful, but (Inaudible) was talked about.

It was very doubtful whether you could make seizure even with a warrant.

And the Fourth Amendment put in the qualification which illuminated the first half of the Fourth Amendment what it is that constitutes an unreasonable search, namely, one without a warrant, and the case here is a matter of necessity like a fellow running away or there isn't group time for it, have read into that Amendment the qualifications that I -- I insist, if I may respectfully, that it's very important not to read that Amendment as authorizing reasonable search.

That's a gloss in -- from my point of view and on warrant of a gloss on the Fourth Amendment.

Mr. Rankin: Well, of course, we have to deal with the decision of the Court.

Justice Felix Frankfurter: It takes them to get filed up, I started out by saying you have every warrant to say what --

Mr. Rankin: Yes.

Justice Felix Frankfurter: -- you say.

Mr. Rankin: And the Court may reexamine Harris and decide that a warrant is necessary if there's time to secure, and we don't claim that there was not time to secure it in this matter because there was, but we weren't trying to search for anything in this case.

We were trying to deal with a very serious problem of an espionage agent and trying to take care of it since we couldn't have the witness by deporting him.

Justice Potter Stewart: Mr. Solicitor General, you don't accept the theory of the petitioner that the record shows that what the Government perhaps really had in mind was the hope that this man, Abel, might cooperate with the Government and become a dual agent for.

Mr. Rankin: No --

Justice Potter Stewart: You say -- you say the record doesn't show that, do you?

Mr. Rankin: The only record on that is the claim of the petitioner himself, his affidavit.

He never did take the stand in this matter in support of that.

There's no other evidence, all the other evidence is to the contrary.

Justice Potter Stewart: Was the affidavit admitted in connection with the motion to --

Mr. Rankin: Yes.

Justice Potter Stewart: -- suppress the evidence?

Mr. Rankin: Yes.

Justice William J. Brennan: Mr. Solicitor General, before you get to answering Mr. Justice Frankfurter's question, which I'm also anxious to hear you answer, gets the more on the bright side out of the way.

If you are wrong, the Government is wrong that any or all of this search and seizure cannot be supported on the administrative warrant, are you making any argument as to any of those items and if so, which ones that their admission in face of the fact that you get Hayhanen finally to testify was harmless error?

Mr. Rankin: Well, we think it -- they were accumulated and the other evidence were so overwhelming that they would not be controlling in the case, but the code book is an important evidence on espionage in identifying Abel with us.

And certainly the code message was.

So those two items was --

Justice William J. Brennan: So if there were any harmless error, you'd limit that to those which are really related to the deportation, I gather, not so much to the espionage and that's the birth certificates, vaccination certificate and the bank book.

Mr. Rankin: Yes, sir.

Justice John M. Harlan: Could I ask a question?

Mr. Rankin: Yes.

Justice John M. Harlan: (Inaudible)

Mr. Rankin: Well, they've been used in the Court as -- tacitly recognizable that give her 70 years or more.

Justice John M. Harlan: What were the -- was there anything on the record -- perhaps the record will say what's been the practice of these -- these administrative warrants.

I -- are you opening that warrant by a search by the district?

Mr. Rankin: Well, they've -- they've always been accompanied by a search to be sure they wouldn't kill the man that was trying to serve them.

Justice John M. Harlan: (Inaudible)

Mr. Rankin: Yes, and also the surroundings --

Justice John M. Harlan: Surroundings.

Mr. Rankin: -- because otherwise, they'd be leaving themselves open to the --

Justice John M. Harlan: What -- what I'm trying to get at is whether (Inaudible)

Mr. Rankin: No, it was in accordance with the standard practice.

Unknown Speaker: Where --

Mr. Rankin: The only difference that there was in this case that I think there might not be in all cases was the inquiry as to whether he wanted to take his belongings because he was in the hotel room and he said he did.

And so that would necessitate the examination of those belongings to see if there was any weapons or anything of that kind in them.

Justice Potter Stewart: If I may interrupt you.

Is there -- where -- where can the -- are there any materials available anywhere in the Court's decisions or rules of the Department or anything else as to -- to support your statement, which, of course, I don't doubt that this was in accordance with the standard practice?

Mr. Rankin: There is an affidavit by Mr. Farley of the Immigration Service on page 68 of the record.

Unknown Speaker: 68?

Mr. Rankin: Yes, 68.

And then if you go down to the second full paragraph, the last sentence, this is customary practice after he's related the search and all, when aliens are arrested by Immigration and Naturalization Service officials on charges similar to those which led to this arrest.

Justice William J. Brennan: What about -- what about the (Inaudible)

Mr. Rankin: Well, that's the only maximum security point that the Immigration Service had.

Justice William J. Brennan: Well, what -- what did the order to show cause or turn into --

Mr. Rankin: In New York, yes.

Justice William J. Brennan: In New York.

Mr. Rankin: That's right.

Justice William J. Brennan: (Inaudible)

Mr. Rankin: I think it was the 24th, but I'm not sure.

Justice William J. Brennan: (Inaudible)

Mr. Rankin: 10 days later.

Justice William J. Brennan: (Inaudible) already waiting there?

Mr. Rankin: Well, if it wasn't already waiting, they certainly plan for it, I'm sure.

And he went to that hearing.

He's represented by counsel.

Justice William J. Brennan: (Inaudible)

Mr. Rankin: Yes, sir.

Justice William J. Brennan: And that -- that's the hearing in response to the --

Mr. Rankin: Yes.

Justice William J. Brennan: Provision of the order to show cause?

Mr. Rankin: No objection was made.

And he then admitted that he was illegally in the country, that he come across Canada and -- and the whole case was admitted right there in regard to deportation.

He was already deported.

Justice Tom C. Clark: Is it true when (Inaudible) under the law of security if (Inaudible) of the Immigration Service?

Mr. Rankin: Well, Mr. Justice, the (Inaudible) has been changed in recent years.

We've given that up.

But if it doesn't involve security, they are provided in -- now in hotel rooms or other divisions in the -- in the area there in New York.

Justice Tom C. Clark: New York?

Mr. Rankin: Yes, and the statute gives a commission of the discretion.

In many of the cases, they're not retaining custody at all, but this was one where they didn't want him to operate another day, another moment on this espionage operation that they could help.

That was the whole purpose of trying to deport him, it was to get him so he wouldn't be able to operate anymore.

And the only place they had was this one at McAllen, Texas.

Justice Felix Frankfurter: Am I right in -- in calling out cases, I should, after probing, you're saying there was time that this Court has never held that that -- what did you say about it?

That if there is time you must get a warrant, have we ever -- have we ever held that as adoption or said merely because there was time, doesn't exclude consideration of other factors.

Mr. Rankin: Well, in Rabinowitz --

Justice Felix Frankfurter: In the matters of (Inaudible) --

Mr. Rankin: It seems to me in Rabinowitz, you express the overrule of the Trupiano case in -- in which there was a requirement if there was time to get the search warrant and you expressly overrule that.

Justice Felix Frankfurter: But that case (Inaudible) doesn't matter.

The -- the Rabinowitz case went on some petition or ground, didn't it?

Mr. Rankin: Yes.

Justice Felix Frankfurter: It didn't say it's an immaterial factor.

Mr. Rankin: Well, there -- in this case you -- we must look at the fact that this wasn't done for the purpose of getting any search or seizure at all.

That isn't what they went there for.

They were going to deport him.

Justice Felix Frankfurter: That's what I mean but this doesn't -- therefore, you defend this man.

It doesn't matter whether there was time or not.

You justify the legality of it being an independent ground.

Mr. Rankin: That's right.

Justice Felix Frankfurter: And the mere fact that there was time you argued doesn't displace those other legalizing evidence, isn't not what the position you take?

Mr. Rankin: Yes, because the -- the discovery, the search and the seizure were --

Justice Felix Frankfurter: Within the course of -- of illegal enterprise.

Mr. Rankin: That's right.

Justice Felix Frankfurter: That's your position.

Mr. Rankin: And it was a lawful entry and lawful action, and so the search and seizure were lawfully.

Justice Felix Frankfurter: And you transfer that which was legal with reference to the pursuit that was made, i.e. deportation, does not bar the use of testimony so secured in what subsequent they became a criminal prosecution and that's your position?

Mr. Rankin: That's right.

The -- all of the reasons for applying those principles in the criminal cases are here in regard to this deportation case.

And so we say that if a person being prosecuted for a crime would not be this -- be barred from such a search and seizure.

Justice Felix Frankfurter: I'm still troubled by what seems to me a necessary (Inaudible) and I'd say he can't be taken but it does require a transfer.

You argue in the first place that the restrictions as to search and seizure that applied to an unembarrassed or an unequivocal criminal prosecution --

Mr. Rankin: Yes.

Justice Felix Frankfurter: -- if this was just a criminal prosecution, for all I know, you wouldn't be here defending.

Mr. Rankin: No, this would satisfy all the requirements of Harris or Rabinowitz in that event.

Justice Felix Frankfurter: So you don't -- you don't have to rely on the deportation proceeding.

I thought you do -- you do rely on it and say since what you've got, you got in the course of a proceeding which is legal because it is for purpose of the deportation, you then had a windfall and you can process by the windfall in the criminal prosecution.

That's what I call making a jump, that because you would be justified in using this materials under this procedure to be brought in, you're also justified in using it in order to convict him.

Mr. Rankin: Well, I agree with your last statement but I say that if it was a criminal proceeding as distinguished from one for deportation, it would come within all standards and requirements of Harris and Rabinowitz.

Justice Felix Frankfurter: In other words, you've got two grounds and say you -- you got this in a legal -- in a legal deportation proceeding, therefore, you can use it, there's no taint to it, but in any event, you say even if you didn't have that, the search and seizure here were incident, your lawful arrest when you could -- you could have made these things to move, legally made procedure and to get the benefit of it, is that right?

Mr. Rankin: Well, that's the question that Justice Brennan asked me, and I said I think that's true but I don't think we argued that before in the other two courts and so the Court -- unless they will let us argue that here the first time.

Justice William J. Brennan: Well, that's what I'm -- that's why I asked you the question earlier that I want to be clear that you are resting upon the legality of this -- use of this administrative warrant and nothing more.

Mr. Rankin: Well, I -- I would argue that the arrest was legal in regard to the criminal matters.

There was probable cause for the officers to be there but I'm arguing, I want to clearly understood for the first time in this Court and it was not argued in the Court of Appeals or the District Court to sustain.

Justice Felix Frankfurter: I don't think that bar you from arguing anymore to debar me from sustaining their judgment below on a ground which the Court of Appeals didn't take.

Mr. Rankin: Well, you may not be willing to grant it to me but I'm arguing it anyway on both grounds and I think they're both there.

Justice William J. Brennan: Well, I'm glad now that it came up again because I have the other understanding from your answer to --

Justice John M. Harlan: As I understand your argument -- your answer to Justice Frankfurter is that you say you have a right to search incident to an administrative arrest that the scope of that right to search is certainly no narrower than the scope under Harris, that testing their search by the Harris standards is good as an administrative search, isn't -- isn't that -- isn't that what you meant?

Mr. Rankin: I -- I answer it that way and I also add that it was a lawful -- there was probable cause for an arrest because of conspiracy to commit espionage and for violation of the statute about reporting to the Attorney General.

Justice John M. Harlan: In other words -- well, that's Justice Brennan's question and I have --

Mr. Rankin: That's right.

Justice John M. Harlan: -- the same confusion that he does.

I understood you to say to him first that if your administrative search defense was not accepted by the Court, you then felt that you would -- could not testify this on any other ground.

Mr. Rankin: I said we didn't argue before the other two courts on any other ground.

Justice John M. Harlan: But you --

Mr. Rankin: But I do think that there's adequate ground here.

There was probable cause for arrest for the criminal matters that I have described.

Justice John M. Harlan: The reason you don't argue it, I take it, is because of what we said in the Giordenello case --

Mr. Rankin: That's what bothers --

Justice John M. Harlan: -- that these people did not have a chance to justify the reasonableness of the search on a basis that wasn't advanced by you there.

That's the problem and you're rubbing it.

Mr. Rankin: But -- yes.

But I still want you to consider it, if you will.

I think --

Justice John M. Harlan: I understand.

Mr. Rankin: -- it's all there and the facts were all there.

Justice Tom C. Clark: But you're committed (Inaudible)

Mr. Rankin: Yes, that's admitted.

It's clear in the record and there is no question about it.

Justice Potter Stewart: Now, of course, if there had been that kind of arrest by the F.B.I., the arrest would have been followed by immediately under the Criminal Code of Procedure by -- by an arraignment and under which this man would have had various protections.

That's true, isn't it?

Mr. Rankin: Well, yes, but I don't think that would affect the search or the seizure.

That would affect whether or not the due process from then on.

Justice Potter Stewart: From then on.

Mr. Rankin: I think --

Justice Felix Frankfurter: But -- but wouldn't it shed a light under justification, if you do not treat -- so if you do not treat the seizure as incident to an arrest for which you have probable cause and you do not so treat it because you do not follow the consequences, as Mr. Justice Stewart just suggest, then you can justify it because the conduct negative the justification.

Mr. Rankin: Well, if we had done that, you would say it was a mere subterfuge or device to get the evidence for that purpose instead of for purposes of deportation.

Justice Felix Frankfurter: You mean if we have done what?

Mr. Rankin: If we had gone and --

Justice Felix Frankfurter: (Inaudible)

Mr. Rankin: -- and claimed that it was an arrest --

Justice Felix Frankfurter: But you can claim it's an arrest for purpose of search and seizure, but not an arrest for purpose of protecting him in a way in which an arrested person is protected.

Mr. Rankin: Well, if all --

Justice Felix Frankfurter: You can't -- I don't think you can do that.

I think --

Mr. Rankin: If there's probable cause, there is -- the question is whether the officers are lawfully there.

Now, if there's probable cause, they are lawfully there in -- in order to make an arrest and the rest of it, the search and seizure follows just like day after night.

Justice Felix Frankfurter: Yes, but the probability is negative by the fact that you don't draw the consequences of what -- of what you justify as probability for the purpose of seizing and it exhaust itself in seizing and therefore, one has a right to say, you seize because you wanted to seize and not because it was incident to an arrest.

Mr. Rankin: Well, if the probable cause is there as admitted here --

Justice Felix Frankfurter: You don't say it does evaporate.

Mr. Rankin: It doesn't disappear.

Justice Felix Frankfurter: All right.

Mr. Rankin: And that's the justification for the search and seizure.

Justice Felix Frankfurter: To me, all the shed light --

Justice Hugo L. Black: May I ask you one question to get clarification, I don't quite understand.

Suppose there had been no so-called administrative warrant at hold, would your argument has been different?

Mr. Rankin: I would have argued throughout.

And the Department would argue in the lower courts that there was probable cause in regard at least two offenses, criminal offences, and there was ample ground for search and seizure at all times.

Justice Hugo L. Black: Without -- you do not put and it relies then on the administrative warrant.

Mr. Rankin: I rely on both by --

Justice Hugo L. Black: Oh, how can you rely on it?

Mr. Rankin: Because we did have one.

That is the fact.

Justice Hugo L. Black: But would it comply?

Could -- could the F.B.I. issue a warrant like that without going to a magistrate to arrest the man for crime?

Mr. Rankin: Yes, they could -- they wouldn't issue the warrant but the warrant was issued under the statute.

The --

Justice Hugo L. Black: I understand that.

I'm talking about the Fourth Amendment.

Mr. Rankin: Well, if it was in regard to a crime?

Justice Hugo L. Black: Yes.

Mr. Rankin: They wouldn't have to have the -- a warrant.

They had probable cause to arrest the man right there.

Justice Hugo L. Black: Then I understand that what you are saying is, that's what I asked, maybe I'm wrong, that they didn't have to have anyone either from a magistrate or from the administrative officer for whatever that's worth.

I don't know what its worth.

You're saying they didn't have to have any warrant because they had probable cause to go in and arrest.

Mr. Rankin: That's right.

Justice Felix Frankfurter: Without a warrant?

Mr. Rankin: Yes.

Justice Felix Frankfurter: Without a warrant?

Mr. Rankin: Yes.

Justice Felix Frankfurter: I don't understand that.

Mr. Rankin: That was a -- a crime was being committed right then.

He was not reporting --

Justice Felix Frankfurter: But when they got on the premises -- they got on the premises because in their head, there was a conviction that there was probable cause and if that is true, then they have no business, as I understand it, then they would have to get a warrant for his arrest.

You say they knew they had all this fact in their head, that constituted probable cause.

I suggest it constitutes probable cause for getting a warrant for arrest but not for going in and arresting him.

Mr. Rankin: Well, if the -- the -- there are cases by the Court that if there are acts in their presence that amount to a commission of a crime that that's probable cause.

Justice Felix Frankfurter: What -- what acts were they permitted in, except the evidence of what the basis on which they proceeded with?

Mr. Rankin: He was at that time claimed to be Martin Collins under a fraudulent birth certificate in their presence and that was a -- a violation of the statutes.

Justice Felix Frankfurter: Well, then, the consequences of this is far-reaching, Mr. Solicitor, being that if arrest -- if -- if the Department of Justice officials have good reasons for getting a warrant of arrest for a man but they don't get a warrant of arrest, they enter his premises, they ask him a question, they have every reason to believe that he's going to lie, they now say, "Oh, you liar because we know that isn't your true name."

That would make hash of the duty to get a warrant of arrest as well as the duty to get a warrant for search.

Justice John M. Harlan: Well, as -- as I understand your brief (Inaudible) being led to making an argument by the questions of the Court if you don't make in your brief --

Mr. Rankin: That's right.

Justice John M. Harlan: -- in other words, you do not depend in your brief the search and seizure independently of its being a valid search incident to be administrative arrest.

Mr. Rankin: That's correct.

Justice John M. Harlan: And you draw assessments from the Giordenello case on another basis, namely, when you come to answering your adversary's arguments as to the scope of the search you say therefore, closed in raising that up here because they didn't raise it below and under the Giordenello doctrine, they can't be heard to argue that when you had no opportunity to depend them on that score in the court below.

Mr. Rankin: That's right.

Justice John M. Harlan: So that you were --

Mr. Rankin: As to dilemma --

Justice John M. Harlan: It seems to me you are being -- you are being led into an argument here which puts you in an inconsistent position and it's quite different from the one that you make in your brief.

Mr. Rankin: That's correct, Mr. Justice.

Justice Hugo L. Black: And I may say that I'm puzzled still.

Mr. Rankin: Yes.

Justice Hugo L. Black: Maybe it -- maybe it is contrary to what your argument is as being imposed with me.

Do you think if the Fourth Amendment is justifying no less by for administrative warrant, then it is for a warrant by a magistrate?

Mr. Rankin: Well, no.

I think there is a different kind of a problem.

Justice Hugo L. Black: Well, why would the administration have -- administrative agents have more right to bring about the arrest of the man under the Fourth Amendment?

Another circumstance is different to what the courts -- through magistrate to him.

I don't get that.

Mr. Rankin: Well, because you have a -- a crime involves punishment.

This Court has held that deportation does not involve punishment.

Justice Hugo L. Black: But the Fourth Amendment, it talks about arrest and seizure.

It doesn't talk about punishment, does it?

Mr. Rankin: Well, I don't think that this is -- rest in that sense, although, it's taking a person in custody in order to carry out the deportation.

Justice Hugo L. Black: But was seized.

He is seized by officers.

Mr. Rankin: Yes, that's the --

Justice Hugo L. Black: Do I understand --

Mr. Rankin: -- the effect of it.

Justice Hugo L. Black: -- that the Government is -- I -- I want to get this clearly in my own mind because I have somewhat different ideas about this, the fact of the Search and Seizure Clause of the Constitution and some of the -- and some of the other.

Do I understand that the Government is taking the position here that administrative agents can issue warrant to seize a man because they say it's something administratively where they're not going to punish him that would -- would not meet the requirements of the Fourth Amendment, so far the magistrates are concern?

Mr. Rankin: Well, our argument is that you shouldn't certainly impose a more stricter rule on that kind of a warrant and an arrest where they come in lawfully under such in a warrant than you do in a criminal case and therefore, this at least complies with all of the Court's requirements in Harris and Rabinowitz for -- if this was a criminal procedure.

Justice Hugo L. Black: Well, my -- when this case came up, we brought it here, I suppose the point was the difference between -- if there was any difference between the Fourth Amendment's requirement in connection with administrative arrest or -- for deportation or anything else and any other.

Now, I can understand your argument if you are saying that under the Fourth Amendment, you had probable cause to make this arrest and that the circumstances will not search to make it unreasonable to go and arrest him without going -- to go magistrate.

But I do not in my circuits, where you can get much help from this so-called administrative warrant, nobody swore anything.

It wasn't before a magistrate and it just -- just an order from one superior to another to go arrest the man and seize him.

Mr. Rankin: Well, the same -- same factors for the search and seizure are involved in that kind of an arrest that is protection of the man making the arrest that are involved in a criminal arrest.

And so we take the position that you should not apply a stricter rule to that kind of arrest than you do to the other.

Justice Hugo L. Black: Well, I can understand that.

If that's what you're arguing, then I don't see whether the administrative warrant had anything to do with it.

If that's to be given much weight, I -- I haven't yet seen -- heard the argument which justifies it --

Mr. Rankin: Well --

Justice Hugo L. Black: -- under the Fourth Amendment.

Mr. Rankin: If you recognize that he has to be taken into custody in order to deport him like the Court has a number of times in different cases, then you have to -- it seems to me, you have to follow out just like you have in the criminal cases that there has to be some search, at least to this person, so that they don't kill the officer that's making the arrest.

Justice Hugo L. Black: You go back to the validity of the arrest --

Mr. Rankin: Yes.

Justice Hugo L. Black: -- without a warrant under the Fourth Amendment.

Mr. Rankin: Well -- but I don't want you to misunderstand me.

I will -- I am the warrant of the Immigration Service and I --

Justice Hugo L. Black: (Voice Overlap) understand.

Mr. Rankin: -- which is an authorization to take possession of this man, take him into custody.

Justice Hugo L. Black: You claim that administrative agent has a right to order somebody seized without going before a magistrate even though there's ample time, nobody doubts this ample time that they can go grab him whenever they see fit without going before magistrate and seize him and whisk him away.

Mr. Rankin: Well, that's been done for great many years when the Court has tacitly at least in the Carlson case recognized.

Justice John M. Harlan: The statute of Congress purports to authorize it.

Mr. Rankin: That's right.

Justice John M. Harlan: Your opponents don't question this case.

Mr. Rankin: No, they admit that the -- the arrest was proper.

It was conceded throughout the -- the lower courts.

Justice Felix Frankfurter: In effect of making the so-called administrative office‘s magistrate, is that right?

Mr. Rankin: Well, it's still less than a criminal proceeding.

Justice Felix Frankfurter: With the Chief Justice's permission, I must trouble you with one more question, and I think I am praying on your side as on that in this question.

The Giordenello case, let's get things straight, I will understand that if the Government or anybody else seeks to justify a judgment on a theory which would have involved examination of a witness in order to determine the validity of the theory and those such examination was made or opportunity given because the theory wasn't advanced, you can't espouse that theory in sustaining the judgment.

That's Giordenello.

You got a different doctrine which may or may not be applicable to this situation that if the record that it comes here permits sustaining a judgment which doesn't require any testimony to contradict or to qualify, but on the face of the record permits the judgment to be vindicated on a theory not advanced for anybody neither counsel or the lower court.

This Court is not debarred, indeed it -- its duty to sustain that judgment because we hear review judgments and not talk and therefore, I suggested to you, that you could sustain this judgment on any theory so not advanced heretofore subject to the qualification of the Giordenello case, namely, that it wouldn't have required examination of witnesses because in the Giordenello case, what was involved for the examination of witnesses in order to satisfy, if it could be satisfied, the requirements of Texas law.

I do not know on this record whether the second theory, the other theory, which you say you advanced here for the first time, namely, that on this record, the arrest and the search were justified, not merely on the administrative process so-called but because a crime was committed in the presence of the arresting officers and the searching officers.

If the record sustains that, then I think you'll open to sustaining it on that ground and this Court is -- is open and entitled to it, indeed must, if it can sustain the judgment below on that ground.

Those are two very different things.

Mr. Rankin: We think that the record so sustains and the record was made by the petitioner, we're calling (Voice Overlap) --

Justice Felix Frankfurter: Well, it -- it may have been by the petitioner but on the basis of the issue as shaped by the Government.

And that would -- if that is so, and the testimony might bring out a -- a different result, then you would in Giordenello, but if the record doesn't present such a situation, then Giordenello has nothing to do with the case.

Mr. Rankin: Well, I think the testimony was exhausted on that question.

Justice Felix Frankfurter: All right.

Then it isn't Giordenello.

Justice William J. Brennan: Now, what crime was being a crime or crimes that was being committed in the presence of the arresting officer?

Mr. Rankin: He was claiming to -- trying to maintain a fictitious identify and was not -- at that time had not reported and was not reporting at the moment his location in violation of the statute.

Justice William J. Brennan: Now, would that then to say that the possession of the two birth certificates or the vaccination certificate and of the bank book were evidence of the commission in the presence of officers of that crime?

Mr. Rankin: And he also stated that his name was Martin Collins.

Justice William J. Brennan: So that -- those then were the evidence of the commission in their presence of the crime you just described.

Mr. Rankin: That's right.

Justice William J. Brennan: Now, as to the code up the sleeve, what was that?

Mr. Rankin: That was evidence of the espionage.

Justice William J. Brennan: Commission of the crime of espionage.

Mr. Rankin: Yes.

Chief Justice Earl Warren: Mr. Donovan.

Argument of James B. Donovan

Mr. James B. Donovan: May it please the Court.

Although I reserved time for a reply, I'll make no detailed reply.

I believe that most of the arguments that I'd set forth are contained in my reply brief, which I commend to your earnest asserting.

However, I should like to -- to make a -- a few observations with respect to some of these matters that have been brought out this morning on questioning by the Court.

Mr. Justice Brennan, this discussion of seven items can be very misleading.

If I could direct your attention to page 41 of our brief, Appendix C, Your Honor will find that there are over 40 items involved here --

Justice William J. Brennan: Yes.

So were they all taken from the Latham, Mr. Donovan, or (Inaudible)

Mr. James B. Donovan: Either -- either, Your Honor, as you will see, that all of these items were used by the Department of Justice in the case and they were either seized in Latham or else obtained in the studio on a search warrant, which was obtained solely by residing everything found at the Latham.

So that all of these items, we believe under the decisions of this Court, are involved in this case.

That's point number one.

Our point --

Justice John M. Harlan: Were they admitted into evidence under those --

Mr. James B. Donovan: These are all set forth, Your Honor, in Appendix C.

Justice John M. Harlan: But --

Mr. James B. Donovan: Those --

Justice John M. Harlan: (Voice Overlap) admitted into evidence of the crime?

Mr. James B. Donovan: Yes, Your Honor.

Yes, Your Honor.

Justice John M. Harlan: (Voice Overlap) --

Mr. James B. Donovan: Yes, Your Honor, as exhibits and we've -- we've listed here not only -- not only on page 41, not only identification of the record where it was offered but also where received.

Now, second --

Justice Felix Frankfurter: The exhibit number, if you give the exhibit numbers, those are admitted into evidence.

Mr. James B. Donovan: Yes, Your Honor.

Justice Felix Frankfurter: All right.

Mr. James B. Donovan: Now, secondly --

Justice Charles E. Whittaker: Now, I just -- are you telling us that this exhibit shown on page (Inaudible) Appendix C.

It all takes it from petitioner's room on his (Inaudible)

Mr. James B. Donovan: Your -- Your Honor, to clarify for the Court, we have divided them into four different categories.

Item C is to the Latham which were introduced as exhibits.

Item C is to the Latham which were used to obtain the exhibits introduced.

Justice Charles E. Whittaker: Well, talking about derivative matters, now.

Mr. James B. Donovan: Well, Your Honor, these are under the decisions of this Court and of the Second Circuit.

Justice Charles E. Whittaker: Do you contend that there was taken by the I.N.S. agents from this room anything more than the two birth certificates, the vaccination certificate and the bank book and this numerical coded message?

Mr. James B. Donovan: Do they take from the room, Your Honor, they cleaned out the room.

Justice Charles E. Whittaker: (Voice Overlap) by I.N.S.

Mr. James B. Donovan: By I.N.S.

They cleaned out the room of everything -- everything that was in there, except these items which the Government say he voluntarily abandoned while, believing he was under arrest and surrounded by armed guards and so on, but he voluntarily abandoned these --

Justice Charles E. Whittaker: Then your argument that what he took, in the way of his clothing, they took.

Mr. James B. Donovan: Well, it's perfectly obvious --

Justice Charles E. Whittaker: Are you --

Mr. James B. Donovan: -- Your Honor, that --

Justice Charles E. Whittaker: Are you --

Mr. James B. Donovan: -- that someone may -- of course, someone may be helping me pack but if he has a gun on me at the same time, which is not a way to describe what he's doing to say he's helping me pack.

Justice Hugo L. Black: Then you're going to take (Inaudible)

Mr. James B. Donovan: Well, Your Honor, he was naked when he was seized.

Unknown Speaker: [Laughs]

Justice Potter Stewart: Now --

Justice Tom C. Clark: (Voice Overlap) couldn't think anymore than (Inaudible)

Mr. James B. Donovan: With respect to Justice Frankfurter's question about the Harris case, the point involved here is far more fundamental than relying on the Harris case.

I've used the Harris case, the terminology used and it's simply because that the decision of the Court is applicable.

The point here is far more fundamental.

No matter how we try to get around it, by any kind of elaborate argument, the fact remains that a man was made to disappear in the United States for three days with all its effects based on an administrative process, which is returnable to no one except the man who issues it, makes no provisions for counsel, makes no provision for search or seizure and the man is hold off to a distant place and on this evidence is convicted of a capital crime.

Now, I see that in our time, the only place that criminal procedures have been based on such a process have been in the police states of Nazi Germany, Soviet Russia on their satellites never in this country.

Now, finally, throughout this case, there's been elaborate discussion of the national defense and how that's so important with respect to this man's conviction.

But I wonder if this isn't a very unwise oversimplification of this matter.

The fact is that -- that if we look perhaps 20 years, I suggest to the Court, 25 years, when God willing, the Russian people are really free, perhaps aligned with us against Great China as a common foe.

Looking back with a benefit of hindsight, what will we see as having been the most important weapon in -- on national defense?

I think we will see what the benefit of hindsight, how important it was to keep military preparedness, how important it was to use the F.B.I. and other internal security agents to prevent suppression at home.

But I suggest to the Court that it will be found with the benefit of hindsight that the most potent weapon in our arsenal defense turns out to be our way of life.

Best epitomized perhaps in that simple phrase due process of law and it is that maintenance of that way of life, the maintenance of due process of law held before the other peoples in the world that I suggest to you in an age of intercontinental missiles with hydrogen warheads will turn out to have been a strongest weapon of defense.

I close my argument the same words with which I closed my affidavit in the District Court in commencing a proceeding to suppress this evidence, and I quote “Able is an alien charged with the capital offense of Soviet espionage.

It may seem anomalous that our constitutional guarantees protect such a man.

The 0(Inaudible) may view America's conscientious adherence to the principles of a free society as altruism so scrupulous, that self-destruction must result.

Yet our principles are engraved in the history, in the law of this land.

If the free world is not faithful to its own moral code, there remains no society for which others may hunger.

Justice Felix Frankfurter: Before you sit down, Mr. Donovan, may I ask you a question?

Sit down -- before you sit down, I'll try to --

Mr. James B. Donovan: Yes, Your Honor.

Justice Felix Frankfurter: -- only to minimize your (Inaudible) by asking a technical question.

Is there any case in this Court, I should have asked this to the Solicitor General, is there any case in this Court dealing with deportation in which this Court considered the scope of the right of search and seizure under the Fourth Amendment in relation to deportation (Voice Overlap) --

Mr. James B. Donovan: I know of none.

I know of none.

Justice Felix Frankfurter: None.

All right.

Chief Justice Earl Warren: Mr. Donovan, before you -- before you sit down, on behalf of the Court, I would like to express our appreciation to you for the service that you have rendered to the cause of justice by appearing for this defendant because we understand the situation.

He was unrepresented in the District Court and the District Judge requested the bar associations of Brooklyn and of Queens County to recommend names of lawyers who were capable of and who might be willing to conduct the defense of this man as a public service and not for compensation, that the bar associations did recommend you that the -- that the Court appointed you that you served during this long and arduous trial in the trial court.

You pursued it in the Court of Appeals and to this Court.

I -- I think I can say that in the time I have been on this Court that no man is to undertake him for that reason, for that purpose, a more arduous nor self-sacrificing service.

And we feel indebted to you and to your associate, Mr. Debevoise, for -- for having done so.

It gives us a great feeling of comfort to know that judges, trial judges and members of bar associations and members of our bar are willing to undertake this sort of public service in a type of case which would normally be offensive to them.

We thank you very much.

Mr. James B. Donovan: Thank you, Your Honor.

Chief Justice Earl Warren: And, Mr. Solicitor General, of course, as always, we -- we appreciate the -- the fervent manners in which you represent the interest of the United States of America.

Print this transcript Transcript: 

Argument of Rankin

Chief Justice Earl Warren: Mr. Solicitor General, you may proceed.

Mr. Rankin: Mr. Chief Justice, may it please the Court.

I'd like to proceed at this point briefly to call attention to the procedures in instituting an immigration deportation case.

Prior to the 1956, it was a regularly a procedure to take every petitioner or person who was to be deported into custody and you recall that the Court dealt with that a number of times.

I think the last case was in Carlson against Landon.

Now, I don't mean that the -- this question of whether it was under the Fourth Amendment was ever squarely raised before the Court and it was not, but, if you will recall that in Carlson against Landon, the issue of bail was raised and there was a division in the Court and certainly, it was said that it was a civil proceeding in that case and it was a clear implication that if there was anything wrong with it being a civil proceeding that it certainly would be raised and the Court in – back, as far as Fong Yue Ting said in -- in dicta that the Constitution as to searches and seizures and a number of other things did not apply.

Now I don't mean for a moment that this Court cannot properly now examine that question squarely, because it has not has been before the Court squarely except now with the caveat that we don't think it's properly here now.

But, it is a matter of constitutional question that the Court can always properly examine on its own unless, as we've try to point out there's some factors that does result and do result in unfairness in this particular proceeding to have it raised at this late date.

But, I want to deal with it squarely anyway and try to show that we -- we would satisfy the requirements even if the Fourth Amendment did apply.

Now --

Chief Justice Earl Warren: Well, that -- doesn't that characterization of the deportation proceeding against is a civil proceeding cut both ways insofar as the Government arguing this concern, if it is a civil proceeding, would it follow that the -- that it was contemplated that that should be able to -- should entitle the Government to -- to eliminate the necessity for search warrants to arrest for a serious crime?

Mr. Rankin: Well, I think that if there was nothing about this procedure that would require taking into custody the way it is done, then I think the incidence to that procedure that the courts have recognized that officers have a right to do, could not be recognized as proper and legal.

But taking into custody, as I see it, for a person who is being deported is just as -- has all of the elements of an arrest for a criminal proceeding insofar as the problems dealing with trying to keep that person in custody.

And that's -- that's the reason that the courts have recognized since the early English cases, that once you arrest a man, and you're going to take him into custody, you have to have certain powers to go with it.

Now, if you think -- are satisfied by our argument that they are comparable and parallel in that regard, then I think you would say regardless of how you characterize this particular proceeding, civil or quasi-civil or -- or criminal, you still have to have the power to do these, the kind of searches to protect the officers and maintain your custody that you do for any other kind of a proceeding where you have to take into custody.

Now, that's what we're trying to point out in that regard.

We think that there's no difference between the problem of the officers.

This is an extreme case because I think we could all concede that a man that's taken into custody that has for a deportation offense, but is an active spy for a foreign government would do all he could where the penalties are so great as they are for that as well as the deportation problem for him to get away.

Because, if he could get over either border, with the kind of materials that he had developed for himself to try to conceal the fact that he was not properly within the country, he would be protected against the deportation or the -- or anything else that would result from it.

So, his desire to do away with the officer or do anything he could with any kind of a weapon that he could get, seem to me would be just as great as any kind of a criminal that you would pick out.

Chief Justice Earl Warren: I was wondering what -- what your thought would be concerning what Mr. Donovan suggested that if we say that an administrative warrant of this kind was adequate to support a search such as had been made here, that it would no longer be necessary for them to use the search procedure, I mean, added to the use of search warrant procedure in any subversive cases involving aliens.

All they have -- all they have to do is just issue -- issue a deportation warrant, go in and search the place for -- for evidence of subversion and -- and entirely avoid the search and seizure clause of Constitution.

Mr. Rankin: Well, I don't think that that follows.

I think if the courts -- either Court before this or this Court was satisfied that that's all this proceeding was, that this was just a device or scheme by means of which they went in for one purpose in order to get evidence for another purpose, but then under your holdings, you'd have to hold that the search was improper, entirely.

So, he is assuming that kind of a conclusion as a justification for the legal conclusion, but if you assume it was in good faith, and that it was done for the purposes of deportation, then it seems to me it fits in as a parallel to the cases that the Court has dealt with where you go in for one purpose the mere fact that you discover all kinds of criminal evidence -- not evidence but instruments of criminality at the time you're in there lawfully, doesn't mean that the officer has to walk away and say, “I'm not interested in what anybody can do to the United States or in criminal way by reason of these instruments -- I -- I just close my eyes to those things.”

Now, the courts have said before that if you go there for -- in ordinary civil matters and you discover those particular things that are instruments of a crime or contraband, you don't have to turn your back on them and you can pick them up, but, I think his statement assumes that this is done in bad faith and if it was, then I think that your -- that Harris would -- wouldn't permit anything like that.

Chief Justice Earl Warren: But here, why couldn't --why couldn't they have said, “Now you come along with us Mr. Abel, we're going to take you into custody and then leave the officers there and -- and get a search warrant and search the place in a regular manner.

What -- what burden would that put on the Government?

Mr. Rankin: Well, there isn't any question Mr. Chief Justice but what, there was time in this case to get a search warrant.

The Government would concede that.

Chief Justice Earl Warren: But would it --

Mr. Rankin: We got what the kind they want.

Chief Justice Earl Warren: Would it (Inaudible) them in anyway by having done it?

Mr. Rankin: Well, the law doesn't require there's a difference --

Chief Justice Earl Warren: Well, and that -- that's -- that's what brings us all here and this case is taking a long --

Mr. Rankin: Well --

Chief Justice Earl Warren: -- time going through all the courts and -- and wouldn't it have been simplified and should have been simplified in this -- in this situation by the -- by them saying, “Well, we'll get a search warrant and search this place.”

Mr. Rankin: I concede Mr. Chief Justice that would simplify everything.

We probably wouldn't have the -- the lawsuit at least about that, but if this was a criminal case, in the start, as I read -- read the decisions of this Court, you wouldn't have to get a warrant even if you had time and could.

You see, that was the issue in Trupiano that the Court overruled and held that you didn't, even though you could, have to get it, if it was a criminal case.

Now, all I'm trying to say is that if we -- we deal with that as still being the law of the Court, unless the Court decides that it wants to go to some other rule, and we shouldn't have a rule that applies to this kind of a case that's less of -- it's some kind of less than a criminal case, but is more strict than a criminal, is all I say and if this was just an ordinary criminal case, or any kind of a crime, the most extreme that you could have under the laws of the United States, you wouldn't have to go and get a warrant to make the search and seizure even though you had time under the decisions of this Court, if you were properly there and if the -- there is -- items were under the control of the -- as the Court has read it, of the petitioner or the defendant.

Justice Felix Frankfurter: May I ask you, when you say there was time for a search warrant, as of what time?

Mr. Rankin: Well, I say -- before the --

Justice Felix Frankfurter: Let's say -- begin with -- beginning with the issue of the administrative warrant or there was time that -- as Judge Learned Hand (Inaudible) one of these cases that when they found these things, there was -- there was opportunity to hold him to be -- to assure that he would not escape then go out and get a search warrant while the appropriate officials took -- took care of it.

Mr. Rankin: And Mr. Justice --

Justice Felix Frankfurter: Which one -- which one do you mean?

Mr. Rankin: Mr. Justice Frankfurter, I concede there was time at the time they got the administrative warrant, before they went there.

Now, after that, I think everything points to the fact that whatever was there would have disappeared.

We have proof that this man tried to slip up his sleeves, and the only purpose was concealment, a very important evidence of his or instrument of his activity as an espionage agent.

It was communications.

Chief Justice Earl Warren: Well, you had four -- you had four officers there, did you not?

You had two FBI officers and two -- two immigration officers.

You had just one man involved and he was -- he was under arrest.

If you had taken him out of the room and any place, any place you wanted to take him after he was under arrest, how could anything has happened while he was getting searched with the warrant?

Mr. Rankin: Well, after we had him -- had taken him away under our custody, we certainly could have controlled anything that he would not -- have not been able to conceal.

But you --

Chief Justice Earl Warren: Well, they did handcuff him even when he was there right in the room, what could it -- they have done with four officers there?

Mr. Rankin: Nothing.

Justice Felix Frankfurter: Your position is, you relied on the decisions of this Court?

Mr. Rankin: Well, that's -- that's what it -- the Court's position has been at all times that if they're lawfully there, up to Trupiano, and in Trupiano the Court said, “If you have time, you've got to go out and get it” and after the -- and then the Court to expressly overrule Trupiano, and said that you don't have to get it if you have -- if you're lawfully there.

And I would think that in a case of this kind that's less than a full criminal case, under the decisions of the Court, you wouldn't expect the officers to go out and do that.

Now, I don't say they -- it -- it was physically possible or couldn't be done.

Chief Justice Earl Warren: How about the entry into the room of the FBI agents?

Did they --

Mr. Rankin: Well --

Chief Justice Earl Warren: Did they have -- did they go in to execute that warrant, the administrative warrant or did they just force their way into the room as being argued by Mr. Donovan?

Mr. Rankin: Well, we don't -- the Government doesn't think that they forced their way into the room.

They came to the door, and at that point, they had more than reasonable cause.

They had a prima facie case which is what is required from immigration cases, it's substantially more than probable cause which is enough for an arrest and at the door, they didn't break the door in at all.

They rapped on the door and asked him if they could come in and he didn't invite them in but they went on in.

Now, there was --

Chief Justice Earl Warren: But they used a little stronger language than that, didn't they?

Didn't they say they forced their way in -- or -- or perhaps pushed their way in?

Mr. Rankin: I think that their construction of it is pushed their in --

Chief Justice Earl Warren: Pushed their way in.

Mr. Rankin: -- and -- and went into the room and I -- I didn't conceive of it as being a forceful entry under the decisions of the Court.

It seemed to me that that's more like your cases where the door is closed and they break even though there is a screen door if you recall the case, they broke the catch on the door and went on in or they break in the room and so forth.

And I --

Chief Justice Earl Warren: But this was before -- this was before you -- you did anything to execute the -- the deportation warrant.

Mr. Rankin: Well, that's right, but if under your decisions, if you have probable cause, you have a right go in and arrest.

Chief Justice Earl Warren: But then you base -- then you base your argument not on the -- on the -- the warrant of deportation, but on the knowledge that the FBI agents had when they pushed their way into the room, was that a right?

Mr. Rankin: Both -- both Mr. Chief Justice because --

Chief Justice Earl Warren: That you have to -- you rely on -- on the knowledge they have and the information they have at the time they knocked on the door and pushed their way into the room.

Mr. Rankin: I can only rely on that as far as satisfying the requirements of the Fourth Amendment because the statute requires that there be an administrative warrant.

Chief Justice Earl Warren: But that wasn't being executed at the time.

Those people were deliberately left at a distance away from -- from him and it was only after they have arrested the man that they went -- went and told that the immigration people, “Now you can -- you can come in with your warrant,” isn't that right?

Mr. Rankin: No, I wouldn't concede that was an arrest at that point.

They hadn't taken him into custody at all.

They -- the FBI people didn't at all take him into custody, arrest him or say that they arrested him or purport to hold him on anything.

If you recall they said to him, “Are you so and so?

We believe we know these things about you” and they made inquiries to him.

Chief Justice Earl Warren: For how long?

Mr. Rankin: For half an hour.

Now they could do that with anybody lawfully unless --

Chief Justice Earl Warren: Did they -- could have left anytime he wanted?

Mr. Rankin: No, because at -- when they got through, they said, “You're going to be arrested before you leave this room,” but they --

Chief Justice Earl Warren: And that was before the -- the other warrant was executed?

Mr. Rankin: Yes.

That was immediately the immigration people came in and served it on him (Inaudible)

Justice Charles E. Whittaker: Well, (Inaudible) to understand how important, you see the other warrant, well had there been any other warrant before the one served by the immigration officers?

Mr. Rankin: No, but the Chief Justice was asking about the warrant I think and we were saying --

Chief Justice Earl Warren: The -- the administrative warrant --

Mr. Rankin: Yes.

Chief Justice Earl Warren: -- is the one that I was talking about.

Mr. Rankin: And said that during this half hour, wasn't their arrest.

Now, I didn't -- I don't conceive of that as being an arrest of this man.

If he had tried to leave, I think that they would have -- the immigration people would have picked him up under their warrant right then or that I --

Justice Charles E. Whittaker: Then you bring, if I may ask, that is your thought to be suppressed or claim to have been seized by the FBI during that 30-minute interview or period?

Mr. Rankin: Well, there wasn't.

None of them were.

None of them were involved.

They were all found and seized after that event.

And as you recall, that that occurred because the FBI asked if they could have a time to see if he would cooperate with them.

And they want to discuss the matter with him.

Now, he -- there isn't any evidence that he had any time asked if he could leave or whether he was being restrained or anything of that character.

There is evidence although --

Justice Charles E. Whittaker: Was -- was there any search made or anything at all taken into possession prior to the time the immigration officials served this administrative arrest warrant?

Mr. Rankin: No, there was not.

All of the search was after that and there was nothing in a way of search while he was down in Texas, either and in that regard, I want to say that -- well, they say that he was kept incommunicado.

That is not an accurate statement of what the record shows.

The record is clear that he was told at the time that the order to show cause was served upon him and that he was taken into custody that he had a right to have a lawyer.

He never asked for a lawyer at anytime until three days after he was down in McAllen, Texas.

And immediately upon his asking for it, he was given a telephone book and made a communication and got the lawyer of his selection.

And that lawyer represented him in the proceeding from that time on.

Justice Felix Frankfurter: Since you're on -- since you're in Texas, before you leave Texas, could you please state to us -- in Texas during his sojourn in Texas, there were any searches and seizures.

I'm not now addressing myself whether they were illegal or not.

Was there anything taken from him, against his wish either implied or explicit which was introduced in evidence of the trial or were there any communications made by him to any of the officers which could -- he could have resisted upon, proposed the introduction of the trial as being coerced confession which affected the (Inaudible)

Mr. Rankin: There were none of those things in regard to anything that's in issue here.

I can't say clearly that there weren't -- there wasn't some kind of search of his belongings later --

Justice Felix Frankfurter: I don't care what took place, both accepting it was resisted at the trial either by a motion to suppress or an objection to an offer heard inside the Government?

Mr. Rankin: We think there were none.

Justice Felix Frankfurter: None, all right.

Justice Potter Stewart: Including any oral statement that they may have made in Texas?

Mr. Rankin: Those are all statements that he made in -- no they were statements during the hearing only represented by counsel and there was no objection to them at anytime.

Justice Potter Stewart: And in that hearing, he -- he admitted he was a Russian illegally in this country?

Mr. Rankin: That's right and -- and when that was introduced to the hearing there was no objection to it at the trial.

Justice Charles E. Whittaker: Mr. Solicitor, I would like to know what happened with respect to items in the suitcase other than these two birth certificates, the vaccination certificate and the bank book and the three pieces of paper that he was putting up his sleeve.

Now, the rest of this material in the room was put in the suitcases.

Mr. Rankin: Yes.

Justice Charles E. Whittaker: And was taken out with him.

Now, was there a motion to suppress other things?

Did the motion contain a list of the other things and seek to suppress them?

Mr. Rankin: The motion was much broader than the seven items at the time.

And then, he -- during the argument as we presented in our first brief, he took the seven items and said those were the ones he was relying on.

And the -- all of the items that were taken were offered back to him except the seven items at various times but he indicated that he had no place to keep them and at one time and that he'd rather we -- the Government kept them until such time as he was able to --

Justice Charles E. Whittaker: Was the motion to suppress sustained as to all items except these seven?

Or were they withdrawn from the motion or what happened?

Mr. Rankin: They were never used anyway.

The seven were the only ones that were -- that were involved that were ever used.

So that, the only issue of law that could be in the case would be the seven items that were used in the case against him.

I'm advised that all except 16 of the items were removed by stipulation by --

Justice Charles E. Whittaker: Removed from the motion to suppress?

Mr. Rankin: From the motion to suppress and that the only items that were introduced against him were the seven and those are the only ones that could involve any error as far he is concerned.

Now, if we were required to meet the -- the requirements or conform to the requirements of the Fourth Amendment, in regard to searches and seizures, then it's a question of whether we were lawfully in the room at the time just prior to the search and that question is determined by whether or not we have we had probable cause to make the arrest.

Under the decisions of this Court, if you have probable cause and the most recent one is Draper, then, you have a right to proceed from that point.

Now, we had more than probable cause at all times for every officer that had anything to do with this matter, prior to the time that he came up there to make the arrest.

We had a prima facie case and that's the requirement of the Immigration Act and as the regulations and instructions provide and we had it in this case and this Court has said a prima facie case is more than probable cause because the prima facie case, if not rebutted, establishes the case and probable cause is merely what a reasonable person would have probable cause to believe that crime was committed.

Justice Potter Stewart: You're talking about the prima facie case for deportation?

Mr. Rankin: That's right.

Justice Potter Stewart: In answer to a question of Justice Harlan's before lunch, you reminded us that the failure to advice the -- was it the Secretary of State or Attorney -- Attorney General or at least his presence, is not only subjects him to deportation but also a misdemeanor –

Mr. Rankin: Yes Mr. Justice --

Justice Potter Stewart: -- under the statute, under the criminal statute?

Would that certainly insofar as the misdemeanor goes, an administrative arrest warrant wouldn't be sufficient to entitle these agents to enter his room and arrest him, would it?

Mr. Rankin: No, Mr. Justice, but if you had a -- and there is no requirement for a warrant of any kind for the immigration officers if they are going to arrest for a misdemeanor.

There's no provision about it.

There's a provision in regard to arresting for a felony or for deportation.

Justice Potter Stewart: In -- in order to arrest for felony, they couldn't certainly do it under an administrative warrant, could they?

Mr. Rankin: No, because the statute is too explicit about requiring a warrant from the immigration officers and the same is true if we're going to arrest and take into custody for the purposes of deportation.

So, since there is no provision under the statute, you look to what the provisions of state law are in regard to it and in that case, if the crime is being committed in your presence, then you have the right to arrest, the officers in the same position as the position of the citizen.

Justice Potter Stewart: As a private person.

Mr. Rankin: That's right.

Justice Potter Stewart: Under the law of New York.

Mr. Rankin: That's right, in New York.

Justice Potter Stewart: But the law of New York wouldn't entitle a private person to go up and knock on the door and go in a man's room and see whether or not a crime were being committed in his presence, would he?

Mr. Rankin: No.

Justice Felix Frankfurter: But he could knock on the door and he could let him in.

Mr. Rankin: If he's knocked on the door and he was let in and the man was then engaged in committing a crime, the law would certainly permit him to --

Justice Potter Stewart: But would the law permit him to visit the man's hotel room for the very purpose and so -- only purpose of seeing whether or not the crime was being -- was going to be committed in his presence?

Mr. Rankin: I don't know as to that.

I don't think that's quite the case.

I think that there was involved in knocking on his door the inquiry that the FBI wanted first to make as to whether he would cooperate and I think they could ask that of any person, a citizen or alien in the country whether it's a reasonable inquiry and I don't see why they couldn't come and if he didn't want to talk to them he could say so and say, “Get out” and they did toss to this --

Justice Potter Stewart: That's -- that's the visit by the FBI --

Mr. Rankin: That's right.

Justice Potter Stewart: -- and -- and the half hour conversation?

Mr. Rankin: And then the door was opened and the INS people went in there and this was a continuing crime of not advising the Attorney General of where he was under the statute, and since it was continuing crime it was being committed in their presence and was ample ground for them to make the arrest and everything proceeds from that.

They were lawfully there.

So, if you assume that a prima facie case is that this Court has said more than probable cause, then the immigration warrant for deportation requires more in that regard than would be required for an arrest that this Court has recognized would allow this kind of search and seizure in any event and they had ample evidence of it.

They had all the testimony of the statement of Hayhanen -- Hayhanen about this man being a spy in his background and the various activities and they have this FBI statement that gives in detail his various activities.

They have the statement that he purported to be, that he was an alien and purported to be a citizen.

They searched the records at -- when this was brought to their attention and found that the record showed that he hadn't made any report to the Attorney General.

They had that proof that he had not complied with the law in that regard --

Justice Charles E. Whittaker: As I understand (Inaudible) was to obtain evidence of espionage.

Now, that is tried out?

Mr. Rankin: Yes, that issue was tried out in at great -- in great detail and both lower courts found against him on it.

Justice Charles E. Whittaker: On --

Mr. Rankin: On a good faith.

Justice Charles E. Whittaker: On contested evidence?

Mr. Rankin: That's right.

He had every opportunity to produce his proof and did and the Government introduced its proof and it was found against him on that issue of good faith in both lower courts.

Justice Charles E. Whittaker: And you would concede that isn't it that if the contents of his argument were not true, would that -- would the search would be valid?

Mr. Rankin: Well, it seems to me that Harris decides that, but if there's bad faith, if you're really using an arrest as a device to try to get evidence that it would be unlawful and that it's only when you act in good faith, that's a prerequisite.

Then after you proceed in good faith, if you find instrumentalities of the crime, in contraband and those things that you don't have to “turn around and close your eyes to them and go away.”

That you can take them and --

Justice Charles E. Whittaker: If I understand your argument, (Inaudible) that for one type of evidence and you record in this (Inaudible) you got one to other evidence and made it other times, you may take that lawfully also?

Mr. Rankin: Well I -- I just -- in answer to your question, I have to -- do not concede the word evidence because the Court has said that it has to be instrumentalities of the crime and these all were, these seven items.

So, conceding that, there's no question under the decisions with what -- once you're lawfully there and you try to make a search that is within the area of -- under the control of the petitioner or the defendant, then, any instrumentalities like crime and contraband or weapons or other means of escape are lawful to search for and to seize.

Justice Charles E. Whittaker: So, is the crime lawfully there like the right response or it resulted to the arrest which still happened to be lawful?

Mr. Rankin: Oh, yes.

I -- I was trying to include that within the lawfully there.

I -- I -- you have to be able to make the arrest.

You have to have probable cause for believing a crime has been committed.

Justice Charles E. Whittaker: Crime, it has to be crime?

Mr. Rankin: Or the act.

Justice Charles E. Whittaker: And public wrong?

Mr. Rankin: I think the public wrong is enough under Davis and Zep.

That you then have a right to search the person and what's within his control and you have the right to seize -- those are two factors anything that's an instrumentality to the crime or contraband or a means of escape.

Now, I do -- would like to call the Court's attention to the fact that the Government is not in a -- unfair or bad position in regard to the procedures in regard to deportation action.

That it is a fair proceeding that since 1956 only, arrests have been only instituted in cases where it's either necessary or desirable under the regulations and that has to be decided by the District Director or his deputy and obviously, a case like this is one where that we would certainly agree that was both necessary and desirable to take into custody anybody who was then engaged in espionage activities.

But, and in addition to that, there has to be a prima facie case instead of -- case of only probable cause.

So, then an effort has been made by the Congress and the Government to have a completely fair proceeding in regard to deportation matters.

And this Court has not squarely passed upon that but in Carlson against Landon, the Court did say that it was obvious that if you're going to deport a man, you'll have to take him into custody and refer to the statute where the Attorney General was given that power to act under an administrative warrant and didn't squarely pass on it but certainly by inference, recognized that it was a valid procedure.

Justice William J. Brennan: May I ask Mr. Solicitor General, to the extent that you were relying upon a crime being committed in the presence of the officers, this presupposes a lawful entity for the purposes of making an arrest, does it?

Mr. Rankin: Yes.

Justice William J. Brennan: In other words, could any of this had happened if they had not entered the room for the purposes of making an arrest to the extent you rely on the crime being committed in their presence as justifying the arrest?

Mr. Rankin: Mr. Justice, I can answer that that if none of it could be except that if I -- I think there is the aspect that if you invite me into your house and I -- happen to be an officer, and I visit with you awhile, and then see anything that you're doing is unlawful, I haven't committed any wrong up to the time as long as you're not putting me up.

Justice William J. Brennan: Well, suppose -- suppose though one is invited in and the officer invited in doesn't know that this chap is an alien illegally in the United States somehow under these you've picked up aren't the issue here.

Later, the Government learns that in fact this fellow was an alien illegally in the United States.

May you then justify picking these things and using him an evidence on the ground that well in fact he was committing a crime in the presence of the officer or the officer didn't know it?

Mr. Rankin: Oh, no.

You've got to have the probable cause when -- when you try to arrest him, at that time, you've got to have sufficient probable cause.

I think the case of the Court in regard to smelling the heroine out in the hall is exactly that kind of thing where they were going to guess about who might be there and there was only one man in the room.

They found out later that they -- there could have been many other aspects but in this case, it seems to us it is different or when they were there, they knew all these things.

Justice William J. Brennan: But, I was trying get clear is that your position then is that there must be knowledge on the part of the arresting officer that the crime is being committed in his presence?

Mr. Rankin: That's right.

And he has --

Justice William J. Brennan: And the only way that knowledge existed here was that they had foreknowledge that he probably was the agent masquerading as Goldfus and Collins, isn't that it?

Mr. Rankin: Well, they also knew that before that that they had searched the records and they found the express element of the crime that he had not reported his address you see.

That is what the --

Justice William J. Brennan: They knew that at time they entered the room?

Mr. Rankin: That's right.

Justice William J. Brennan: So, your whole argument then is premised on their actual knowledge that this particular individual had not registered and therefore while in the presence of the officers, he was still committing that same crime?

Mr. Rankin: That's right.

He was continuing not to register and that was the -- that's a continuing crime in accordance with the other holdings of the case of the Court along the same line.

Justice William J. Brennan: What does the record show they had checked in fact, whether a Martin Collins had registered or whether an Emil Goldfus had registered?

Mr. Rankin: They've checked according to the record, a Martin Collins, Emil Goldfus and Abel.

Justice William J. Brennan: All three?

Mr. Rankin: That's what Noto said they checked the records there.

Justice Potter Stewart: Because Martin Collins – if there was such a person was supposedly born in this country and was a citizen.

Mr. Rankin: That's right.

Justice Potter Stewart: And the same is true of Goldfus.

Mr. Rankin: Yes.

Justice Potter Stewart: So I don't --

Mr. Rankin: Of course that I think --

Justice Potter Stewart: This is a (Inaudible) proposition, isn't it?

Mr. Rankin: Well, I think well, Abel too, but I think they are entitled to a presumption that this man wouldn't register.

Justice William J. Brennan: Well, this is based on the fact that --

Mr. Rankin: But this --

Justice William J. Brennan: They knew he was Abel not that he was using the name Collins or Goldfus or that he was Collins or Goldfus.

Mr. Rankin: And they examined the records for all three according to the record and they found that he -- that he hadn't registered under any of them.

Now, if they'd -- if he had registered on under Martin Collins and they could identify him, it would -- that -- it might have been an offense because it couldn't be properly --

Justice William J. Brennan: Well, he had in fact the Martin Collins, he wouldn't have to register because then he would have been an American-born citizen.

Mr. Rankin: That's right.

Justice William J. Brennan: And if he'd in fact been Goldfus, he would not have had to register.

Mr. Rankin: That's right.

Justice William J. Brennan: So, it must have rested on the fact that one Abel hadn't registered, was it not?

Mr. Rankin: Yes.

And the further fact that they -- that record is clear that they did search the record for each of those.

Justice Potter Stewart: And how -- how did they know about the name Abel by this time because Hayhanen only knew this man as Mark, didn't he?

Mr. Rankin: The record says they searched for Abel, Martin Collins and Goldfus.

That's --

Justice Potter Stewart: Is there any indication any where has to -- that anybody knew this man's true name was Abel or one of his names is Abel?

Mr. Rankin: I'm not clear as whether the FBI did at that time.

But --

Justice Potter Stewart: It's not in this report?

Mr. Rankin: No.

Justice William J. Brennan: Well, is it in this record, there is a testimony in this record that whoever it was and said he might be --

Mr. Rankin: He had in the testimony of Mr. Noto, who said he --

Justice William J. Brennan: Mr. what?

Mr. Rankin: Noto.

N-o-t-o, who said he searched for each of these three names and how he made that search is not explained.

I do think if they had thought there was some discrepancy on -- in regard to that, it was up to them to bring it out and show what -- how he happened to know because it's very clear that he made a search according to his testimony and it's uncontradicted.

I think the fact that this was not properly developed before the lower court is an important problem in this case and that the Court should give serious consideration to.

I tried to point out the fact that the legality of the rest was not raised.

In fact, they conceded that it was the duty of the Immigration Service to make the arrest.

But also the -- the handling of the case could have been much different and the Government could have either had the -- the Court could have excluded these items from the record and then we wouldn't have this problem here.

Or, if they failed to -- if the Court failed to do it, then the Government could have done it in light of the overwhelming evidence that they had and avoided any complaint of error at this point.

The seven items are a very small part of the case.

We -- the Government concedes that the three items or two in the waste basket, and the one he tried to slip up to his sleeve, would be prejudicial because those are the very kind of things that espionage agents use, the alienage materials that he had which were the spurious and fictitious birth certificates including another vaccination certificate and the savings bank book were all cumulative.

The Government had overwhelming evidence in regard to all of those different activities prior to the time that there was -- the search was made for those and the seizure was made.

They had the knowledge of his bank account that he had a ledger account, that he had signature cards under the name Goldfus.

They had knowledge of the fact that -- and they've proved all this in the case.

That he was renting and had lease on the 14th Street property under the name of Goldfus.

They had the evidence with regard to the Latham Hotel in fact that he rented or took that room under the name of Collins.

They had the fact that all the testimony of Hayhanen about his activities as both Gold -- Goldfus and Collins.

They had the fact that he had suggested to Hayhanen that he would procure for him and did procure a fictitious birth certificate for him that could be used to conceal the fact that he was, that Hayhanen was illegally within the country.

They had Hayhanen's statements to them that the petitioner was illegally in the country and had told him so that he had these means by which to try to establish his identity -- identity as a citizen if the question came up.

They had the statements of Hayhanen that he -- could escape across the border if the question came up as to the fact that he was illegally within the country as an alien.

All of those things, they had in proof in the trial.

Now, I'm not saying that these weren't of some evidence, but I don't think they added very much when you add all the evidence that the Government had in regard with alienage question and his activities as far as these four items that were not obtained from the waste basket or from his sleeve.

So that --

Justice Potter Stewart: Does the record show how and when they got into the waste basket?

Mr. Rankin: After he left -- that the record is clear that after they left, the FBI went to the manager of the hotel and asked Kehoe to search the waste basket in the room and they proceeded to do it and these items were items that were concealed as you probably recall from the record the code book and the microfilm were contained in the -- in this pencil that could be taken apart and the sand -- sanding block that could be taken apart.

So, they had to take these items which were not obviously contraband or instruments of illegal action and take them and examine them in a laboratory to see how they could be -- whether they can be taken apart and just how because it was very skillfully done.

They also had of course evidence of this petitioner's using these kinds of instruments, a large number of them.

In regard to communications, they found in one of the drops the -- one of the messages that he had sent but nobody picked up and it just happened that someone apparently of the park people had cemented over the place where the drop was left and this bolt that could be taken apart that have been left there with the message in it but apparently it was a message between Hayhanen and the petitioner in regards to some of their activities.

So, that they had all of that -- that evidence in regard to this case to just add these items on to.

Now, it seems obvious to the Government that to us in behalf of the Government that if there was a serious question raised about whether there was probable cause or whether the arrest could be made at that time and they have brought it up with the -- all of these issues about the Fourth Amendment and so forth that it would not have been wise and that the Government would have -- would not have proceeded to use those items when it had so much other evidence in this case of the espionage activities and everything else.

And so, then, we come to the question of whether the Court can properly examine and of course I concede that the Court can always examine a constitutional question, but in regard to a matter of this kind, whether it's properly here, you said in the past that unless it was a constitutional question where you think that it will reflect unfairly as to the conduct of judicial proceedings, or if it's an obvious misconstruction of the law, and matters of that kind that you would not go back and examine here errors that were not properly called to the attention of the lower courts.

And you said the reason for that is that it's unfair that the litigants should raise their questions before the lower courts so they have an opportunity to pass upon them, and also it's in the public interest to try to settle these matters without having them go on indefinitely.

And there isn't any reason why these questions couldn't have been properly raised in the lower court if they had seen fit.

So, we think that that alone will be accumulative character of this evidence, the -- such positions are not properly raised here and should not be considered because they are not developed in this Court under the rules that you have generally adhered to with regard to such matters.

Justice Felix Frankfurter: May I come to you in some of the -- not to summarize but to deal in particularity with the four so-called identifying items bearing on the illegal search and seizure (Inaudible) just whether those four documents were when -- where they were when the officer entered the room and of course by reaching the place from which they came into their possession.

Mr. Rankin: Mr. Justice Frankfurter, I --I can't answer that question.

It wasn't developed in the evidence with specificity so that I could tell you just where they came from.

Justice Felix Frankfurter: Do you think that for the -- in the -- does the record show whether they were in the room in which the transactions -- or in which they were present or in some -- they were in the bathroom or bedroom, or whatever.

Mr. Rankin: I think the record fairly shows that they must have been in the room rather then the bathroom because the record is quite clear that there are only some small items like paints and so forth on the window sill of the bathroom.

Justice Felix Frankfurter: But, what does appear from the records to show the -- the spatial relation in the room that they faced, between those documents and the officers when they took hold of them?

Mr. Rankin: I just have to try to conclude from the records generally that they were in the room and they were in some of this closing -- clothing that they packed.

Justice Felix Frankfurter: And did they come up on them as they put the clothing in the suitcase or trunk?

Mr. Rankin: That isn't clearly developed.

Justice William O. Douglas: I understand that they -- about two of them later as they were going through the suitcase, after they had taken him to the headquarters and two of them from the (Inaudible)

Mr. Rankin: I think there is some evidence that one may examine it --

Justice William O. Douglas: We're talking about the first four that you (Inaudible)

Mr. Rankin: That, yes.

Justice William O. Douglas: -- (Voice overlap)

Mr. Rankin: At the headquarters that there were two of them.

Whether they came under those in the room is not developed in the evidence.

Justice Felix Frankfurter: In the -- the evidence doesn't disclose there wasn't -- that they came into the possession of the officers through an active search of the premises.

Can you answer that?

Was there an active search which resulted in the discovery in those three -- in the subsequent seizure of these documents?

Mr. Rankin: Well, I think with the two up at the headquarters, there was an active search.

Justice Felix Frankfurter: Well, after the -- after the baggage was there?

Mr. Rankin: Yes.

But --

Justice Felix Frankfurter: Was there in the room -- was there a search in the room -- was there a search out of the room?

The officer which disclosed the existence of documents which the officers then took hold off.

Mr. Rankin: The --

Justice Felix Frankfurter: Is that developed in the record?

Mr. Rankin: As -- as I read the record, they didn't discover these documents until they started to tracking them up and went through them.

Now, there was evidence that there was --

Justice Felix Frankfurter: And they didn't do with the tracking, I am treading on dangerous territories, they did do the tracking after they asked his wishes about it, didn't they?

Mr. Rankin: Yes.

Now, that they did make a search of the closet as I understand the record before they found any of them, but they didn't find it then.

Justice Felix Frankfurter: Even in the mouth of the closet that these four documents or any of them.

They didn't come out of the closet.

To their conscious knowledge they didn't come out of the closet in some clothing they took.

I bother you with these questions because for reasons that you (Inaudible) the mind -- you know the attitude about these problems.

Mr. Rankin: As I read the record Mr. Justice, I didn't find that they were -- and they found them in their search of the closet.

But I -- I thought they did find them when they helped him pack up.

Justice Felix Frankfurter: But there wasn't -- can you -- can you say this even at the risk of boring repetition, there wasn't a claim made by the defendant below that in fact there was a search of the room and in the course of that search, they came upon these documents.

Was that claim made explicitly like that below?

Mr. Rankin: Well, I think they have made very clear claim that the room was searched.

And that to choose -- the -- record of the search they found these documents.

Justice Felix Frankfurter: Yes.

Mr. Rankin: Now, the issue was that we claim that he asked -- he was asked whether he wanted to leave and they offered to help him pack and they did.

And they went through his things as they packed, but I think there is evidence also that the officers went through the closet before they could --

Justice Felix Frankfurter: Is there evidence that these -- these papers were the fruit of that closet search?

Mr. Rankin: No, I don't think so.

Now, we did --

Chief Justice Earl Warren: The items -- General, were the items they took from the waste basket, did it take them in the course of the search or in the course of helping him pack up?

Mr. Rankin: No, they were taken after he left and after they got permission of the manager to search the place after he'd given up the room.

We do take the position, the Government does that any discrepancies in clarifying where it was and if the search was beyond or the seizure beyond where it should have been, the burden would be on the petitioner to show that in support of his action that if he left some loophole as to what really happened, that might be helpful to him, he should have moved forward and proved it.

Chief Justice Earl Warren: Mr. Donovan, you may proceed with your argument.

Argument of James B. Donovan

Mr. James B. Donovan: Mr. Chief Justice, may it please the Court.

I intend to make no details of why, but nevertheless, there are I think a variety of matters here that should be cleared up because at certain times this afternoon I was gradually coming to the impression that I was in three other cases.

Now in the first place, Mr. Chief Justice, with respect to this time within which to get a warrant, you will find that Appendix B in our principal brief makes very clear that they had over a month in which to obtain a warrant because over a month before this they not only had Hayhanen's testimony but had corroboration from what was --

Justice William O. Douglas: That was the Solicitor General (Inaudible)

Mr. James B. Donovan: Next Your Honor, with respect to his being advised that he could have counsel, you will find that such a statement was made but no statement as to when he could have the counsel.

You will find that in the appendix to our reply brief, we carefully set forth the citation to the provision of these regulations and the warrant makes this also clear that under the existing rules, this right to counsel is the right to be represented later at the formal proceeding.

Justice Felix Frankfurter: Was there any -- wasn't he told that he could have counsel was there no telling?

Mr. James B. Donovan: So far -- so far as this record shows, Your Honor, you will find that this statement he was told he could have counsel but not as to when he could have counsel and I'm explaining that under that customary procedures which I've cited in the appendix, it's in a from of regulation.

Justice Felix Frankfurter: Was there a witness that -- who testified that he was told he could have counsel?

Mr. James B. Donovan: A man from Immigration and Naturalization, Your Honor.

They agreed --

Justice Felix Frankfurter: At the trial -- at the trial?

Mr. James B. Donovan: At -- at the hearing which preceded the trial.

Justice Felix Frankfurter: And was there a -- lawyer in person?

Did it -- Abel have a lawyer?

Mr. James B. Donovan: Well, I'm beginning to wonder about that, Your Honor.

If the -- several of these discussions --

Justice Felix Frankfurter: You have to know that

Mr. James B. Donovan: (Voice overlap) have to know that I --

Justice Felix Frankfurter: (Voice overlap)

Mr. James B. Donovan: The answer is yes.

Justice Felix Frankfurter: Now you got one now, haven't you?

Mr. James B. Donovan: The answer is yes and he got a lawyer that made everyone of these points.

Justice Felix Frankfurter: Now, what do we want to know --

Mr. James B. Donovan: -- with a (Voice overlap) great difficulty in the Court below I'd like to call to your attention that one of my four points of certiorari was that the conduct of the Court below including the difficulties of the defense was such as to exercise or call for an exercise of this Court's supervisory jurisdiction.

Justice Felix Frankfurter: Now, let's get back to the question that he was told that he could have a lawyer.

Where do I find that in the record?

Mr. James B. Donovan: It's --

Justice Felix Frankfurter: Not the regulation, but the testimony.

Mr. James B. Donovan: I believe it was when Mr. Maroney was examined by one of the INS agents.

A question was asked was he told.

And this was corroborated by one of the FBI agents.

But I'm just pointing out Your Honor that under this regulation, it says, “Notice of right to counsel and release from custody.

On service of the warrant of arrest, the alien shall be advised of his right to representation by counsel, at no expense to the Government at the hearing to be held under the warrant of arrest.”

And so too, as amended that this so far as I know is still a procedure.

This again Justice Harlan, in the event of a deportation proceeding, this again would be something that would have to be brought into a great detail, but I'm just -- just pointing that out and with respect to his knowing his rights under these circumstances of course is absurd.

Now this argument, Justice Brennan, about the fact that a crime was being committed in the presence of the arresting officers, this isn't a fraud and this -- this is a new thought in the Government side.

This cuts two ways because if that was so, under the Harris case, they had a great duty to have with that foreknowledge to have obtained a warrant for the man's arrest.

Now, with respect to how general was the seizure, I can't make it more unqualified than this.

They seized everything belonging to that man in that room.

Every one of his possessions and after leaving, came back and searched the waste paper basket.

There could be no more general a seizure than was made, that's number one.

Number two, to what did I object?

You will find that the papers that I drew at that time objected to every item which they seized.

Now, before this -- the trial commenced, Judge Byers in what's a perfect normal thing, said, “Well, with how many items are we dealing?”

He had hundreds of paintings for example.

“Are all these involved in this motion?

It would aid me if counsel could agree as to what are involved.”

Whereupon, the Government said, “Well this is involved, this isn't so.”

Now, what's involved in the question before this Court?

In Appendix C, on page 41 of my principal brief, I made reference to this on the original argument.

We have set forth for the convenience of the Court, dozens and dozens of items that are involved in this question and as to every one of those items, there is a -- there is a question embraced under my original motion and I have never withdrawn one contention in this respect as from the first day that I commenced to proceed.

We divided these items for your convenience into one.

Item C is at the Latham which were introduced as exhibits of the espionage trial.

We've given a page number where they were identified the page number were received.

(B) item (c) is at the Latham which were used to obtain exhibits introduced at the espionage trial.

Item C, additional item C is at the Latham concerning which testimony was offered at the espionage trial.

And finally item C is at the Latham which were used by the Department of Justice to procure a search warrant for espionage materials.

And then finally, several other items all of which were identified and received at the trial, it's this whole mass of evidence that we're dealing with.

And this discussion about five items or seven items is -- is in my judgment absurd.

Justice John M. Harlan: (Inaudible)

Mr. James B. Donovan: I beg your pardon?

Justice John M. Harlan: Was anything you except for that trial?

Mr. James B. Donovan: Your Honor, all of these was used.

In Appendix C, I've given page number of when it was identified and when it was received in evidence.

We're talking about several hundred items.

Justice Felix Frankfurter: Would you mind indicating your (Inaudible) what there is about the seven items that makes the Government club them together and so they constitute a separate class?

Mr. James B. Donovan: Well, it obviously is the argument which was given to the Circuit Court and the Circuit Court adopted that this is a little evidence.

This is just a little evidence.

There were only seven items.

And --

Justice Felix Frankfurter: Why is it a seven, why not six or nine?

Mr. James B. Donovan: Your Honor, I'm not responsible for computation.

I'm just explaining that without contradiction by the Government, we spent weeks compiling all these items.

Justice William O. Douglas: Well, these seven are the only ones that were offered in evidence (Inaudible)

Mr. James B. Donovan: That's not true, Your Honor.

Justice William O. Douglas: But your items are in there are -- that you are referring to now are two of the categories as I read it best.

First, those items have been used to obtain from the Circuit Court and other items and secondly, those items are that were seized by the agents or officers of the United States had testified during the trial?

Mr. James B. Donovan: And that is correct.

In other words --

Justice William O. Douglas: There were only seven introduced in the evidence.

Mr. James B. Donovan: But -- but Your Honor, the -- the -- this massive evidence was obtained by using search warrants which are in the record, which were obtained on the basis of reciting everything that was seized at the Hotel Latham.

So under established decisions of this Court, they are involved just as much as those original.

Justice John M. Harlan: (Inaudible) only items that were received in evidence of the trial is -- of which he was convicted was the seven items we've been talking about?

Mr. James B. Donovan: Let me explain, Your Honor.

They -- they first made this general seizure.

We can talk about the seven items that were in that hotel room.

Then armed with the information obtained as the result of what I contend as an illegal search and seizure, they went and got several search warrants over in the Eastern District of New York and used these to go through his studio over in Brooklyn at which they obtained additional (Inaudible).

They also obtained leads and so on from, all stemming from the original illegal search and seizure at the Latham.

And under the rules of this Court and of the Second Circuit, I have sought to bundle all these together for the convenience of the Court.

But what I want to make clear is, that this entire mass of evidence objected to and I respectfully suggest that not only are we -- of my affidavits in the Court below but also of this memoranda of law to which I've made reference will show that we contested every bit of what was evidence.

Now, with respect to this arrest --

Justice William J. Brennan: Before you leave it Mr. Donovan, just look at your (A), your Item (A) there at -- at page 41.

Now, there under (A), you have here ten exhibit numbers and the pages that which respectively, they were received.

Mr. James B. Donovan: Yes, Your Honor.

Justice William J. Brennan: 87 is the hollow pencils, now when was that?

Is that what they took from the waste paper basket?

Mr. James B. Donovan: I believe the answer is, yes.

Justice William J. Brennan: And is that true also of the hollow block of wood?

Mr. James B. Donovan: I believe, yes.

Justice William J. Brennan: Well now, what about the microfilms, 97.

Is that -- were those microfilms included in either the pencil or the block of wood when they found them?

Mr. James B. Donovan: They were in the hollowed out pencil, Your Honor.

Justice William J. Brennan: Well, what I'm trying to get at, there are 10 items and we're talking about seven.

Now, how -- how do we --

Mr. James B. Donovan: Your Honor -- Your Honor, all that I can say is that -- that my motion was addressed to my objections to the trial were addressed to and my argument in this Court is addressed to this entire mass of evidence.

Justice William J. Brennan: Well, what are the two letters, 98 (A)?

What are the two letters?

What are they?

Are they any of the seven that have been mentioned?

Mr. James B. Donovan: These two letters -- my recollection Your Honor, are the ones which purported to be in his family.

Is that correct?

They were in microfilms too, Your Honor.

Now, turning to this question of the --

Justice John M. Harlan: (Inaudible) the Court of Appeals passed on the validity of the search and seizure that produced these seven items that we have?

Mr. James B. Donovan: Well, Your Honor, in their opinion that is what they decided on but I made to that Court the same argument I'm making here.

And Your Honor will find that all the proceedings of the District Court relate in the broadest possible language to every thing not only seized at the Latham but on leads, on leads obtained at Latham.

This is made perfectly clear in the affidavits of the District Court and in the memoranda of law.

Now, turning to this question of what was the arrest?

First, let me -- let me say that as I would understand the Government's argument this afternoon, it is as say, Gertrude Stein might have expressed it, “An arrest is an arrest is an arrest”.

I don't know what kind of an arrest was made in this case, until the decision of this Court.

I know that I won't because as Justice Black suggested, in the memorandum of law which I've now submitted to Justice Clark, you will find that -- that my point was, this was not a criminal arrest.

Therefore, it must be a civil arrest and not only am I confused in the point but the last I know so is the Department of Justice because their answering memorandum to me said that it was an arrest sui generis.

I have never heard of arrest sui generis and I still don't quite understand that.

Now, all I'm trying to say is whatever you decide, whatever kind of an arrest it was, I object to it in this case.

[Laughter]

Justice Felix Frankfurter: But the Court isn't talking about arrest, we talked about lawfully on the premises.

Would you -- would you agree or disagree that first the FBI could knock at my house tonight and asked to be let in and then I ask me would I gladly tell about John Jones?

They could do that, couldn't they?

Mr. James B. Donovan: Your Honor, any morning at 7:30, when two men push their into my house and while I'm naked, as the evidence shows in this case, and begin to question me showing me envelopes from the FBI, this could be a little difficult.

Justice Felix Frankfurter: You'll tell them to get out, wouldn't you?

Mr. James B. Donovan: I most assuredly would.

Justice Felix Frankfurter: But are you willing to say that -- or you can say that knock at the door -- on the door and not seeking to arrest you or not being lawfully on the premises, would you?

Mr. James B. Donovan: Your Honor --

Justice Felix Frankfurter: I think I wouldn't.

Mr. James B. Donovan: This suggestion that they really were there, I'm beginning to learn to helpfully pack them in.

They were really being --

Justice Felix Frankfurter: That isn't my question

Mr. James B. Donovan: -- helpful.

Justice Felix Frankfurter: My -- that isn't my question.

My question is whether the F.B.I simply could come to me 7:30 and rouse my maid instead of the sleepy masters and ask them, could we see the justice we want to ask him about John Jones?

Would that be unlawful?

Mr. James B. Donovan: That would only be discourteous.

Justice Felix Frankfurter: To whom then?

Mr. James B. Donovan: That would only be discourteous but I suggest that it perfectly evident in this case that more than discourtesy was involved.

It's perfectly everyone knows that the F.B.I is under regulations to always be armed.

That two armed men break into my house in the -- in the morning in the manner in which it was done here and precisely the same rule's involved so far as I know.

Justice Felix Frankfurter: It is also perfectly well-known and you thought it was in the height public or in the height of public interest that FBI simply might ask somebody who is under the decision for espionage to become a defectively country.

Mr. James B. Donovan: That is correct.

Justice Felix Frankfurter: It's also well-known.

Mr. James B. Donovan: That is correct.

Justice Felix Frankfurter: You thought that was in a high public service?

Mr. James B. Donovan: I do.

Now, finally, I again want respectfully to bring the Court back to what I contend is the major issue in this case.

At one point this afternoon, I thought that the major issue was whether the rule of the Court that now only extends to four rooms whether it should be extended to a room and bed.

What is at stake in this matter?

And the issue that must be decided by you is the extent to which internal security shall be permitted to prevail over constitutional guarantees.

Now, what does this issue mean?

It means that there are inherent difficulties in a democracy in attempting efficient counter intelligence and there are degrees of efficiency.

Does a decision in this case that these methods can't be permitted mean that we have no counter intelligence?

No.

But on the other hand, do we want so efficient a counter intelligence in the United States as the Gestapo or La Chica.

This is an inherent part of democracy.

And I suggest to this Court that in deciding this question, which I would assume is the only reason this Court would have taken certiorari in this case, that in deciding that question that the Court advert to the argument which I've made in my original argument, and that is that even as a matter of national defense, the most important thing to United States today is to maintain our way of life in a free society held out to the other nations of the world that they have something to aspire to.

Now, I say that kind of a way of life is the kind of way of life that is threatened in precisely this case and that violates a democracy that was created by people who had fled from precisely this kind of thing and who carefully provided in the Fourth Amendment the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizure shall not be violated and no warrant shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.

That kind of simple language is what created the society we live in.

That rule has been violated in this case, and I respectfully ask that the judgment below must be reversed.

Thank you.

Print this transcript Transcript: 

Argument of James B. Donovan

Chief Justice Earl Warren: Number 2, Rudolf Ivanovich Abel, also known as “Mark” and also known as Martin Collins and Emil R. Goldfusg, Petitioner, versus United States of America.

Mr. Donovan, you may proceed.

Mr. James B. Donovan: Mr. Chief Justice, may it please the Court.

This case comes before the Court on reargument.

It was argued in February this year.

In March the Court ordered reargument on specific constitutional issues concerning our contention that there was a violation of the Fourth Amendment of the Constitution pertaining to search and seizure.

It will be my plan on reargument to briefly review the facts once again for the Court and then advance to my contention that this case involves issues of great importance to United States, not only with respect to important phases of its national security, but also with respect to what I shall contend of violations of fundamental rights and liberties that affect every person living in the United States.

To briefly review the facts, this case began in May of 1957, when the man named Reino Hayhanen appeared in the American embassy in Paris and stated to the local representative of the Central Intelligence Agency attached to that embassy that for several years, he had been engaged in espionage in the United States, where he operated under a man known to him only as “Mark”.

He described the man with some particularity.

He produced indeed a hollowed out coin which was recognized by the local attaché as a type that could be used in the transmittal of espionage materials.

He was brought back to the United States and turned over to the F.B.I., who then proceeded to go to his home in Peekskill, New York, where a great many other objects which would tend to sustain his story, were uncovered.

Now, meanwhile, he, having identified not only Mark, but also the -- the place in which he was maintaining an artist's studio on Fulton Street in Brooklyn, the F.B.I. commenced a complete surveillance of this individual not only where he operated the artist's studio in Brooklyn, but also where he lived in the Hotel Latham in Manhattan, across the river.

On June 20th, 1957, the F.B.I. having previously alerted Immigration and Naturalization, both being component parts of the Department of Justice, to the existence of the suspected espionage agent, on June 20th, conferred in Washington with Immigration and Naturalization and requested Immigration and Naturalization to apprehend the man on an administrative warrant normally used by Immigration and Naturalization to apprehend the person with deportation.

Justice Felix Frankfurter: Had anything come through Immigration and Naturalization to indicate that this presented our case where they have duty of investigation of this?

Mr. James B. Donovan: A memorandum was submitted, Your Honor, to Immigration and Naturalization, which on the one hand identified the man as an alien, living illegally in the United States.

But as Your Honor will find, this memorandum originally came up under seal to this Court.

It since has been declassified, has been made available to the Court.

And as Your Honor will find, the great bulk of the memorandum deals with the man as a suspected espionage agent.

Justice Felix Frankfurter: But there was a reference to his illegal presence in the country?

Mr. James B. Donovan: Yes, Your Honor, there was.

Justice Felix Frankfurter: And that was before this meeting, this confabulation between the F.B.I. and Naturalization?

Mr. James B. Donovan: That is correct, Your Honor.

Chief Justice Earl Warren: But that memorandum was from the F.B.I., was it?

Mr. James B. Donovan: Yes, it was, Your Honor.

Now, at this meeting in Washington, it was agreed then that this procedure should be followed and that evening of June 20th, men from Immigration and Naturalization and from the F.B.I. went to New York where they took a prepared warrant for his apprehension to the acting District Director of Immigration, who proceeded to execute that warrant.

The Immigration and Naturalization officers then spent the night at F.B.I. headquarters in New York.

And the following morning, in accordance with a prearranged plan, proceeded to the Hotel Latham.

Also in accordance with a prearranged plan, instead of Immigration and Naturalization participating in the first discussions with the suspect, the Immigration and Naturalization officers remained outside in the hall and also in a room next door to the suspect which was occupied by the F.B.I.

And in accordance with prearrangement, the F.B.I. agents knocked on the door.

It was 7 o'clock on the morning of June 21st.

When a man opened the door in response to the knock, two agents of the F.B.I. pushed their way in and proceeded to identify themselves to the suspect.

After identifying themselves --

Justice Hugo L. Black: Inclined as to the forcible entry?

Mr. James B. Donovan: I beg your pardon, Your Honor?

Justice Hugo L. Black: Inclined as to the forcible entry?

Mr. James B. Donovan: The words that I used, Your Honor, that they pushed their way into the room, a direct quote from the F.B.I. agent's testimony in the hearing below.

The extent of the -- of the forcible entry is neither --

Justice William J. Brennan: They didn't -- they break the door down?

Mr. James B. Donovan: No, Your Honor.

There is no need for that.

He had opened the door in response to the knock.

Justice Felix Frankfurter: You don't know how far the door was opened?

Mr. James B. Donovan: Yes.

I believe there was testimony that he slightly opened the door and said, “Who's there?”

And they pushed their way in and they then produced their credentials and explained that they were agents of the F.B.I., all incidentally, what I'm telling is to the best of my knowledge, undisputed facts, developed from the government witnesses.

They proceeded not only to identify themselves as agents of the F.B.I., but as they explained, their first act was to explain to the suspect whom they addressed as colonel, the jurisdiction of the F.B.I. with respect to internal security matters.

They further more said to him, "Colonel, we have information leading us to believe that you had been involved in espionage."

They said, "Unless you will cooperate" and this is an important phrase in this context, "Unless you will cooperate with us and tell us what we ask you, unless you do that, you will be put under arrest before you leave this room."

Abel refused in effect to say anything.

He stated that his name was Emil Goldfus, at one point.

Another point, he stated that he was registered in the hotel under the other name of Collins.

He made some references to having then born in the United States and having principally lived in New York, but he refused to discuss anything else.

Now, after a half hour had been devoted by, now, three F.B.I. agents, where a third have subsequently entered the room, after a half hour of a fruitless endeavor to persuade him to cooperate, the F.B.I. agents went to the door, signaled to the waiting immigration officers, who then entered the room and proceeded to serve Abel with the two warrants, which have been discussed at great length before the Court.

Justice Felix Frankfurter: Mr. Donovan, may I ask you not to argue, but just to state your conclusion whether what happened up to the time that they signaled that you just put in?

The Naturalization Immigration people to make the arrest, up to that point, did you claim below or do you claim here, there was any violation of any provision of the Constitution or any statute of the United States?

I don't want an argument, I just want an --

Mr. James B. Donovan: He answered it.

Justice Felix Frankfurter: -- improbable record.

Mr. James B. Donovan: The answer is yes, Your Honor.

It is virtually one book law in law enforcement that before a man can be confronted and questioned, he is to be put under arrest.

Justice Charles E. Whittaker: I didn't understand you.

Mr. James B. Donovan: It is -- it is, Your Honor, a established law that before a man can be subjected to questioning in this manner and apprehend, if we want to call it that, two armed men, wake you up at 7 o'clock in the morning and push their way in into the room, display credentials, proceed to question you for a half hour.

I'm saying that there is case law to be effect that that cannot be done until a person has been legally put under arrest.

Justice William J. Brennan: But -- but Mr. Donovan --

Mr. James B. Donovan: Sir.

Justice William J. Brennan: -- if you raised this under most of the threats that constitutes acquittal?

Mr. James B. Donovan: I believe that you will find, Your Honor, that on a motion to suppress, that we've raised every conceivable argument that can be raised with respect the entire set circumstances that we're talking about.

Now, could I for a moment, divert from my narrative to deal with this question.

In the last two briefs that the Government submitted, I find that they have contended that some of these issues that are now before this Court, where never raised for consideration in the United States District Court.

Well, I've stated in my brief that these contentions rather belated by the Government are probably attributable to a reluctance to face these issues.

However, first of all, you will find that in the Government's brief why -- what is almost a play on language they have taken out, I believe out of context, some statements that were made in colloquy in the District Court.

Those statements, Your Honor, will find deal with our responses to such questions as, "Do you contend that Immigration and Naturalization had no valid right to apprehend this man for deportation?”

Our answer is, and it still is, no.

I have never contented that this warrants are invalid for oral purposes.

There's no reason I should, I don't have a deportation case, I have a case where a man was indicted, tried and convicted of a capital crime on this process.

And there's no reason why I have to go beyond.

What I'm arguing, my defendant did not receive due process of law.

These questions about whether or not they could be valid with respect to deportation are hypothetical questions that aren't in this case.

Now --

Justice John M. Harlan: That means that qua deportation, you concede the validity of this warrant, is that right?

Mr. James B. Donovan: If Your Honor would like that, I will assume it arguendo.

Let me put it that way.

Conceded -- he's accepted --

Justice John M. Harlan: Well (Voice Overlap) --

Mr. James B. Donovan: I'm explaining, Your Honor, I've never even researched the point.

The Government --

Justice John M. Harlan: But the point is you do not rely --

Mr. James B. Donovan: That is correct.

Justice John M. Harlan: -- on -- in your case on the -- any alleged infirmity of the warrant qua a deportation warrant.

Mr. James B. Donovan: That's correct, Your Honor, because that is not the gravamen of my province.

Now --

Justice John M. Harlan: Yes, I'm wondering (Voice Overlap) --

Mr. James B. Donovan: Now, these until recently, it had seemed to me that my original affidavit put in, in United States District Court and which is printed in the record before this Court, made so clear these fundamental contentions that I'm making that it would be perfectly evident that there is no ground to say that some new issue is being raised before this Court.

However, in the last brief of the Government, you will find at least a half dozen references to these new contentions and these new issues.

Now, it maybe that the Government never fully understood my contentions, but so far as saying that they weren't advanced in the District Court, this is simply nonsense.

Justice Felix Frankfurter: Mr. Donovan, may I suggest this, I think I'm -- he claims for breaking into your narrative, I just want to (Voice Overlap) --

Mr. James B. Donovan: Well, all right, Your Honor.

Justice Felix Frankfurter: May I suggest, instead of presenting that -- wouldn't you say that the one of apprehension for illegal presence in the country, a deportability on that ground was not an illegal -- that apprehension for that purpose was not illegal, then a question may arise, I do not say it does arise, it may arise, whether certain consequences on the basis of that legal apprehension do not cloak in relation to the seizure -- of a search and seizure of Government.

I'm not suggesting you should argue that --

Mr. James B. Donovan: This --

Justice Felix Frankfurter: -- I'm merely suggesting that that makes it irrelevant as I understood it of the question put by my Brother Harlan.

Mr. James B. Donovan: This -- this, Your Honor, would be highly compartmentalized thinking.

Justice Felix Frankfurter: Im not saying it is but --

Mr. James B. Donovan: Furthermore, may I point out that if you go down that road and you try to examine each one of these propositions in its own little compartment, the rule of law laid down by this Court to govern the procedure in future cases of suspected alien espionage agents, obviously will permit the end of any criminal warrants being obtained.

Obviously, these warrants are very handy little instruments.

Justice Felix Frankfurter: The other side --

Mr. James B. Donovan: If -- and --

Justice Felix Frankfurter: -- the other side is, Mr. Donovan that the fact that a man may also be an espionage suspect, ought not to preclude the Immigration and Naturalization Service in carrying out the law against illegal residents in this country.

I'm not suggesting either of these your proposition of mind answer the problem of this case.I merely suggest that they're involved.

Mr. James B. Donovan: They certainly are involved, Your Honor.

But, while I have said to Justice Harlan that I'm perfectly willing to assume arguendo, the legality and validity of those warrants with respect to deportation, I again want to emphasize that I have not researched this question and indeed in my judgment, in certain cases of deportation, I would think that lacking fundamental procedural safeguard for the lacking and the present form of these warrants that there could be great question as to their constitutionality even in that (Voice Overlap) --

Justice John M. Harlan: Well (Voice Overlap) --

Mr. James B. Donovan: But isn't my case.

Justice John M. Harlan: That's not your case --

Mr. James B. Donovan: Well --

Justice John M. Harlan: -- I just want to be -- make sure I understand specifically.

Mr. James B. Donovan: Now, in --

Justice John M. Harlan: In relation to the questions put by the Court or some of the questions put by the Court in the order for reargument, as I understand it, you do not contend in this case that the administrative warrant was invalid under any statute which governed its issuance.

Mr. James B. Donovan: The administrative warrant, Your Honor, is valid in the sense that it can conforms to the statutes.

Justice John M. Harlan: Yes.

What I mean, I'm not talking about the consequences that throw him the warrant.

I'm just taking about the validity of the warrant itself.

Mr. James B. Donovan: The warrant complies with the statute, but I'm explaining, if instead of being assigned to an espionage case that put aside to a deportation case, I might have made other arguments (Voice Overlap) --

Justice John M. Harlan: I'm talking about the validity of the warrant within the confines whatever they are the deportation case.

You're not questioning the validity of the warrants.

Mr. James B. Donovan: Not before me, it's a hypothetical question.

Justice John M. Harlan: And that includes no attack on the validity of the warrant qua deportation from the point of view of the Fourth Amendment.

Mr. James B. Donovan: Your Honor, insofar -- again say as this case is concerned, I claim the entire process is invalid with respect to how it would come up under rather circumstances in a deportation case, where they did deport the man, as I say that -- that's a separate question.

But I agree with you that my argument does not necessarily rest on this invalidity.

Now, with the Court in of course reviewing my case, concludes that these warrants are invalid for all purposes.

That's within the province of the Court.

But such a contention is not essential to my case and my judgment.

Justice John M. Harlan: We'd be going outside the four corners of the argument, if we viewed the case in that standpoint.

Mr. James B. Donovan: Well, it's a matter of opinion, Your Honor.

Justice Felix Frankfurter: You say, you do not want him to discover the immigration warrant from the brutality of the arrest, trial and conviction, an affirmative conviction of the petitioner for the crimes for he was which --

Mr. James B. Donovan: It would be absurd to do so, Your Honor.

It's like writing a series of seven different Law Review articles, each dealing with it.

You take the Government's brief, the latest Government brief and you will find that they talked about the arrest over here as though it were a separate subject and the search and seizure over here as an entirely separate matter, this is absurd.

The search and seizure I'm complaining about is not with respect to the how it -- perhaps a short wave radio, I'm talking about the seizure and search of a human thing.

A man who was held incommunicado for at least the Government can say three days.

The search and seizure and the arrest whatever we wish to quote, they're all part and parcel or inextricably entwined.

The part of process used in this case.

Now, because in the Government's last brief, there are a half dozen references to these new issues that have come up before the Court that the Fourth District judge never had a chance to consider and which might have bravely all to mistakenly suggest, this showed such as a monumental lapse of memory on the part of Department of Justice that it began to give me some concern for my own.

So, accordingly, notwithstanding the presence in the record of my affidavit, last Friday, I went over to the United States District Court for the Eastern District of New York and dug out of their files and borrowed from them, a copy of the first memorandum of law, which I submitted in this case.

In other words, when I brought this action to compel the suppression of this property as evidence, I not only supported it with that affidavit which is printed in the record, but I supported it with a memorandum of law.

Now, I'd like to read to the Court the last couple of paragraphs of this memorandum of law.

And I do this not only because it will show the Court that there is nothing to the Government's contentions that these are new issues, but also because it happens to be as able a summary of my entire case today as I possibly could make.

This is page 15 of the original memorandum of law, “From the foregoing, it is clear that an immigration warrant issued by agents of the Department of Justice, is not a warrant charging the alien with the commission of a crime.

Therefore, it cannot be the basis of the lawful search and seizure,” cf. Robinson against Richardson, 13 Gray 454, cited with approval by the Supreme Court of the United States in Boyd against the United States, supra.

An executive procedure such as that employed to obtain an immigration warrant in which the Attorney General is accountable only to himself without any of the safeguards discussed above, cannot and should not be the basis for a lawful search and seizure to procure evidence for use in the prosecution of a capital crime.

Petitioner's property in Room 839 of the Hotel Latham was search and seized on June 21, 1957, without legal warrant.

The Constitution of the United States in Rule 41 (e) of the Federal Rules of Criminal Procedure, are clear in providing that such property must be returned and suppressed for use as evidence in any criminal proceeding under the Laws of the United States.

Justice John M. Harlan: In other words, what you're saying is that if the Court sua sponte so to speak, wants to inquire into the validity of this warrant, leaving aside the question of the search following from the warrant, has stated the record as such that the Court is not foreclosed in considering it.

Mr. James B. Donovan: I believe so, Your Honor.

Now, with respect to matters of this sort first of all, to be practical about it, it is very difficult in the course of the heat of the trial of this magnitude to make every legal contention the trial counsel makes, with all the learning and the accuracy that he might -- the following -- some are spend in an article for the Harvard Law Review, that's axiomatic.

And secondly --

Justice John M. Harlan: But first, you got to go down.

Mr. James B. Donovan: Secondly, it's been my experience that counsel on any given point, becomes a little more articulate on it the longer he lives with it.

However, in all planners not withstanding those, what I'm saying is based on the original memorandum of law, the only embarrassment that I find in this entire matter, is that, it's quite evident that I haven't had a new thought on this subject in the past two years.

Justice Felix Frankfurter: As I understand you're argument, to get a -- you're arguing your case not ours, but it is my case.

As I understand your argument a little differently, it is that you're not here to challenge (Inaudible) the arrest, the apprehension under the administrative warrant for legal cases.

You're not here to challenging what inquiredly under such authority of the arrest -- for arrest.

Either didn't the search and seizure of documents relevant to -- exclusively relevant to deportation, you're saying things that right here has travelled far outside what an administrative warrant or any implied right from search and seizure would have justified.

Mr. James B. Donovan: The simplest way to state my position is that insofar as anyone of these procedures is pertinent to my case which is the conviction of the man for the capital crime of espionage, I challenge it insofar as it's not pertinent to my case and there is no need for me to go beyond it, I'm assuming, I'm arguendo.

Justice Felix Frankfurter: The question is whether you challenge it, whether you not challenge it, it maybe very important to whether -- it maybe very important whether or not, being (Inaudible) or whatever reasons you chose not to challenge the legality of arrest for deportation, you just challenged that.

Now, as Justice Harlan said the consequences of that maybe another case, but you can't come here as far as I'm concerned and say you now have a challenge, the warrant for apprehension for deportation, restricted to that legal act on the consequence of that legal act.

Mr. James B. Donovan: Ordinarily -- ordinarily, Your Honor, it's my understanding of the rules of this Court indeed, that the Court doesn't pass on hypothetical questions and I have simply studied this and challenged it and did in the District Court, as I believe this memorandum showed there's no change from my --

Justice Felix Frankfurter: I'm suggesting that a missing hypothetical to consider whether it is relevant that if the warrant of arrest or deportation not challenged impliedly in law to authorize and use -- make certain doctrine of -- and it didn't challenge that, that maybe relevant to the consequences of that as far as the criminal prosecution.

I'm not saying it is, but it's made it.

Mr. James B. Donovan: Your Honor, I do -- Your Honor, I do believe that to the extent that -- that it was in this case -- I challenged it on every one of those grounds.

Now, I've pointed out to Justice Harlan and indeed, have pointed out not only in my oral argument the last time, but you will find in my petition for certiorari that I pointed out with respect to this warrant itself that it -- it is quite totally lacking in normal procedural safeguards.

I pointed that out.

I furthermore, pointed out that there's a legislative history to these warrants and that I gave citations to how at one point in the past, procedural safeguards were created with respect to these warrants, but then, that that was removed.

So, that all -- all of these arguments, Your Honor, I did make.

The only thing I do again come back to is that if the Court finds that I have not treated the deportation phase of this in the sanctity that I have everything else, it is for the simple reason that I have never felt I was handling a deportation case.

The man was not deported.

The man instead was indicted, tried and convicted of a capital crime.

Justice Felix Frankfurter: In the question regarding your petition, in state what I believe to be that the States are correct (Inaudible) namely, whether the Fourth and Fifth Amendment of the Constitution are violated when Article 12 (c) are unrelated.

The point you make is that -- that even though you may have said I'm not challenging the validity of our administrative warrant and the legal implication to their problem, I do challenge their travelling outside what such a warrant authorized.

Is that what you said in you're (Inaudible) that factor is pertinent to your case.

(Voice Overlap) --

Mr. James B. Donovan: Yes.

I did --

Justice Felix Frankfurter: -- your present argument.

Mr. James B. Donovan: I did, I did, Your Honor, but could I point out that -- that my first question in the petition for certiorari was far broad and more fundamental.

The first question is, whether the Fourth and Fifth Amendments of the Constitution of the United Stated are violated by a search and the seizure of evidence without a search warrant.

After an alien suspected and officially accused of espionage was been taken into custody for deportation pursuant to an administrative Immigration Service warrant, but is not been arrested for the commission of a crime.

And this Court granted me certiorari with respect to that first basic question.

This second question, Your Honor, is related, but is separable.

Justice Felix Frankfurter: I'm having a hard time to find anything but I'm with your statement and your position.

Mr. James B. Donovan: Your Honor, if you can win this case for me [Laughter] I hope it was more than appreciative.

Justice Felix Frankfurter: I mean (Voice Overlap) --

Mr. James B. Donovan: [Laughs]

Now, at the same time that this man was served with these warrants in Room 839 of the Latham, at 7:30, the morning of June 21st, he then had all his effects in his room seats this by Immigration and Naturalization, but in the presence of the F.B.I. officers.

They then took Abel and his effects to immigration headquarters where he's fingerprinted.

And then that afternoon was taken to north airport, placed in a special plane with two Immigration and Naturalization agents and flown down to McAllen, Texas, where for three days, he was questioned repeatedly, continually by agents of the F.B.I. and immigration officials.

Two of the men who had been in on the original seizure of Abel in the hotel room were flown immediately down to Texas and participated in what transpired.

Now, I won't go into what has never really been contradicted by the Government and which Abel has sworn to in an affidavit to the effect that he was offered every kind of inducement to cooperate and come over with the United States including the offer of the position in the Federal Government.

But, suffice to say that for that period of time, and until he was given a deportation hearing which is a departmental hearing, which he had local counsel down in Texas, it was six weeks later that for the first time upon his being indicted back in Brooklyn, it was six weeks after his seizure that for the first time this man appeared in a Unites States court.

Now, this is the set of facts with which we have to deal.

Now, what is the significance of the issues that are before the Court?

Is this just another case such as those that the Government has been citing in their brief of (Inaudible) against the Commissioner and whether or not, he should have used the bread knife when they apprehended him for deportation.

Is that all that's involved in this case?

Definitely not.

This case involves tremendous problems of great importance to the United States.

These problems are very old problems in world history.

They happen for reasons which I will explain in a moment, to come for the first time before this Court, because they couldn't quite have come in the present context before this Court until 1947.

Now, what are these problems and what are the basic issues that this Court should resolve?

The basic issue is the measure to which it -- a -- those possessing power of internal security in any country are permitted, in the interest of internal security, to infringe the constitutional rights of people living in that country.

Now, this is a very old problem.

It existed back with the Roman emperors as to who controlled the praetorian guard.

It existed under the Medicis.

It existed in England for centuries, existed under Richelieu, France.

It existed in our own date, culminating in the Gestapo in Nazi Germany and the Cheka in Soviet Russia.

This is a tremendous problem to what degree in the interest of internal security do you permit?

Those living in the country to be deprived of basic liberties.

We will have seen in our own time examples of these.

Of both phases of what I have mentioned actually, we not only have seen the manner in which a tyranny can keep itself in power by the control of its internal security forces, we have also seen when Korea became premier of Russia, how he who controls internal security can assume the throne.

Now, in the United States, until the National Intelligence Act of 1947, the United States had never had a true intelligence and counterintelligence setup.

In England, they've had it since the time of Queen Elizabeth.

But in the United States, we never did.

Actually, during war time, officers would be assigned to G2 or O&I normally as anyone with service experience knows at that time, peak on the ground, they're either too young or not properly fitted to command troops or command a ship.

And G2 and O&I, and these various set of forces actually worked all alone -- it is very little communication between them.

For the first time during World War II, a coordinated United States Intelligence Service was created.

Now, at the conclusion of World War II, with the dissolution of the Office of Strategic Services, this tremendously important problem was reviewed by Congress.

It's perfectly evident that in a day of intercontinental missiles armed with thermonuclear warheads, it is vitally important to the United States that we -- the -- the decisions that we make are policy decisions by the President, by the State Department, be informed decisions.

This is very important.

To what extent can we ascertain the -- not only the capabilities of foreign nations, but their intentions toward the United States.

If for example we had reliable intelligence that the Communist world did not intend military conquests, but were relying on economic warfare and propaganda, think of the tremendous impact his would have on the day-to-day economy and tax problems in the United States.

Now, bearing all these in mind, in 1947, after several years of study of this problem, Congress acted and Congress created the Central Intelligence Agency.

Now, citations to all these appear in my briefs.

You'll find no reference to any of these matters in any of the Government's brief.

But the Court will find when it examines these statutes and the legislative history of them that while on the one hand, Congress was very determined to -- to create a permanent Central Intelligence Agency such as now exist.

It was equally determined to see to it that that agency did not operate within the continental borders of the United States, where it could become an agency in which the internal security functions began to transcend the rights of our individual residents in the United States.

Accordingly, the Court will find that just as Congress caught out this area for the Central Intelligence Agency, they reserved all domestic problems to the Federal Bureau of Investigation within the Department of Justice.

Now, this is what this case is all about.

This is not a simple deportation matter.

These are matters of fundamental importance.

Now, in my principal briefs, on page 12, I caught the Court's attention to an extraordinary statement.

And I would like to read this statement to the Court because it is so pertinent to what this case is really all about.

And I want to read it for the simple reason that although this statement was included in the first affidavits I submitted in the United States District Court, from that day to this, no reference to this statement has ever appeared in any Government brief, nor any reference by the District Court, nor by the Circuit Court of Appeals.

Now, what does this say?

First of all, it is taken from a bestseller which by now has been read by hundreds of thousands of the United States citizens.

The title of the book is, “The FBI Story” by Whitehead.

And as I point out, the foreword is authoritative.

It's by J. Edgar Hoover, Director of the F.B.I.

He states that the F.B.I. has complete confidence in the author's integrity, ability and objectivity and the facts reported are supported by the Bureau's record.

Now, with respect to how this law enforcement agency which has these counterintelligence powers is operating today with respect to a suspected espionage agent, what do they say?

“The F.B.I. conducts two types of security investigations, one-to-one cover admissible evidence, to be used in the prosecution of an individual or group in federal court.

The other for intelligence purposes only.”

The intelligence investigation is intended to identify and determine the activities of individuals who are potentially dangerous to the nation's security, thereby supplying information on which to -- base preventive or counter espionage action.

Often clandestine methods are necessary to uncover clandestine operations.

As for example, obtaining an espionage agent's diary for secret papers, the evidence in the diary maybe inadmissible in federal court, but it may contain information which would enable the United States to protect itself at a later date.

This is in contrast to a case where legal evidence admissible in court has to be obtained to convict the espionage agent of violating the laws of the United States.

This is a full statement that investigations of searches and seizures are regularly conducted in -- in this area and that's the area of this case, in violation of the Fourth Amendment.

Justice Felix Frankfurter: There are a number of official statements -- official documents or the rule of signature in which he directly commands constructive agent could use it to obey the law of the United States and not to -- by indemnity.

Mr. James B. Donovan: Your Honor, I am not being critical of Mr. Hoover in any manner.

Justice Felix Frankfurter: I'm not being obligatory.

I'm just (Voice Overlap) --

Mr. James B. Donovan: No.

And I -- the last objective in the world I have in getting into this is in anyway to -- to embarrass his grey evidence.

However, all I am pointing out is, this is the most important part of this case.

Now, I'm not saying that this statement should be disavowed by the Government or explained by the Government.

All I'm saying is that either case where this Court is dealing with fundamentals charting a cause of action as to this entire vital area, surely the Court is entitled to have it discussed.

At least we're entitled to know more about these clandestine operations.

Justice John M. Harlan: Maybe I'm obtuse, but I don't understand what substance you get out of this statement to your case.

Mr. James B. Donovan: Well, it's perfectly evident that -- that if they wish to -- to seize articles which they must show were seized in compliance with the Federal Constitution and laws, the statement is that they operate one way and that otherwise --

Justice John M. Harlan: You mean --

Mr. James B. Donovan: -- that they operate in what they term, a clandestine way.

Chief Justice Earl Warren: You mean, you read this as saying that where they're interested in internal security, they're lawless and where they're interested in getting evidence for use in Court, they behave themselves?

Mr. James B. Donovan: This is not my statement; this is a statement of a man --

Chief Justice Earl Warren: Is that -- is that the way you want -- want this read.

Is that --

Mr. James B. Donovan: That's the -- that's the [Laughs] only way I would construe with this use of the English language.

Now, all that I am saying is at least this should be discussed and I've pointed out, it's been ignored in every Government brief.

Now, with respect to Mr. Hoover, to me, this is the forthright direct statement of a forthright man.

All I'm saying is that these forthright qualities in Mr. Hoover, which I find quite admirable, the Government seems to find rather disconcerting.

Justice Felix Frankfurter: But Mr. Hoover doesn't make these statements.

Mr. James B. Donovan: Mr. Hoover gave his unqualified endorsement to these statements, Your Honor, in the preface to the book.

Now, while we're on this subject --

Justice Felix Frankfurter: (Inaudible) fact of order of the Court, I'm not here to defend or overall I'm saying is --

Mr. James B. Donovan: These are facts.

Justice Felix Frankfurter: -- don't get me followed (Inaudible) and the serious propounding (Inaudible) [Laughs] of the newspaperman writes a book and gets it to be a bestseller, for me that type of book is the bestseller doesn't authenticate it more than this.

Mr. James B. Donovan: Do you think, Your Honor, it would've been a bestseller if -- if Mr. Hoover in the -- in the preface had not said that the F.B.I.'s complete competence and his integrity, ability and objectivity and the facts reported as supported by bureau's record?

Justice Felix Frankfurter: What makes the bestseller beyond my coverage?

[Laughter]

Mr. James B. Donovan: Your Honor, we're in an area where there is not too much material on this preside subject for rather obvious reasons which I could present to the Court.

I regard it as my duty to bring before you anything that is pertinent to the controversy.

Justice Felix Frankfurter: No one has suggested you're not (Inaudible)

Mr. James B. Donovan: Now, I have further argued at my brief, Your Honor, that precisely this clandestine method of operation is an accurate description of what happened to the petitioner in this case.

It's perfectly evident, incidentally, that throughout this entire controversy, the Court will note that on oral argument the last time.

I carefully stated that I was not quarreling with what was done in this case in that prospectively, it obviously is in the best interest of the United States instead of arresting him for the misdemeanor of being illegally in the country.

That since his confederate had already come over to our side, prospectively, it is obviously in the best interest of the United States that an effort be made to secure a man who is said to be the chief of all Russian espionage in the United States and try to induce him to follow his subordinate and come over to our side.

If this can be done, it's a triumph in counterintelligence.

At a minimum, you obtain complete information on the enemy's spy apparatus.

Justice Felix Frankfurter: You're not talking about the (Inaudilbe)

Mr. James B. Donovan: I beg your --

Justice Felix Frankfurter: I don't think it's in the best interest of the United States ever of what any -- to be violative of the constitutional law.

Mr. James B. Donovan: I haven't suggested that, Your Honor.

I haven't suggested that.

I am saying --

Justice Felix Frankfurter: What you have suggested when you're saying, you're not up -- looking on this side and to think this maybe --

Mr. James B. Donovan: No.

Justice Felix Frankfurter: -- for the interest of the United States.

Mr. James B. Donovan: Your Honor, this actually gets back to the discussion I was having with Justice Harlan.

What I'm saying is that in this case -- in this case, I do not find it necessary to criticize what they did in making the effort to convert an enemy intelligence agency.

All I'm saying is that having gone down that road and spent six weeks down in Texas without public disclosure in this endeavor, what I'm saying is that having taken that gamble and failed, that they cannot come back up to New York, indict him, try among all the evidences that they seized is in that manner and then pretend to give lip service to due process of law.

Justice Felix Frankfurter: It couldn't answer to a question of mine, when you said, I construe you that they violated the Constitution, what they did intend.

Since they violate the Constitution, I cannot believe it's for the best interest of the United States.

Mr. James B. Donovan: They violated in this case, Your Honor.

Justice Felix Frankfurter: But they did it down in Texas by giving anything (Inaudible)

Mr. James B. Donovan: Your Honor, I think -- I think that we can --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. James B. Donovan: Well, let me answer it this way, Your Honor.

I think that we can assume that these administrative alien warrants served many such handy purposes and that a great many similar gentlemen wind up in Mexico.

All I'm saying is that I'm defending due process of law in the United States in this case and I'm saying it was violated in this case and that if this Court permits this to -- to continue and lays down a rule of law, that this can be done, it's perfectly evident the Department of Justice no longer will obtain criminal warrants and alien espionage cases.

They'll simply use methods of this type and I'm saying I do not believe that the Court should sanction this kind of thing when a man is prosecuted for a capital crime and convicted on the evidence thus obtained.

Justice John M. Harlan: The premise of that argument is and what they did is illegal which is the thing we're here to decide.

Mr. James B. Donovan: Well, Justice Frankfurter and I were debating really more the morality of what was the -- that the legality.

I'm trying as best I can to say that in this case, the man's legal rights were violated and in the other hand that that obviously is enormously in the national interest to have effective counterintelligence.

And I'm saying that it's up to this Court in this case, in my judgment, on these issues to lay out the pattern of conduct as to what is constitutional and what is not.

And until this Court speaks, all I can have are personal opinions.

Now, with respect -- again, to what I am describing as the jugular vein of this case, since the oral argument, further light has been shed on this field and this time Justice Frankfurter, on this specific case and under the signature of J. Edgar Hoover.

A new book has been published which currently is a bestseller which is entitled, “Masters of Deceit - The Story Of Communism In America And How to Fight It.”

And I pointed out in my supplemental brief that on page 298 of that book, Director Hoover has made the following statements.

And I suggest that they'd be read very carefully.

Such was the case of Colonel Rudolf Ivanovich Abel of Soviet Intelligence, who was arrested by the Immigration and Naturalization Service in June 1957, at the request of the F.B.I., after we had identified them as a concealed agent.

After his indictment in August 1957 on espionage charges, information was made public concerning him, which the F.B.I. could not previously disclose.

Now, what does this mean?

This means that it is exactly as though I asked Director Hoover who as I have repeatedly said, is a very forthright individual, two questions, one, “Mr. Hoover, did the Immigration and Naturalization Service take the steps which they did using these warrants, getting him onto the plane, throwing him into solitary confinement in McAllen, Texas, did they take their actions at your request?”

And his answer is, yes.

Now secondly, and perhaps more important, “Mr. Hoover, was it your best judgment at the time that until the man was indicted, that information concerning his activity should not be made public?”

And his answer is, yes.

Now, I am just pointing out that here are two statements which -- of which in my judgment, this Court will take judicial notice.

Here are two statements on this precise field and this precise case.

And on what is the big issue in this case, which is the extent to which this Court is going to tell our law enforcement officials, the extent to which they can use this new counter-intelligent powers which they've invested in the United States and where the borderline must be drawn with respect to the constitutional liberties and rights of those who live in the United States.

Justice Felix Frankfurter: May I ask you a question?

Which domain -- certainly it's hypothetical, but I don't think here that is here to answer.

Suppose the F.B.I. in the course of its information gathering finds out that John Smith is a deportable alien.

And suppose up to that time, the Naturalization and Immigration Service had never known the existence of John Smith or it's his illegal presence in the country.

Suppose they then issue an administrative warrant for his arrest, let's call it that and he is -- that the court order following it was deportation.

Is that a risk, if there's nothing more, took the facts until your assumptions are made, is that a risk and court order for deportation invalid as that any informant, because all that was done was done at the request if you please, or at the suggestion of the F.B.I.?

Mr. James B. Donovan: Well, Your Honor, first, I've never had such a case and I'm not sure I'd take it if I were offered it, but --

Justice Felix Frankfurter: Is that the counterable case?

Mr. James B. Donovan: But, in answer to you question, it would be my best judgment that the bureau possessing such information has indeed a duty to transmit it to Immigration and Naturalization.

But with respect to whether I could successfully protest the steps that followed --

Justice Felix Frankfurter: I -- I'm given no steps except that they've acted on it --

Mr. James B. Donovan: Yes.

Justice Felix Frankfurter: -- and the --

Mr. James B. Donovan: But --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. James B. Donovan: -- but they did use -- but they did use, Your Honor, under your hypothetical, they did use these administrative warrants.

And as I explain to Justice Harlan before, in a case where it did become very important to go in to every phase of those, I believe I would develop the point which I did make in my petition pertaining to the lack of procedural safeguards in these warrants.

In other words, Your Honor, if you recall, we discussed this at some length in the last argument.

It lacks virtually every --

Justice Felix Frankfurter: But the fact that the information on the basis of which administrative action for deportation was taken, came to information no matter how vigorously worded the -- are the F.B.I., that wouldn't be the basis according to that non-concentrate --

Mr. James B. Donovan: Not at all, Your Honor.

I -- as a matter of fact, if -- if Immigration and Naturalization can't rely in information they kept from the F.B.I., I don't know on what else they could act.

Justice Felix Frankfurter: What you've said (Voice Overlap) --

Mr. James B. Donovan: And the two are agencies -- should cooperate together, but all I'm explaining is that there is a degree here and this entire case shows us that in which in my judgment, this man was denied due process of law.

Justice Felix Frankfurter: I'm not going beyond the -- I'm not going beyond the -- it's a very difficult -- that's what you -- that's why we're here in -- that's why you brought the case.

It's very different.

But I do want to make it clear, I just want to have it clear end from you who have done as that if -- that the fact that Naturalization and Immigration moves at the stimulus of F.B.I., doesn't touch the legality --

Mr. James B. Donovan: No.

Justice Felix Frankfurter: -- of their country.

Mr. James B. Donovan: That's correct, Your Honor.

And -- and couldn't, because actually under the Federal Reorganization Act, Immigration and Naturalization, it should never be forgotten and the F.B.I. of both component parts with injustice.

In other words, at least as a matter of law, the director of the F.B.I. does report to the Attorney General of the United States, as does the director of Immigration and Naturalization.

Justice Felix Frankfurter: He isn't forbidden to go cross the hall and talk to the head of the other bureau who's part of the -- both of them being subordinate or one higher official did --

Mr. James B. Donovan: As a citizen, I would -- I would hope that many such conversations take place, Your Honor, on matters of mutual interest.

But this does not mean that the procedures available to the one for certain purposes can't be used in another way.

Accordingly, for all the reasons which I've set forth before the Court and with the authorities that I have set forth in the briefs that have been submitted to the Court, it's my contention as it was in the District Court, that the seizure of this man, seizure of all its effect, using these administrative warrants, taking him down to Texas, and six weeks after he was seized, first seeing the inside of a court and then on that background, that the man be indicted for a capital crime, tried and convicted on the massive evidence produced in that manner is my contention that the rights granted to all in the United States under the Fourth Amendment of the Constitution, have been violated that this judgment must be reversed, the matter remanded to District Court for further proceedings, not inconsistent with the decision of this Court.

Thank you.

Justice Tom C. Clark: Mr. Donovan, do you have a copy of (Inaudible) --

Mr. James B. Donovan: I'm sorry, Your Honor, I didn't hear you.

Justice Tom C. Clark: Do you have a copy of your charge, first memorandum?

Mr. James B. Donovan: I have this, Your Honor, but this belongs to the Eastern District Court and I promised to return it, but I can if Your Honors would wish this, I -- I frankly assumed that copies of these came up with the entire record.

I only found yesterday afternoon that there comes up to this Court only what's on the docket and they don't docket these.

I will be very happy to have this reproduced and properly furnished and its sufficient member to the Court.

Chief Justice Earl Warren: I think we can -- we can relieve you of that responsibility, Mr. Donovan, if you would leave that with us, we'll -- we -- we can post that (Voice Overlap) --

Mr. James B. Donovan: I'm very glad to, Your Honor.

Chief Justice Earl Warren: -- that are necessary.

Thank you Mr. Donovan.

Mr. Solicitor General.

Argument of Rankin

Mr. Rankin: Mr. Chief Justice, may it please the Court.

While it's pressuring the minds of the Court for the argument of counsel for the petitioner, I'd like to deal just for a moment, with the question of whether this particular issue is properly before the Court and later I would like to develop that at length, but since it's been called to the attention of the Court, I'd like to call attention to the evidence on that question and there's a --

Justice Felix Frankfurter: Would you be good enough to circumscribe exactly what you mean by whether this issue that you redefine the issue that you think is not --

Mr. Rankin: The issue that I think is not properly before the Court, is whether or not the arrest, under the administrative warrant was legally valid and --

Justice William J. Brennan: For what purpose?

Mr. Rankin: For the purpose of taking him into custody and incidents in relation to that.

Justice William J. Brennan: Well, to those who prove the indictment?

Everything that talks --

Mr. Rankin: Well, I don't want to claim too much in that regard because I think he was very specific about saying that he thought the arrest was legal and they were not attacking the arrest.

There are problems as to how far that carries you in the case that I think are involved --

Justice William J. Brennan: I may, but it's on the -- but I had the impression in effect, but in this context, it's not -- would have been the arrest.

Mr. Rankin: Well --

Justice William J. Brennan: Related to everything else that the warrants, whatever use they might have -- valid use for other purposes was not to be relied on to support the use of the evidence here, against him in the -- under the espionage indictment.

Mr. Rankin: That's the way I would construe his remarks Mr. Justice Brennan.

But I think in -- involved in that position is the problem that he assumes that evidence once legally obtained or instruments of a crime, or a contraband, or -- or weapons that might be used for escape, once they're legally obtained in any kind of a legal proceeding, are not available for any kind of a prosecution.

I don't think that's the law and I'll try to show the Court that its spoken on that's a question a number of times.

But I -- I think involved in the particular questions the Court has asked us as to whether these questions are properly before the Court, is the question of whether or not the -- the arrest was legal.

And there are some problems that I think get in a shaded area which he could properly have before this Court and I think they're in the questions that he had before the Court in the other argument.

But I want to call attention to how explicit they were about this arrest being legal as they viewed it, so that the -- the trial court tried to find out that very thing on page 19 of the Government's supplemental brief.

Chief Justice Earl Warren: Mr. Solicitor General, before you get to that, you -- you stated the issue in response to Mr. Justice Frankfurter's question.

Now, does that include the -- the right to the search that was made here on the basis of the administrative warrant?

Mr. Rankin: Well, Mr. Chief Justice, I think that the first you -- despite what counsel says you have to comport (Inaudible).

You first have to --

Chief Justice Earl Warren: Well, there's a legal -- and to the legal principle, as the legal principle in this -- in this case, does the administrative warrant itself, support the search that was made here?

Mr. Rankin: The Government thinks it does.

Chief Justice Earl Warren: That is your position?

Mr. Rankin: Yes, Mr. Chief Justice.

And I want --

Chief Justice Earl Warren: That is part of this issue as you have -- have stated it in response to Mr. Frankfurter's question -- Mr. Justice Frankfurter's (Inaudible) --

Mr. Rankin: Yes, Mr. Chief Justice.

Chief Justice Earl Warren: Yes.

Mr. Rankin: In this way that we -- the Government takes the position that if the arrest is lawful, then, there are certain rights that the officers have by reason of being a lawful arrest.

And that by the decisions of this Court permits certain things and it permits a search of the person, of the person taken into custody and for any contraband, for instruments of crime, for weapons or other means of escape.

Chief Justice Earl Warren: And that without regard to whether it is arrest -- an arrest for a crime or for deportability under -- under a warrant of this kind?

Mr. Rankin: Well, yes.

That's our position.

Chief Justice Earl Warren: Without regard?

Mr. Rankin: Yes.

And I -- I think it is important in that concept -- I'm not relying upon what you said as the Court prior to this time, for this last statement of, yes.

But I think it's important to examine what the nature of arrest is in regard to whether you would find properly that the incidence of arrest that you recognized in criminal proceedings should attach.

And the -- the reason that that has been permitted in the past in regard to arrests, to take into custody for criminal purposes or for several things that you've discussed in your opinions over the years.

And I think in this particular area, there is not much division in the Court as to -- assuming this was a crime, an arrest for a crime, what were the proper things that could be done in -- in regard to a search.

When you get away from the person or what's immediately in his presence, then there is -- has been a difference in the Court in some of the opinions as to how far you could go in regard to the search.

And Harris permitted it and even so far as four rooms.

But the reason that has been traditionally recognized in this Court, as long as this subject has been discussed by the Court's opinion, has been that you can't expect a man to be an officer -- to arrest a man without giving him a certain basic authority to protect himself.

Now, so you always permit, if you're going to let him take somebody in custody and I say this is always -- this is only been applied to criminal cases up to date, but I -- I'm trying to show that it applies properly to an immigration case to where you take him into custody.

Because you have the same problems of whether the man is going to try to escape and whether or not, if you find on this person and looking for anything that he might try to use in -- to escape, like a physical weapon of that kind or a blunt instrument or anything else, that knife that he could use, then if you find instrumentalities of a crime, or if you find contraband on this person, it seems to me that the Court has been generally in agreement over the years that you could take those as a part.

Now, it's the same problem that the officer has in regard to taking the man into custody for immigration purposes that it is for taking him into custody for a crime.

And that -- if you don't -- you can't accomplish anything, if a man is going to be able to keep his gun and get away right away or a knife or other instruments.

And it's always been recognized that once that if you can do that, then if you run across instruments out of a -- a crime or contraband, that the Government just doesn't have to say, “Well; we he won't pay any attention to those” and has been -- been permitted to take them.

Chief Justice Earl Warren: May I ask you just one more question and I'll try not to interrupt you anymore, but does your argument depend at all upon the character of this search as to whether it was a -- a limited search or as to whether it was a general search of the premises?

Mr. Rankin: Well, I think if you get in to the question of whether it's the general search, it's a much more difficult problem than it is if it's a limited search under the decisions of the Court.

Although, I think Harris and Rabinowitz goes a great place in regard to permitting a -- a general search.

Always, you can't search for evidence so that's conceited.

Chief Justice Earl Warren: And what -- what was this?

Do you (Voice Overlap) --

Mr. Rankin: This -- I will -- I'll -- Mr. Chief Justice, we -- the Government takes the position that these -- every one of these seven items that are in issue here, were instrumentalities of crime.

Chief Justice Earl Warren: You think I'm talking about the search now.

All I'm interested in --

Mr. Rankin: Oh, I'll --

Chief Justice Earl Warren: -- in the search.

Was this a general search or was this a limited search?

Mr. Rankin: The Government takes the position it was a limited search.

Chief Justice Earl Warren: Now, you can argue that on your own time --

Mr. Rankin: Yes.

Chief Justice Earl Warren: I just want to get the point in my -- in my mind.

Justice Felix Frankfurter: May I -- before you elaborate your argument, see if I have the -- what seems to me a clear issue between Mr. Donovan and yourself.

Mr. Donovan's argument -- Mr. Donovan's position is that he's indifferent.

He's indifferent with the determination whether the administrative warrant of arrest was legal and he's indifferent to that because he says “None of the subsequent -- none of the things that flowed from that arrest are thereby legalized.”

And you say if I get your argument that you can't tell whether what was done after the arrest was legal or not, until you determine whether the arrest is legal.

Mr. Rankin: Yes, Mr. Justice Frankfurter.

Also, if this was an illegal arrest, we would concede that you have no right to search or seize.

That all of the proceeds from first determining whether the parties or officers were legally there.

Justice Tom C. Clark: Well, your contention is that was admitted to himself?

Mr. Rankin: Yes, Mr. Justice Clark.

It was so explicitly asked, they were asked several times when we set it out on page 19 of our brief and they said they weren't even so far as to say, we are not contesting that at all, we thought -- we agree that it was their duty to arrest this man.

Now, I don't mean to say by that but they were saying that there was a -- a right to arrest and make all the search because they claimed the search was in bad faith.

That was their basic claim in this case.

That even though the arrest was legal, the Government was trying to get this evidence all the time from the beginning for the espionage case and was not in good faith in trying to get this man arrested and take whatever was properly a matter of search in connection with that purpose.

Now, that question --

Justice Felix Frankfurter: If the arrest -- if the arrest doesn't bear on what was done in Texas?

Mr. Rankin: No.

Justice Felix Frankfurter: But the arrest is from your point of view, bears on whatever search and seizure may have taken place at the hotel and in Mr. Latham's -- in Mr. Donovan's view, is irrelevant to that.

Mr. Rankin: I think that's a --

Justice Felix Frankfurter: That's the clash --

Mr. Rankin: -- clash Mr. Justice.

Justice Felix Frankfurter: All right.

Mr. Rankin: Now, we think that the fact that the two courts have decided this question below in regard to the good faith of the matter and we've tried to present that in our last argument in our briefs in great detail should be a great weight before this Court.

So, we then -- I'll followup later where this issue was properly before the Court, but we then turn to the questions that the Court asked now as to rearguing.

And bear that as we understand it, the first question is, was this warrant properly issued in the first place?

And we think that means whether or not, it was properly issued under the statute and was lawful.

Now, then whether or not it was a valid warrant for the arrest and further whether before the search and seizure.

I'd like to treat that first as to whether or not, it was lawful under the statutes.

And I think that involves first, the assumption that the Fourth Amendment does not apply, then I'll proceed next to the fact that if the Fourth Amendment applied, we satisfied that.

And last, the effect on the search and seizure.

Now, the statute for great many years, some 75 years and then you go back to the alien and sedition laws clear back to 1798, provided for the warrant of arrest or the right to take into custody a person who was to be deported, to be a matter of executive action and has not provided at anytime throughout our history for a judicial review -- or a requirement that the warrant be issued by a magistrate as distinguished from the executive officer.

Now, the statute we have set out in -- as if in the appendix to our brief, prior brief, not this last supplemental brief, provides explicitly that the Attorney General shall have the authority to issue such a warrant.

And then there's authority for the Attorney General to delegate his duties and there is a provision in the regulations for how that shall be done and then there are special instructions.

And the instructions provide that deportation shall be brought in a certain manner and that it provides for a requirement that the warrant shall be issued only upon the -- being developed, the prima facie case or the District Director or a deputy director to be satisfied that there was a prima facie case just by a deportation.

And then --

Justice Hugo L. Black: Which regulation is that?

Mr. Rankin: That is a -- the appendix to our supplemental brief, our last brief on page 52.

And that's the instruction --

Justice Hugo L. Black: That's to show cause why he should not be deported?

Mr. Rankin: Yes.

Justice Hugo L. Black: That's not for the arrest?

Mr. Rankin: No.

The arrest is covered on page 64.

Justice Hugo L. Black: 63 and 64 of the original brief.

Mr. Rankin: Yes, of the original brief.

And that authorizes the taking into custody under a warrant of arrest, when it appears necessary or desired.

Justice Hugo L. Black: Well, what purpose did it say?

There's some (Inaudible) there.

Mr. Rankin: Yes.

Justice Hugo L. Black: I don't know what just comes into that.

Mr. Rankin: Well, I think that's implied.

I don't recall the language after but -- but, I think it's implied in connection with the deportations at the commencement that if you -- Mr. Justice Black on page 63, I think refers back to the deportation procedures.

Justice Hugo L. Black: Subject to supervision?

Mr. Rankin: The supervision is directed because it's left in the hands of the District Director at that level and presumed to be an act with the Attorney General.

There is no supervision of a court or a magistrate involved.

Justice Hugo L. Black: If it's your argument, I'm not quite clear whether -- if it's your argument that when arrest of this kind for this purpose, the rules that courts have worked out with reference to search and seizure as an arrest for crime are equally applicable to this so called arrest for deportation purposes.

Mr. Rankin: Well, it's -- it's our argument that they should be, because the same problems are involved in taking a person into custody for this purpose and the reasons that the courts have allowed such as search and seizure in criminal cases pertaining to this kind of a proceeding in like manner.

Justice Hugo L. Black: Well, what then would be -- they have a right to search and seize here under an arrest of this kind?

Mr. Rankin: Well, if you relate it to criminal proceedings, what you -- permit (Voice Overlap) --

Justice Hugo L. Black: This is not criminal.

Mr. Rankin: This is not criminal and the Court said it's civil.

And the Government takes position that there should be greater latitude in the civil proceeding than in a criminal proceeding.

But separate and apart from that, you -- and if the Court has -- the courts have recognized that when a person has to be taken into custody, there are certain searches allowed in early English times down through the years because of the problems involved in taking them into custody.

And amongst those are -- are that you search this person.

Justice Hugo L. Black: For what?

Mr. Rankin: For --

Justice Hugo L. Black: Weapons?

Mr. Rankin: Weapons and instruments that might be used to escape or to destroy the officer.

You can also search him for instruments of criminality and contraband.

Justice Hugo L. Black: Well, that would -- the criminality, but there is no criminality here.

Mr. Rankin: Well, these particular --

Justice Hugo L. Black: In this kind of a warrant.

Mr. Rankin: These particular evidences or these particular things that were secured by the search were directly connected with crime.

Justice Hugo L. Black: That's right.

But -- but that has nothing to do with the deportation, is it?

Mr. Rankin: Well, no.

But if -- if the officers properly on the premises, lawfully there, you don't say to him if he finds a body there or some instruments, the tools of a burglar that he can't take those into his custody.

It's always been.

Justice Hugo L. Black: Do you mean -- you mean that in the old days, when they could arrest a man to death, for instance?

They did arrest him for death?

The officers would've had the same rights to search and seize both what he had in this possession and all around in his room and house as they would if they arrest him for -- for (Inaudible)

Mr. Rankin: Well, I don't know why would -- I think that Davis and Zap would hold that.

I think they're -- they were locally making an examination into the records in the one case and they discovered these coupons, gasoline coupons, ration coupons and the Court held they could lawfully take those.

And in Zap, you can have the case where they have discovered a check and the majority of the Court held that was an instrument of the crime as a majority of those sitting and held that even though that was not in that particular matter, a criminal inquiry that the evidence of instrumentality of crime itself could --

Justice Hugo L. Black: Could they arrest him there?

Mr. Rankin: As I recall, they had a warrant in one of the cases, but --

Justice Felix Frankfurter: I -- I have two separate questions if I may suggest, Mr. Solicitor, namely, how far you may search the person upon a legal arrest for the things in his possession and it's totally different -- for me, a totally different question, is what the range of what is called a search of person?

What may you take that's physically not on this person or not visible?

Mr. Rankin: I think that's --

Justice Felix Frankfurter: Well, that's two very different questions.

And I think -- and I think the proposition you're tendering as I understand you is that if there's a legal arrest, you may search the person in order to be sure that the arrested person isn't going to do violence or have means of escape to avoid the arrest.

And if in the course of searching a person, you find for instance, a pocketful of narcotics, illegal narcotics, illegally possessed, you may take also those off.

That's your position.

Mr. Rankin: That's right, Mr. Justice.

Justice Felix Frankfurter: But no matter what the -- no matter what he's arrested for, if the arrest is legal, then you may search this person.

But I suggest there's a totally different question and that's the one that was raised in Davis, in Zap, Harris, et cetera, all the rest of them namely, what the range of that implication is.

Mr. Rankin: Mr. Justice Frankfurter, I -- I agree with that except that I -- whether the Government takes Davis and Zap and Harris and Rabinowitz as the law in regard to criminal proceedings.

Justice Felix Frankfurter: I didn't mean to imply that you shouldn't.

Mr. Rankin: And I -- I recognized that, Your Honor, as the difference in regards to those, but I was trying to take first to the question of search of the person and then the Court has in Davis and Zap and Harris and Rabinowitz recognized that that search of a person could be extended to what was reasonably within his control.

And Harris has gone so far as to recognize in the four rooms that he -- he had that -- those were under (Voice Overlap) --

Justice John M. Harlan: Could I ask you an interstitial question before you go on.

Mr. Rankin: Yes, Mr. Justice.

Justice John M. Harlan: Was there an immigration offense -- offense under the immigration law as distinguished from the events of espionage that was involved here?

Mr. Rankin: The -- yes.

The -- the same acts of not reporting the address of the petitioner to the Attorney General was an offense under the immigration law.

Justice John M. Harlan: What was the offense?

Mr. Rankin: It was a misdemeanor.

Justice John M. Harlan: What -- what was the offense?

Mr. Rankin: It was a failure to report his address was --

Justice John M. Harlan: Failure to register.

Mr. Rankin: That's right.

And that identical act without more was -- so that the very same thing that was a deportation offense and for which he was arrested was also a misdemeanor (Voice Overlap) --

Justice John M. Harlan: And do you -- do you argue that some of the things that were seized here were instrumentalities of that immigration offense?

Mr. Rankin: Yes.

We -- this position of the Government of the four items in regard to alien issue that is the -- the fictitious birth certificate about Martin Collins, this spurious birth certificate about Goldfus, the savings bankbook in the name of Goldfus and the vaccination certificate that's the four items were all involved in his trying to preserve or establish that he was lawfully within the United States when he wasn't.

Justice John M. Harlan: To that extent, you don't have to go beyond whatever rights if it's the man in search, if he or if there are any, we don't have to go beyond the case of those under the immigration laws.

Mr. Rankin: That's right.

Now, beyond that, the other three items, two of them were taken out of the wastebasket and thrown away by the petitioner before the search ever occurred.

And the other one, he was slipping up his arm at the time and they caught him all he was doing.

And that seems to us that those are clear items, the two that he abandoned the wastebasket were certainly items that the -- the officers could search for and if they got a permission from the only man that could have any control of it, which was the hotel owner or the hotel manager.

So those two items were -- and they were evidence and there was more than evidence.

They were instrumentalities for carrying on the crime of espionage.

One of them was a sandpaper block that was so made that it could be cut -- it could be opened up, it was cut apart and it conceals some microfilm that revealed the time of radio broadcast that could be received in regard to espionage and the Defense Department checked that and found that there were communications of the exact type that was -- were contained in one of these receptacles that was a code, special code in red and black letters of five inches.

Justice Hugo L. Black: You mean those are sufficient to give the officers reason to believe he was guilty of espionage?

Mr. Rankin: No.

The evidence beyond that was overwhelming that they had without these items.

And if they had raised the question in the manner that -- of objecting to the arrest and saying that these items were not admissible for that reason and the Court -- and the Court could then in the -- in the lower court could either have decided that this kind of an arrest was subject to the Fourth Amendment if it had and if it was -- had come to the conclusion that we have not -- the right to search and seize these items because of that.

They could have eliminated -- eliminated them and we would've had overwhelming proof against this petitioner of his espionage activities.

Justice Hugo L. Black: What about 1357 (Inaudible) to get a warrant?

Mr. Rankin: If --

Justice Hugo L. Black: 1357?

Mr. Rankin: If he was -- that --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Rankin: -- that's in regard to the crime.

Well, that is something that was not done.

But, it's the position of the Government that you don't go back of the point of the search and seizure, but whatever -- whatever wrong occurred was at that point and the action with that question would be -- it would have to be raised and would not affect the validity of the search and seizure or the arrest prior to that time.

Justice Hugo L. Black: (Inaudible)

Mr. Rankin: No.

It would have to be squarely raised in regard to that.

Now, he -- he could've made a motion and say -- said that he had not been taken before a magistrate.

I think the Mitchell case would have some bearing on that because even though -- if you recall this -- the defendant or petitioner in -- in Mitchell was kept -- a period of time as recognized is unlawful, after his confession.

Nevertheless, the Court held the confession having occurred properly even though they kept him -- they didn't take him to an officer for a long time later, the confession was admissible.

And I don't think that -- I think you'd have to -- compartment this case in order to examine the various steps and you don't go back of where the error occurred to condemn the evidence.

Chief Justice Earl Warren: Mr. General, just to get back to the search again.

Suppose this man's home instead of being just one room and one small room and a bachelor has been a 10-room house, would this warrant have supported searching through his entire home has -- that was done with this man's entire home?

Mr. Rankin: Well, I -- Mr. Chief Justice, I don't think that this Court has ever spoken beyond four rooms so far --

Chief Justice Earl Warren: Well --

Mr. Rankin: -- and --

Chief Justice Earl Warren: -- well, let's take it forward (Inaudible) I -- I didn't pick that in my (Inaudible)

Mr. Rankin: In -- in Harris, the Court found that there was sufficient control to permit the -- a search and seizure over the whole four rooms.

Chief Justice Earl Warren: Yes.

Well, I'm speaking of the administrative warrant to (Inaudible)

Mr. Rankin: Well, if you're going to apply the Fourth Amendment, if -- I would seem that you have -- you want to apply it so that it permits the same latitude because certainly, this deportation case is no worst than a criminal case if you're going to apply it.

You -- it would be as extreme a rule as the Court has to require that they have -- they'd be there lawfully in order to make the search.

And once they are, they can exercise the search and seizure within the area that the -- that is within -- that is under the control of the petitioner.

Now, under that kind of an assumption, I think it's very proper that with the administrative warrant, you wouldn't apply any -- any worst rule than you would if it was a criminal action.

Justice Felix Frankfurter: May I -- may I arrive at Mr. Chief Justice's question?

Mr. Rankin: Yes, Mr. Justice.

Justice Felix Frankfurter: That's before you sit down, can you speak and answer, could you, suppose Harris have been decided contrary wise, suppose it would -- that's in -- that's in a reversal there instead of an affirmance (Inaudible) would that --

Mr. Rankin: Control this case?

Justice Felix Frankfurter: Would that make it different at least, not -- would that make a difference?

Or what would be the -- let me put it this way, what will be the bearing on the Government condition that Harris had been reversed instead of what's now?

Well, you couldn't answer.

Those are now --

Mr. Rankin: Yes.

Justice Felix Frankfurter: -- you wouldn't, of course, in your own arranged doctrine.

Mr. Rankin: No.

I'd -- I'd like to try to answer that.

Justice Felix Frankfurter: All right.

Mr. Rankin: First -- first, Mr. Justice, if the position in Harris was the minority position and I don't think that would control this case.

In the first place, we didn't search any four rooms.

We searched those that -- the only room that was right there under his control and I think the difference between the control is very real, where he had a small hotel room like this as the evidence shows and four rooms of the house that include a kitchen, a bathroom, as well as a living room and a bedroom.

But beyond that, I don't think that we have a comparable situation, because what the only items in issue here were the -- these alienage, four items that I referred to and the three items, two of which were in the wastebasket and the one is slipping up his sleeve.

Now, that the Government, we think that the wastebasket that was abandoned was clearly outside of any -- of the -- the most extreme position.

In the Harris, the other way, would not affect in any way our right to take that.

Then when we take what was up his sleeve, we say that's a special case.

And all the cases, if you're going to let us search at all of his person would permit an instrument of -- of criminality if you've taken out of his sleeve.

Then, when you get to the items of alienage, it isn't clear just what part of his things those were taken from.

We think that burden was on the petitioner to show exactly where they were taken in order to be able to say, “He couldn't do this or that.”

But beyond that, we say that the -- this man was asked, “Are you going to keep your things here, in this hotel room, or you -- you want to go?”

He says, “I want to take my things.”

If you're going to go and I told him where, they were going to take him and arrest, “I want to take my things with me.”

Now, they -- they then -- and he said he wanted to leave a few things.

He wouldn't take them.

He was going to throw them away.

Then they proceeded to help him pack.

Now, it seems to me that its -- under all of those rules regardless of the dissent in Harris and Rabinowitz in other cases that its unreasonable to ask these officers to -- if they were going to help him to not -- when they put -- picked up a piece of apparel or some other thing and help him put in the suitcase, it was wrapped around a gun and say, “Oh, we forget about that.

Maybe he can't get to the suitcase as fast as we can and we don't have to -- we can't touch that and the other things.”

So, it seems to me, its quite different when you pick up these things to move it and by the very nature, they have to be picked up pretty much his items and put in the suitcase to see whether there's any instruments of criminality or contraband in connection with him, than if you're going around and pulling suit files or if he wasn't going to move from there, if they've gone through all the covers and search his things and handled in that matter.

Now, that's what --

Justice Felix Frankfurter: If I understand you to answer Justice Harlan a little earlier that all the four items, the other four items, were -- were tied to or related to or relevant to his deportability?

Mr. Rankin: Yes, Mr. Justice.

Now --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Rankin: I'll repeat what those were.One was a fictitious birth certificate in the name of Martin Collins and that was the evidence otherwise shows very clearly that the Government knew long before this and these immigration officers knew that that was one of the aliases he used.

Another was a spurious birth certificate.

One of them, there was the Martin Collins, there was someone in existence and I think that was when it's forged.

The Goldfus one was the -- for a child that had died and the parents by very curious situation had named the second child by exactly the same name, which he didn't know but he developed this spurious in the name of Goldfus which was another one of his aliases.

And then he had a fraudulent vaccination certificate that he would need in connection with maintaining his position in the country.

That was in the name of Goldfus as I recall.

And the fourth one was a savings bank of the East River Savings Bank, a bank deposit book that was in the name of Goldfus.

Chief Justice Earl Warren: We'll recess now.