FRANK v. MARYLAND
Legal provision: Amendment 4: Fourth Amendment
Argument of Benjamin Lipsitz
Chief Justice Earl Warren: Number 278, Aaron D. Frank, Appellant, versus State of Maryland.
Mr. Lipsitz you may proceed.
Mr. Benjamin Lipsitz: May it please Your Honor.
In this appeal from his conviction in the Criminal Court of Baltimore, appellant challenges the validity of one of the health ordinances of the Mayor and City Counsel of Baltimore under the Constitution of the United States on the ground that this ordinance purports to impose upon him a criminal penalty for mere refusal to submit to an invasion of his home by a health officer of that city, acting on a suspicion alone and without any search warrant.
The ordinance of course is limited in its operation to the boundaries of the City of Baltimore, but the problem that is here presented is broader in scope and raises the question whether the homes of the people and the privacies of life shall be subject to violation by government employees without warrants throughout the nation wherever men live under comparable health regulations.
The immediate issue is relatively clear cut, the question maybe perhaps best phrased, “can a health officer of the City of Baltimore lawfully enter and search a private dwelling house where the owner or occupant objects?”
Appellant contents that he cannot, that the ordinance under which he purports to act is unconstitutional in that it subjects him to an unreasonable and an unlawful search, a depravation of his liberty and property and a trespass upon his property all in violation both of the Fourth Amendment to the Federal Constitution and of the Due Process Clause of the Fourteenth Amendment.
The ordinance is set out in the record and in appellant's brief, and it reads as follows.
It's at page 56 of the pamphlet, copy of Article 12, which is the health article of Baltimore City Code or at page three of appellant's brief.
Rule 120, whenever the Commissioner of Health shall have cause to suspect that a nuisance exists in any house, cellar or enclosure, he may demand entry therein in the daytime and if the owner or occupier shall refuse or delay to open the same and admit a free examination, he shall forfeit and pay for every such refusal the sum of $20.
Now the case arose in this manner.
The Mayor and City Counsel of Baltimore, exercising within the limits of that city all the police power of the State of Maryland, made this ordinance.
On February 27, 1958, a inspector or a sanitarian gentry, an officer of the Bureau of Road and Control of the Baltimore City Health Department received the complaint of rats in the cellar of a person who lived in 4300 block of Reisterstown Road, Baltimore, Maryland.
This is the block in which appellant's house is located.
Acting on this complaint sanitarian gentry went to appellant's house.
He had with him two student inspectors who were being trained to take places in the multiple dwelling inspection program of the city.
As a prelude to his examination of appellant's property, he knocked on the door, but no one responded.
So began to make an inspection of the outside and the yard of the premises.
Now the house which appellant occupies is a detached plain wooden structure.
There are pictures of the house in the record opposite pages 29 to 35, there are eight photographs there which were introduced in evidence by the state, they show the house and part of the ground.
The inspector looked around the yard and he testified in the Criminal Court of Baltimore that he saw undue trash and debris.
He testified that he saw a pile which he later determined was composed of rodent feces, straw and other items.
He did not at any time, although he was pressed to do so, identify the feces as rat feces, he insisted that they were rodent feces.
At this point he apparently felt that he had cause to suspect that there was a nuisance in appellant's house.
Appellant about this time emerged from the house and spoke with the sanitarian in the yard.
He asked the sanitarian what he was doing on the property, and the sanitarian gentry identified himself, showed his badge, explained his suspicions and demanded entry to the cellar of the house to make an inspection for rodents or rats.
Appellant informed him, according to the sanitarian's testimony, that he would not let him in the house.
The language that he used was, according to the sanitarian, you will have to get a search warrant if you want to get in this house.
This is set out at page 19 of the record.
The sanitarian did not enter the house.
On the next day, February 28th he returned to the house with two police officers.
He stated in his testimony that the purpose of the return visit was, “That he wanted some witnesses,” this is set out at page 21 of the record.
He did not find anyone at home on this occasion.
He made an outside inspection of the premises again.
He did not observe the interior of the house on either visit.
He then betook himself to a magistrate, to Magistrate Neiven, who was one of the police magistrates in Baltimore City and who, it happens, sits in the Housing Court in Baltimore City ordinarily.
He went to Magistrate Neiven and he made affidavit that he suspected that there was a nuisance in appellant's house consisting of undue debris, trash, and rat infestation and that appellant had refused to allow him entry to the house.
And based on this affidavit a warrant was issued and on March 5, 1958, one year ago exactly today, appellant was arrested while he was seated in his automobile on the street by a police officer and he was taken to the station house.
Now on the next day March the 6th he came up for trial before the magistrate on the complaint of the sanitarian and he was duly found guilty and fined $20 as the ordinance provides.
He took an appeal as is his right under the practice in Baltimore City to the Criminal Court of Baltimore which ordinarily sits as a nisi prius court, but which has special appellate jurisdiction in appeals from police magistrates, and he was granted there a trial de novo as is the practice at Baltimore City.
The case was heard again, the inspector testified, the police officer testified, the appellant did not testify in either case and the court entered a verdict of guilty and fined the appellant $20 in accordance with the ordinance.
Appellant then asked the Court of Appeals of Maryland to hear this case on certiorari.
There is a provision in Maryland law for that sort of procedure.
It's little used and the Court of Appeals has discretionary jurisdiction to hear a case when they think it's of such general public interest that they should take it up and determine it.
In this case, they denied certiorari and the appellant filed his appeal to this Court.
None of the courts below entered any opinion.
However, the Court of Appeals of Maryland, prior to this case, I believe in 1953, had decided a case called Givner against the State, in which among other points the same section was before the Court on the question of its constitutionality.
Appellant in all the lower courts made his defense on the constitutional grounds, and in each instance the verdict against him necessarily sustained the validity of the ordinance.
Now appellant contends that a health officer of Baltimore City cannot lawfully enter his home without a search warrant when he objects.
He contends that this ordinance is repugnant to the Constitution.
It's repugnant to the Fourth Amendment.
It's repugnant to the Due Process Clause of the Fourteenth Amendment.
Justice Potter Stewart: Mr. Lipsitz.
Mr. Benjamin Lipsitz: Yes Your Honor.
Justice Potter Stewart: Is it a criminal offence under the ordinance, under the Baltimore ordinances for an occupier of a house to permit or suffer a rat infestation or a collection of debris in his house?
Mr. Benjamin Lipsitz: In the Baltimore City Health Code Your Honor, the entirety of which is included in the record in this orange covered pamphlet.
There are a number of sections pertaining to hygiene of housing.
Among the requirements of those sections in my understanding is that an occupier of premises in Baltimore City shall keep the premises clean, and free from all sorts of debris and anything that could amount to a nuisance
.There is one specific section which says that he shall keep the premises free from rodent infestation.
I don't --
Unknown Speaker: (Inaudible)
Mr. Benjamin Lipsitz: I don't intend to quote the words, but there is a provision to keep the premises free from rodent infestation I believe.
Justice Potter Stewart: Is it a misdemeanor not to do it?
Mr. Benjamin Lipsitz: I'm reading from Section 112 Your Honor.
Every dwelling, that's on page 104 or folio 54 of the orange pamphlet, Section 112, it reads, “every dwelling and every part thereof shall be kept clean and free from any accumulation of dirt, filth, rubbish, garbage or similar matter and shall be kept free from vermin or rodent infestation, that may have been why the inspector insisted on rodent rather than rat.
Unknown Speaker: (Inaudible)
Mr. Benjamin Lipsitz: Well as to that Your Honor, there are penalties for specific sections in this Act.
There is blanket penalty section in this Act which says if a -- if an offense is not otherwise punished then the fine shall be $5 or $20 or something like that, I don't remember the exact amount.
This -- these sections, some of them provide for notices.
They make the provisions for notices that are not mandatory, but discretionary.
Sometimes the procedure is that a notice is given to correct the condition which the inspector thinks is objectionable.
Then the penalty accrues when you fail to correct on a second inspection.
Is that Your Honors point?
Unknown Speaker: (Inaudible)
Mr. Benjamin Lipsitz: Thanks.
Now there cannot be too much emphasize in my submission in this case that the place that this sanitarian was trying to get into more of – on his own volition and without a warrant was a man's private dwelling house.
There is no, nothing to do here with any place that might be affected in anyway with a public interest.
This is a place where a man lives.
This Court has itself said in the Agnello case that while the question has never been directly decided, it had always been assumed that a lawful search of a man's private home could not be made unless incident to a lawful arrest or unless there was a warrant.
Now there was no arrest lawful or otherwise incident to this attempt to make the search.
The arrest --
Justice John M. Harlan: It was required here.
You concede that the information that the health officer had would have sufficient to justify the issuance of a warrant?
Mr. Benjamin Lipsitz: I do not concede that point Your Honor.
I don't think that the point really reaches the heart of this case.
The ordinance as I have stated only requires cause to suspect.
I submit to Your Honor that even if the requirement was for a probable cause and even if the facts which the sanitarian claims to have observed were sufficient to amount to probable cause I would contend that he should be required in order to meet the guarantees of the Constitution to take this probable cause to a magistrate, rather than to himself make the determination.
Justice John M. Harlan: Now supposing he had gone to a magistrate, what would have been your position as -- and a warrant had issued on this information, what would --
Mr. Benjamin Lipsitz: Had he gone and gotten a warrant, my client informed him that he would have let him in the house.
My -- I stand this before this court not to contest the necessity for inspections as such.
I am really here on a procedural point.
I don't say that the Health Department of Baltimore should not keep the city clean, obviously they should and obviously this is a proper legislative determination.
I contend that the method that they use here is so vagrant, so far beyond the balance of reasonableness, so directly contrary to everything that in this country people have been taught amounts to due process and fair play if you want to put it that way.
Here is a situation where an inspector himself decides that he is suspicious and then he himself decides that he will go in and when you are here before the magistrate on the charge that you refuse, what do you have a chance to contest.
Justice John M. Harlan: All I want to know is whether if he had gone before a magistrate and the magistrate had issued a warrant, do you claim that the information was inadequate?
Mr. Benjamin Lipsitz: As a matter of technical law Your Honor I think that the information that he was able to testify to did not amount the probable cause to suspect anything inside the man's house.
Yes, I'd say that it would be insufficient technically.
I do not base my contentions on that point however.
I am willing to say -- I am willing to agree, if necessary, that what he saw amounted to cause to suspect or even to probable cause.
If that is the point that Your Honor raised.
If I have not made it clear I wish Your Honor would inform me and I will try to reach the point better.
Justice John M. Harlan: All I was wondering was whether apart from the constitutional questions that you are raising, you are making a claim here that the information on which this officer acted was inadequate under the statute to justify his --
Mr. Benjamin Lipsitz: Well that claim was made in the Trial Court, Your Honor.
We content that after the -- we contented first on the grounds of the constitutionality and then we contented that even assuming that the ordinance was valid, the facts which he testified to were not sufficient to establish cause to suspect which is what the ordinance required, that was my contention in the Trial Court.
And this -- and this Court also stated in the Agnello case that, “The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws” and I think that's a statement that's just as effective today as at the time that it was first written.
Justice Felix Frankfurter: This -- this a new statute authorizing these --
Mr. Benjamin Lipsitz: This ordinance Your Honor has been, this ordinance, this ordinance has been on the books of Baltimore city to my knowledge at least since 1879.
Justice Felix Frankfurter: Have there ever been any statutes, any authorizations like this pertaining to health –
Mr. Benjamin Lipsitz: Not the –
Justice Felix Frankfurter: -- in your state, in the Free State of Maryland.
Mr. Benjamin Lipsitz: In the Free State of Maryland Your Honor I know only of this ordinance and perhaps the question came up by the simple occurrence of circumstances.
Many search --
Justice Felix Frankfurter: Even though the state makes an historical examination (Inaudible) these kinds of things is (Inaudible)
Mr. Benjamin Lipsitz: Well the particular ordinance Your Honor has been on the books.
Justice Felix Frankfurter: I know this ordinance, but this kind of thing helps better in the (Inaudible) health officer.
Mr. Benjamin Lipsitz: I have been able to find no case or authority which directly holds that in health situations you are entitled to use this type of ordinance.
Justice Felix Frankfurter: I am not suggesting there was one.
I am asking whether there was -- there was legislative enactment in the Free State of Maryland antedating, antedating the formation of this union of this kind of thing.
Mr. Benjamin Lipsitz: I know of none Your Honor.
Justice Felix Frankfurter: You examined your (Inaudible)
Mr. Benjamin Lipsitz: I cannot say that I made the examination that a scholar of the particular point might make, but I made what I consider to be an adequate examination for the purposes of my case.
I did not find any legislation that might have existed of that nature.
I find no basis in the history of Maryland for this ordinance.
Justice Felix Frankfurter: You get (Inaudible)
Mr. Benjamin Lipsitz: I am aware of that Your Honor.
Justice Felix Frankfurter: You look at those?
Mr. Benjamin Lipsitz: No sir.
If Your Honors please perhaps the most, the most earliest aspect of this ordinance is this.
In my submission this ordinance not only violates the federal guarantees which I have mentioned, in effect they, it attempts to outlaw them.
This ordinance imposes a criminal penalty for the mere refusal to submit to an inspection accompanied by (Inaudible) on substantial constitutional ground.
Justice Felix Frankfurter: Well the question, if they're empowered to authorize a health officer to make certain inspection, would you then challenge the validity of the legislature (Inaudible) would you challenge the power of the legislature to impose a fine for not letting (Inaudible)
Mr. Benjamin Lipsitz: I would Your Honor --
Justice Felix Frankfurter: That is --
Mr. Benjamin Lipsitz: In this manner, to impose the fine in the manner that it does.
Justice Felix Frankfurter: (Inaudible) it would authorize a health officer to go in there and (Inaudible) assume that would not be unconstitutional, would it be unconstitutional to say, if you don't let him in, you must pay $20?
Mr. Benjamin Lipsitz: No, Your Honor it would not.
Justice Felix Frankfurter: If you go back now to the fact that he was fined for not letting him in, but did he had the right not to let him in?
Mr. Benjamin Lipsitz: That's right, but I go back a little further I think.
I go back to the fact that in my submission the penalty is imposed for the refusal to let him in.
Justice Felix Frankfurter: I see therefore our question and your problem is, is it – is the state of Maryland is barred from such a statute by anything in the federal constitution.
Mr. Benjamin Lipsitz: That's right –
Justice Felix Frankfurter: (Inaudible) is it barred from saying if you don't let him in you must pay $20.
Mr. Benjamin Lipsitz: That's right Your Honor.
My contention is that the state of Maryland or any state in effect is barred by the federal constitution specifically by the Fourth and the Fourteenth and more specifically Due Process Clause of The Fourteenth to make this type of ordinance.
This question was before your Honors in the case of District of Columbia against Middle in 1952.
In the Middle case Mrs. Middle who was the resident of District of Columbia was arrested for interfering with a health officer of the district.
She had locked the door to her home and refused to admit the health inspector on the ground that it would abridge her constitutional right.
Now she was convicted in the lower court.
She was – she went to immediate appellate court, the Municipal Court of Appeals and the Circuit Court of Appeals here held in her favor on constitutional ground and the case came here.
This Court saw no necessity to decide the constitutional question.
This Court found in Mrs. Little's favor by determining that what she had done was not interference within the meaning of the pertinent District of Columbia's statue.
However, in reaching that decision and stating the reason for that decision I submit to Your Honors that this Court really condemned enactments of the type that we are dealing with in the instant case.
Mr. Justice Black in writing for the majority in stating the reason why this was not interference Mr. Little's action said as follows.
The right o privacy in the home holds few higher place in our system of laws to justify a statutory interpretation that would impose a criminal punishment on one who does nothing more than respondent did here.
Now what did respondent do in the Little case?
She knocked her door and she told the health inspector that you'll have to get a warrant to get into this house.
The circuit of appeals speaking through Judge Prettyman said that's right, you have to.
This Court said we don't have to decide the question, but if we're to say that this is a crime it would abridge in effect the constitutional guarantees.
That's the reasoning it seems to me of the decision of this Court that what Mrs. Little did, a mere refusal to unlock the door accompanied by substantial constitutional remark (Inaudible) could not validly made a crime.
Justice Felix Frankfurter: Can we dispose of this case (Inaudible)
Mr. Benjamin Lipsitz: Not in my submission Your Honor because the ordinances in Baltimore City required only that the appellant refuse to admit the health inspector.
Justice Felix Frankfurter: Well, much – and more importantly it seems that your court has held that this is a violation of that statute.
Mr. Benjamin Lipsitz: That's true Your Honor.
Justice Felix Frankfurter: (Inaudible) Little case and it wasn't.
Mr. Benjamin Lipsitz: And you have held in Little case that it wasn't, not on constitutional ground but simply because this Court found it necessary to say that what Mrs. Little did couldn't be a violation of the law or it was –
Justice Felix Frankfurter: (Inaudible) we found that it wasn't a violation of the statute, but you come here with your court having decided that under Maryland law this is a violation of the statute.
Mr. Benjamin Lipsitz: Well, if Your Honor –
Justice Felix Frankfurter: Isn't that right?
Mr. Benjamin Lipsitz: That's right.
Justice Felix Frankfurter: Alright -- (Inaudible)
Mr. Benjamin Lipsitz: You can't dispose of this case by avoiding the constitutional question if I may out it that way.
You interpret this –
Justice Felix Frankfurter: That's the right way.
Mr. Benjamin Lipsitz: It may be Your Honor.
In the little case you interpret this, the word interfere, and you say that this can't be interference because if you call it interference it is such invasion of the privacy of a home that it wouldn't be right.
In the instant case Your Honor, the only question is did --
Justice Felix Frankfurter: We didn't even decide that.
Mr. Benjamin Lipsitz: Sir?
Justice Felix Frankfurter: We didn't even decide that.
We said we don't have to reach that question.
Mr. Benjamin Lipsitz: Well, Your Honor --
Justice Felix Frankfurter: Because it was an interference.
Mr. Benjamin Lipsitz: You said -- you interpreted the meaning of the word interfere which none of the lower courts had done in that case, and you found in Mrs. Little's favor by saying that standing on Constitutional grounds and refusing admission to an inspector without a warrant was not interference, and Mr. Justice Black's statement which in my submission explains the rationale of that decision, is that the right to privacy in a home holds such a high place in our laws that any other statutory interpretation would impose a criminal punishment and would be unjustified.
Justice Felix Frankfurter: Did we say that?
Mr. Benjamin Lipsitz: I'm reading Mr. Justice Black's --
Justice Felix Frankfurter: Did we ever say that?
Mr. Benjamin Lipsitz: Sir?
Justice Felix Frankfurter: If it was so interpreted it would be Constitutional.
Mr. Benjamin Lipsitz: You didn't use those words but I submit to Your Honor that there is no other reason for reasoning that can be attached to Mr. Justice Black's statement.
Justice Felix Frankfurter: We must (Inaudible)
Chief Justice Earl Warren: Where are you reading from?
Mr. Benjamin Lipsitz: I'm reading from page 17 of my brief Your Honor, in which I stated in my argument in this sentence.
This Court clearly and succinctly expressed that sentiment, namely that the ordinance was bad, or the statute in the district was bad and its statement of the reason for the ruling which it made on the interpretative question in the Little case and then the quotation is from Mr. Justice Black's opinion.
The right to privacy in the home holds too high a place in our system of laws to justify a statutory interpretation that would impose a criminal punishment on one who does nothing more than respondent did here.
Justice Hugo L. Black: That followed did it not, a statement that what she has done there was to claim under the Constitution.
Mr. Benjamin Lipsitz: Yes Your Honor.
Justice Hugo L. Black: That they should never, and that was all she did.
Mr. Benjamin Lipsitz: If I may read Your Honor's own language.
Justice Hugo L. Black: I thought that would --
Mr. Benjamin Lipsitz: Yeah, what respondent did here was, and I quote your language, was to tell, and then I quote your language, “The health officer who had no search warrant, knocked to enter her home to inspect the sanitary condition.
She had also refused to unlock her door” and then in an another place you say, “A mere refusal to unlock the door accompanied by remonstrances or on substantial Constitutional grounds.
Now I submit to Your Honors that what appellant did in this case was certainly no less or no more than what Mrs. Little did in that case.
In fact Your Honors under Baltimore City ordinance it's possible for one to merit criminal punishment by doing even less than what respondent did in the Little case, because the ordinance in Baltimore City not only says if you refuse but if you delay to open the door and admit a free examination, you maybe punished.
Now further on in the ordinance it says such refusal shall be punished by the forfeit of the $20.
But who is to determine when the delay becomes the refusal, and is the mere statement to the officer, first let me see your search warrant, a delay or a refusal sufficient to merit a criminal sanction.
Justice Felix Frankfurter: We can all read what this Court has written, but we ought not to proceed on a false assumption.
If the perfectly settled doctrine in this Court, that if a Constitutional question is on the horizon, which maybe avoided by a construction which would avoid it, we don't reach the Constitutional question and that's all that Little is and the further fact is that the Little case had to be decided, arose under the Fourth Amendment, and your case does not arise under the Fourth Amendment.
Mr. Benjamin Lipsitz: Well if Your Honor pleases, I don't quarrel with the first part of Your Honor's statement.
Of course, as to the second part of the statement, it's true that my case does not under the decisions of this Court arise under the Fourth Amendment, but Your Honor's own decision in Wolf against Colorado I think solves that problem.
In that case, this Court through Your Honor stated that the protection which is at the core of the Fourth Amendment, that is the right to be secure in the home, in the privacy of the home from unwarranted and arbitrary intrusion by police officers is enforceable against the states through the Fourteenth Amendment, because it is part of that concept of ordered liberty, which was referred to in the Palko case and which was reiterated in Your Honor's decision in the Wolf case.
Justice Felix Frankfurter: Now we have to decide what police intrusion means?
Mr. Benjamin Lipsitz: In one sense you do Your Honor.
I'll submit to Your Honor that whether that policemen wears a blue uniform with a badge on his chest or whether he comes in mufti with a health inspector's badge in this pocket, is not the crucial issue and this --
Justice Felix Frankfurter: But it maybe, it maybe the purpose for which he comes and the interest that he subserves.
Mr. Benjamin Lipsitz: Insofar --
Justice Felix Frankfurter: That's why I suggested that you look at some of the earlier laws of your state you would find a great distinction taken in regard to such matters.
Mr. Benjamin Lipsitz: Well I submit to Your Honor that an invasion by an officer be he in uniform or not be he a policemen or a health inspector or a building inspector is an intrusion upon a man's privacy and is just as harmful an intrusion, whatever the nature of the man's mission is.
Justice Felix Frankfurter: I understand that, and that the argument you have every right to make, I don't mean legal right --
Mr. Benjamin Lipsitz: Not at all Your Honor, I --
Justice Felix Frankfurter: Intellectual right, but I'm suggesting that police intrusion in the context of that term and the history of search and seizure is a very different thing.
Mr. Benjamin Lipsitz: If Your Honor pleases, I'd like to go a step further on that point.
I think that -- I cover in my brief and I -- the argument as to whether this is a criminal or a non-criminal search.
Now I submit that it's a criminal search and I submit that for a number of reasons.
First of all, if you look at the section that was dealing alone, Section 120, clearly it's a criminal prosecution.
If you refuse to let the inspector in you get hailed into a criminal court and fined $20.
Now if you look at the general provisions of the Baltimore City Health Code about nuisances, the provisions which require that a health inspector go in, make an examination and if he finds anything wrong send a notice to the occupant who then is given a chance to rectify the condition and a second inspection is made, if the condition isn't rectified he is then hailed into court.
Well part of the evidence that's necessary to establish a prima facie case for the state, if they make the reinspection and drag the defendant into criminal court, is proof of the facts of what was found on the first inspection.
You have to prove the inspector has to come and testify that he entered and he found certain allegedly defective conditions.
Otherwise they can't even make a prima facie case.
Now to that extent certainly this search is as much a police search, a search connected with a criminal prosecution as any search for a -- by a uniform policemen for evidence of murder or rape or anything else, and is it anymore important Your Honors to enforce the health laws than it is to enforce the criminal laws?
An officer who was patently after evidence of a crime in the recognized sense of one of the felonies or common law crimes or misdemeanors, would not be heard or come before any court and say I have the right for my suspicion to come into this house.
And the fact that his mission is for a purpose which is somewhat perhaps more salutary, certainly is no excuse to try to give him such broad powers in a health situation.
I've been taught that cleanliness is next to godliness, but does that make a health inspection holy? Is there anything about a health inspection that should allow the sanitarian to trample on the basic fundamental guarantees that are afforded to us by the Constitution?
You're dealing here with an area of civil liberty that's pretty broad and sensitive and precious, it's a man's home.
It's the right to be let alone in that home as Mr. Justice Brandeis said in his dissent in the Olmstead case.
Justice Potter Stewart: Mr. Lipsitz --
Mr. Benjamin Lipsitz: Yes Your Honor.
Justice Potter Stewart: You wouldn't -- I suppose you wouldn't quarrel at all with the idea that a fireman could enter a house, could break into a house if he felt that the house was on fire.
Mr. Benjamin Lipsitz: When there was a fire not at all Your Honor, that would be an emergency.
Justice Potter Stewart: And you differentiate that from this case on the basis of the time out.
Mr. Benjamin Lipsitz: Of emergency, of necessity.
Justice Potter Stewart: You say in this case there was plenty of time because --
Mr. Benjamin Lipsitz: That's right.
Justice Potter Stewart: -- because that's where the rats were, can stay there, but now --
Mr. Benjamin Lipsitz: I hold no brief for rats --
Justice Potter Stewart: How about a fireman who wanted to inspect the house to see if the wiring was so dangerously defective that there was every reason to believe that if it continued that the house would catch on fire and maybe set fire to the neighborhood.
Mr. Benjamin Lipsitz: Well curiously enough Your Honor in the Baltimore City Fire Inspection Code, private dwelling houses are specifically exempted from that type of inspection.
There is a provision in the building code which is general and which says that building inspectors can go in to make inspections to protect public health and safety, but in the fire prevention code, specifically designed for the purpose which Your Honor mentioned, inspections of private dwelling houses are exempted, they can't go into private dwelling house.
There is a definition of a private dwelling house which pretty much narrows what is a private dwelling house under the particular statute, but it includes this type of house that we're dealing with here today, I believe the definition excludes what would now be considered multiple dwelling, but when you're dealing with one man's private home, the fire inspector in my submission Your Honor can't go in.
Justice Felix Frankfurter: That may show partiality for those people who have money?
Mr. Benjamin Lipsitz: It may Your Honor, very well, and I hold no brief for people who have money either Your Honor.
Justice Potter Stewart: But you say, and that's your ordinance, your ordinance does discriminate it in that way, does it?
But assume that it did, assume that Baltimore passed an ordinance allowing a fireman to go in to inspect, which is, as to the safety of the wiring and the fuses and so on in the house, from the point of view of danger of fire, would that in your view and the position you take in the present case violate the Fourteenth Amendment?
Mr. Benjamin Lipsitz: If the authority was cast in the terms of this ordinance that is based on suspicion and without the necessity to go to any intervening magistrate, yes it would.
I don't object to the inspections as such Your Honor.
I object to the means used.
I say let the health inspectors, let the fire inspectors, let any of these government officials have the same right of entry that a policeman would have, that any other law officer would have.
If he has cause let him go to a magistrate with it.
Let's put the protection of a judicial or a neutral mind between a government employee, whether he be petty or great, and the citizen in his home, that's all I'm asking for in this case essentially.
Justice Potter Stewart: Now this particular area I'm suggesting only by my question that if there is going to be any effective regulation at all, and maybe the Fourteenth Amendment make impossible any effective regulation, but if there is going to be any, you have to have inspections and a search really on the basis of not of reasonable cost.
Actually you don't know if the fuses and the wiring dangerous and effected until you get in and look at, isn't that true?
Mr. Benjamin Lipsitz: Well, that maybe true Your Honor, let me answer that --
Justice Potter Stewart: So that could give you any reasonable cause to believe, that the man's fuse was --
Mr. Benjamin Lipsitz: I would argue that before a trial court if this case -- such a case were presented.
Let me answer that in this manner Your Honor, one of the main cries that my brother who supports warrantless searches make is this cry of necessity, of impossibility, we can't do it that way.
I like to point this out, in the first place there isn't a shred of evidence in this record that they can or can't do it, but aside from that this complaint is a mere assumption, there is no real proof here.
There is a shining example of what happens when inspectors are not allowed to go in unless they have warrants and it's right here in the District of Columbia.
In the District of Columbia since 1949, a health inspector for one, I don't know about others, but I assume the others too, because the principle is the same, cannot enter a private home over the objection of the owner or occupant unless he has a search warrant.
That's the effect of Judge Prettyman's decision in the Little case and it seems to me that there has been no epidemics in the District of Columbia of unusual consequence.
The rats are not running rampant down the corridors of this Courthouse or nor anywhere else in the District of Columbia.
The District of Columbia has not dissolved, has been taken over by the germs and the rodents, because of the fact these inspectors are required to get inspections.
Justice Potter Stewart: What does he have to show the magistrate before a search warrant would issue in this case?
Mr. Benjamin Lipsitz: In the District of Columbia he has to meet the requirements of the Fourth Amendment, which means probable cause –-
Justice Potter Stewart: Probable cause –-
Mr. Benjamin Lipsitz: -- yes probable cause and they have functioned that way.
Now my brothers in their brief and especially my brothers for the amici curiae have pointed out another thing that will help to answer Your Honor's question.
Most of the people are going to let the inspectors in anyhow.
Even if Your Honors stand for the unConstitutionality of this ordinance and say the Constitutional guarantees say you can't do it, most of the people they point out and it's probably true are going to let the inspectors in anyhow.
Now I don't think that point is really the answer to the case.
The police used the cry and perhaps still do, we need more power.
We have to have the authority to go into people's house so that we can stop all this crime.
It's horrible, people are getting killed and raped and murder all over the place, but in this country at least there has been a distrust to that sort of thing.
The courts and the people have not thought fit to entrust police officials or government employees of any kind with this type of power.
And I say Your Honors that the health laws are important, but they are no more important than the protection of the people against crime.
And they should be subject to same sort of limitation, and if you want to tamper the limitation a little bit, if you want to let the health inspector get his warrant on some slighter type of cause than is required in the criminal sense of probable cause, I have no real objection as to that, but let's not let him go into that house because he suspects there is a nuisance in there and because he determines himself.
The man whose job it is to get in and find violation and he is probably a zealous public servant and want to do a job well, let's not let him determine when he is going to go in my house or Your Honor's house.
Justice Felix Frankfurter: I'm surprised that you suggest that you wouldn't mind relaxation of the basis of probable cause.
Mr. Benjamin Lipsitz: Well --
Justice Felix Frankfurter: Because if this thing is as important as it is, I don't think it's desirable to allow such tenuousness of proof that you can practically have search warrants in advance, just (Inaudible) take him off and (Inaudible)
Mr. Benjamin Lipsitz: I agree with Your Honor and my willingness to go along was a rhetorical willingness, I'm speaking in the sense of argument.
I stand here four square for probable cause and search warrants, but if you get to the situation of balancing necessity, and if you say that the necessity is so great that that health inspector (Inaudible) and I submit that it is not, there are ways perhaps to work it out, but I stand for probable cause, they didn't get probable cause like any one else.
Justice Felix Frankfurter: I understand that argument, but I don't (Inaudible) with the argument that says you can attenuate it, nor for the argument that most people will obey them -- will do it anyhow because that isn't any good --
Mr. Benjamin Lipsitz: Well that argument –-
Justice Felix Frankfurter: It is what you represent is an important as you – otherwise you say it is then people ought to be discouraged from obey something that's voilative of the Constitution.
Mr. Benjamin Lipsitz: I agree with Your Honor, the argument of – the most people will obey is not originally my argument it belongs to my brother I gave it back it him, but I say Your Honors that this case involves something so fundamental and so basic to the liberty and proper well being of all others that if this ordinance stand on the books and be held constitutional, we have gone a long way down to road to what sometimes turned a police statement.
Justice Felix Frankfurter: But I suggest that the concessions which you made, which you now abandon shed some light on the premise with which you start.
Mr. Benjamin Lipsitz: Well, Your Honor I submit that that's not the case.
I am trying to present sensible arguments which perhaps as many times occurred in legal arguments as Your Honor knows far better than I, at least the one giving a little ground for the sake of argument only.
Under this ordinance Your Honor we no longer have a rule of law, we have rule of men, this policeman, this health inspector is under the law, he is the law with respect to this point, there is nobody to go and say him, there is no one to tell him when – whether he should not go in.
Now another argument --
Justice Felix Frankfurter: The legislature can do something about –
Mr. Benjamin Lipsitz: The legislature, I don't content that the legislature can not make proper, reasonable regulations for the governance of the public health --
Justice Felix Frankfurter: I am suggesting that the legislature can prevent this policeman from having this power.
Well (Voice Overlap)
Mr. Benjamin Lipsitz: Well, I suggest to Your Honor –
Justice Felix Frankfurter: That's why I speak of the free state of Maryland, and I heard a great deal about the free state (Voice Overlap)
Mr. Benjamin Lipsitz: I heard the emphasis on the free state Your Honor and I appreciate it.
I suggest the Your Honor that the best way to see that this doesn't happen is to – for this Court to put of the bar of the Constitution of the United States then you don't have to worry about the legislature of the free state of Maryland or the legislature of any other state.
Justice Felix Frankfurter: We have to make – this Court makes Maryland a free state.
Mr. Benjamin Lipsitz: No sir, you are not – well make Maryland appreciate the Constitution, not make Maryland law.
I am not suggesting that Your Honors make Maryland low, Maryland has a perfect right to make its own health laws but it has no right to broaden this health law to the point where they infringe upon basic guarantees of human liberties, things that are implicit in the concept of ordered liberty.
Justice John M. Harlan: Does Maryland has (Inaudible) requiring every householder to (Inaudible) as it's automatically once a year?
Mr. Benjamin Lipsitz: Your Honor I would say – no.
I would say – I would say that that again that goes so far along the line that it would infringed that Fourteenth Amendment.
That would be better in this situation because then it would be a routine search, a routine inspection –
Justice William O. Douglas: In this case if they have got in – suppose they got a warrant and went in to satisfy your test and then they found rats, would they be guilty of the crime?
Mr. Benjamin Lipsitz: He would be then be required to clean up the rats and if he didn't clean up the rats he would be punished in a criminal court, yes.
Justice Potter Stewart: So he would get a notice, wouldn't he?
Mr. Benjamin Lipsitz: He would get a notice, but when they go to punish him in a criminal court Your Honor one of the things that they would have to prove to make their prima facie case would be the presence of the rats at the time of first search.
Justice Felix Frankfurter: Well they would have to prove that, nothing could be taken from the mere fact that the inspector would force it, would it?
Mr. Benjamin Lipsitz: Well the proof would be the inspector's testimony that --
Justice Felix Frankfurter: I understand that.
That's what I wanted to know, they would have to prove that.
Mr. Benjamin Lipsitz: When -- if a second search was made.
Justice Felix Frankfurter: I mean the prima facie -- there wouldn't be any prima facie conclusion of guilt from the fact that the inspector said that I found rats there.
Mr. Benjamin Lipsitz: No, no, of course not, Your Honor.
Justice Felix Frankfurter: All right.
Mr. Benjamin Lipsitz: They would simply be the normal procedure that –-
Justice William O. Douglas: Evidence, evidence for use in the criminal prosecution.
Mr. Benjamin Lipsitz: Yes the purpose of the first search among other thing is to get evidence to use in the subsequent criminal prosecution.
Justice Felix Frankfurter: Why do you say that?
Mr. Benjamin Lipsitz: Because if the man, if the inspector – it goes in, whether if he goes in with the warrant or without, let's say he observed rat and if he leaves a notice, or sent a notice to get rid of rats in 30 days, then in 30 days he goes back makes a second inspection.
Now the second inspection is clearly in my opinion unconstitutional even if the first one isn't, but you are not doing much, if you just deal with first but assuming that he goes back and finds a rat on the second trip and he – and the man is brought in the criminal court, the first thing they have to prove is that that inspection was made on a given date and that rats were found.
Now that's certainly evidence gained in the first search and used in a criminal prosecution.
This is what judge Holsoff was complaining about in his dissenting opinion in the Little case in the circuit Court of Appeals.
Justice Felix Frankfurter: But that is -- I wouldn't say that you could say he went in there in order to get evidence for criminal prosecution.
Mr. Benjamin Lipsitz: Oh he went in there perhaps for a dozen purposes Your Honor and ---
Justice Felix Frankfurter: He went in there for (Inaudible) to discover health (Inaudible), didn't he?
Mr. Benjamin Lipsitz: Your Honor what his primary purpose was I don't know but assuming that he went in there primarily to stop the health thing and he went in there secondarily to get evidence for the second search, it would still be bad in my submission.
Justice Felix Frankfurter: Well but I am suggesting that he doesn't want that rat to continue there for 30 days, he wants those rats to be exterminated–
Mr. Benjamin Lipsitz: I agree with Your Honor's suggestion.
Justice Potter Stewart: Now isn't it also – well why would it be necessary, essential to the prosecution to show that the rats were there on the first inspection?
Wouldn't it be sufficient or you wouldn't show that this man and had a notice free your house of rats within 30 days and 30 days later if they come in and they found, they find the house infested with rats, isn't that enough to show a violation?
Mr. Benjamin Lipsitz: Well Your Honor in my experience the notices always recite the first inspection and things like that.
I don't think that that would be enough.
There would have to be proved in my opinion of the condition existing the form of basis for the giving them a notice.
There is no requirement in this case to just send the notice to a man that your house is full of rats.
The violation if you look at it from that right is for failing to abate in those based on the first inspection.
Now without the first inspection I don't think he could validly convict the am.
I don't think my brothers will argue with me on that but of course they have their opportunity.
Justice Tom C. Clark: How do you suggest that they could (Inaudible) inspection?
Mr. Benjamin Lipsitz: I suggest that they be limit this to the same requirements, they be allowed the same leeway as other enforcement officers.
Let them go to the houses and if most of the people will let them in on a consensual basis that's fine.
If they come to a situation where they can't get in, let them take their facts that they -- that they now think -- amounts the cause of suspect, let them take their facts which I submit should be made to amount of probable cause to a magistrate.
A magistrate will give him a warrant if he believes that there is a nuisance in the house and then they can go in.
Justice Tom C. Clark: (Inaudible)
Mr. Benjamin Lipsitz: As a practical matter in the instant case they have what would be a bit of evidence.
I have not examined a great many health cases, I have been in a few.
Generally they have sufficient evidence to get a warrant in my opinion.
If I may say so magistrates on the whole don't require any plethora of evidence, if a prima facie basis is offered to them, they generally are willing to issue a warrant.
But if the man can't get the evidence and he can't get the search warrant, I can't really say that that is anything horrendous.
That's the reason I am standing here.
If he can't get the search warrant, he can't meet the requirements of this country's Constitution and he should not be allowed to go in.
Justice John M. Harlan: Are there any figures to show how many of these inspections are (Inaudible) in the City of Baltimore?
Mr. Benjamin Lipsitz: I have quite Your Honor.
The -- my brothers for amici curiae have some cited some figures from other city as to inspections but I submit to Your Honor that the number is not the answer to the case.
Justice John M. Harlan: (Inaudible)
Mr. Benjamin Lipsitz: I imagine this force is a pretty ample in Baltimore City Your Honor to deal with most conditions that arise.
This force has been around for a long time.
If Your Honor pleases the question –-
Justice William O. Douglas: I just noticed (Inaudible) the Little case in the Court of Appeals, I don't consider that's here, you were listing Judge Holtzoff –-
Mr. Benjamin Lipsitz: He was the dissenting, no I'm saying --
Justice William O. Douglas: He was against you.
Mr. Benjamin Lipsitz: Yes I was saying that Judge Holtzoff was complaining that this was not a search for evidence to be used in connection with a criminal prosection.
I wasn't misleading Your Honor.
I was saying that -- I was attempting to show Your Honors that this was a search in connection with evidence to be used in connection with a criminal prosection, because they use this evidence in the prosecution after the second searches and the notices.
I was just saying that my explantation --
Justice William O. Douglas: I misunderstood I thought you should be --
Mr. Benjamin Lipsitz: Yeah no, no, I would not be here as this Judge Holtzoff on this point.
But if the --
Justice Tom C. Clark: You think the question here (Inaudible)
Mr. Benjamin Lipsitz: I think it would Your Honor, I think the proof that he was able to produce here as per the conditions on the outside would get him a warrant.
Justice Tom C. Clark: (Inaudible)
Mr. Benjamin Lipsitz: Well he, he was told by -- he testified that it was rodent feces.
He was asked a number of times to specify what kind of rodents, he wouldn't say.
He charged the man in (Inaudible) which was issued by the magistrate for violating this (Inaudible) section, he charged them with rat infestation.
But all he would say was rodent infestation and he would not go any further.
I think if there was sufficient free period to get a warrant on that.
Justice Felix Frankfurter: Mr. Lipsitz my guess is I should expect you, I expect you if you were sustaining your claim here and hereafter your official to get evidence by looking in, peeping through windows I should expect you to be here and say that can't be allowed and I should think it'd be right --
Mr. Benjamin Lipsitz: I should hope, I should hope to have the opportunity Your Honor to come here and say that.
Justice Felix Frankfurter: So when you say that on this record if you get one, I think you can't say that on the basis of your argument.
Mr. Benjamin Lipsitz: Well Your Honor he found here trash, debris and a pile of half of ton as he called of rodent feces.
Justice Felix Frankfurter: But he had to be on the premises and snoop around.
Mr. Benjamin Lipsitz: Well I don't contend and I at one time tried to contend in the Baltimore city housing court that he couldn't even come in the yard, but I don't think that's really tenable.
He can come in the yard I suppose, there is a no way for me to keep him out.
Justice Felix Frankfurter: Why not?
Mr. Benjamin Lipsitz: Well unless I get a -- unless I get a rip from some court or a shot gun I don't see how I am going to avoid his walking into the yard.
Justice Felix Frankfurter: I said in all seriousness that this Court would say, hold, that this is an unconstitutional, its void under fourteenth amendment I don't think that you can get around by having a lot of –
Mr. Benjamin Lipsitz: Well –
Justice Felix Frankfurter: -- enforcement officers snooping my house in my backyard.
Mr. Benjamin Lipsitz: Well suppose he stood on the side walk and observed these –
Justice Felix Frankfurter: What's the other side?
Mr. Benjamin Lipsitz: Yes well this house is –
Justice Felix Frankfurter: Well then that must be pretty bad indeed.
Mr. Benjamin Lipsitz: Your Honors have the pictures.
I don't content that the condition of this particular premises was good.
I contend that the principle involved overwrite the condition of this particular premises.
Justice Felix Frankfurter: I am agreeing -- I am saying but if your contention is correct then you can cut corners.
Mr. Benjamin Lipsitz: I say that this Court should in this case stop these health officers, these government people from cutting corners, when it comes to –
Justice Felix Frankfurter: But you suggest that he can cut corners by moving around by getting a telescope and looking in.
I must insure that (Inaudible) its illegal to do otherwise.
Mr. Benjamin Lipsitz: Your Honor, I am – I am – (Inaudible) for me to stay at here and make suggestions that it might benefit the law officers that want to make inspections, that's beyond my province.
But suggest perhaps from a basis of my own experience that magistrates will be satisfied with proof of this nature and will give them a warrant.
I don't intend to suggest anything more than that.
Justice Felix Frankfurter: And I am suggesting that – what you contend for is unconstitutional then getting the evidence that way would –
Mr. Benjamin Lipsitz: I would agree with you Your Honor.
The danger here is that allowing this inspector to himself make the determination.
In this particular case for instance when he was asked on his cross examination couldn't you as well had barged in judge an hour later, or a two hours later, his answer was no, I was busy.
I have two student inspectors that I have to release at 3 o'clock.
I have to be in my office at 3:30 everyday to write out my reports and then when – and this is a basis on which a home sort to be open to intrusion by officers wherein (Inaudible) what when if what was the emergency he said everybody is in emergency.
I submit to Your Honors that something more than that should be necessary before privacy of homes is violated by a government employee.
Justice John M. Harlan: But you think that a tax assessor who wants to come in to appraise your house, you personal property should have a search warrant to do that?
Mr. Benjamin Lipsitz: Sure, the question of furnaces by Mr. Chief Justice Warren have asked, I would have to contend that in application of this case Your Honor.
Justice Felix Frankfurter: What about the fellow who comes and reads my water meter once a month?
Mr. Benjamin Lipsitz: That's by consent I submit Your Honor.
Justice Felix Frankfurter: What do you mean by that?
Mr. Benjamin Lipsitz: By – by –
Justice Felix Frankfurter: But want to know, I want your legal advice whether –
Mr. Benjamin Lipsitz: Well, my legal advice –
Justice Felix Frankfurter: (Voice Overlap) nothing doing –
Mr. Benjamin Lipsitz: My legal advice is this Your Honor, if you would have got the water from the water company, you enviably at least agree that their man can come in there and read your meter.
Justice John M. Harlan: Or they cut off the water (Inaudible)
Mr. Benjamin Lipsitz: Or they cut off the water, you don't have to buy the water from them, if you don't want to let their inspector in you can dig your own well -- (Voice Overlap)
Justice John M. Harlan: -- wonderful choice, your answer is very helpful --
Chief Justice Earl Warren: On the question of searching for – searching to see what types of properties you have and most of the statutes simultaneously say that if you refuse to permit him to enter they put an arbitrary assessment?
Mr. Benjamin Lipsitz: Right, right.
Chief Justice Earl Warren: But they don't --
Mr. Benjamin Lipsitz: They don't attempt to force their way in.
Chief Justice Earl Warren: But they don't permit to force their way in.
Mr. Benjamin Lipsitz: That's right.
Chief Justice Earl Warren: Mr. Norris.
Argument of James H. Norris, Jr.
Mr. James H. Norris, Jr.: Mr. Chief Justice may it please the Court.
We believe in the light of the Wolf case that the main question in this case is whether the search or not to search, that the intended inspection was unlawful.
Now we will have to of course take into consideration the Fourth Amendment of the Constitution also in discussing what maybe unlawful search and what may not be an unlawful search.
And as was said in the United States versus Rabinowitz there were and is -- there is again – there is against the unreasonable searches but there is not against reasonable searches.
In other words reasonable searches can be allowed.
Now, the question of what is a reasonable search cannot be answered in any definite definition because the Constitution has not stated what is an unreasonable search, therefore, each case must be decided on its own facts and circumstances.
Now historically the abuses which gave rise to the Constitutional provisions against unreasonable searches and seizures grew out of searches or evidence to be used in criminal prosecutions and dates way back to these writ of assistance in England and in Maryland we also have a Article 26 which is the similar to the Fourth Amendment which is in the United States Constitution.
Justice Felix Frankfurter: That got into your Constitution 76, isn't it?
Mr. James H. Norris, Jr.: 76 I think it antedates the Fourth Amendment and it's now Article 26, it was Article 23 at that time I believe Your Honor.
Now in the Boyd versus United States this case, this Court -- involving the Fourth Amendment to the Constitution involved certain custom laws and this Court made the observation then that in search for penalties or forfeitures which were incurred by commission of offenses against the law that this was a quasi criminal nature, the forfeitures and penalties, and therefore the Court said we think that they are within the reason of criminal proceedings for all the purposes of the Fourth Amendment.
It seems that this Court said that Fourth Amendment applies to criminal prosecution.
(Inaudible) on searches and seizures states that the Fourth Amendment is primarily designed to protect the individual in the sanctity of his home and the privacy of his books and papers and properties, but then (Inaudible) goes on to say that it does apply to reasonable rules and regulations adopted in the exercise of the police power for the protection of the public health and that's exactly what we have in this case.
Now the Little case which seems to be the only case which has dropped its particular points to this Court, there was a dissenting opinion by Mr. Justice Burton which was agreed to by Mr. Justice Reed, and I like to -- it's a small dissent and in that case they dissented on the factual facts and that we are agreed to in the majority case and also dissented on the constitutional point which was decided by the Court of Appeals in district of Columbia.
Mr. Justice Burton said, in my opinion the duties which the inspector was seeking to perform under the authority of the district were of such a reasonable, general routine, accepted and important character in the protection of the public health and safety that they were being before and lawfully without a search warrant and as this required by the Fourth Amendment to protect the right of the people to be secure in their person, house, papers and effects, and I also would like to point out that the minority opinion in the Court of Appeals written by judge Holsoff also found that it was not unconstitutional and his reason was that the requirements for a search warrant apply only in criminal cases.
Now that is our point in this case that this is not a criminal case.
The evidence, if there was any evidence the use was not – was not to be used in any criminal case against him.
Justice Hugo L. Black: Do you think that your case depends of findings of the Fourth Amendment, protection of no unreasonable search or seizure except one that you argue that you have a criminal prosecution.
Mr. James H. Norris, Jr.: No sir, I don't believe that, that is not really point, our point is that this is within the police power, and therefore, if there is a conflict between the Fourteenth or Fourth Amendment and now our police power and but it is reasonable and therefore essential that it be used in the different states as the inspection is reasonable.
Justice Hugo L. Black: Well you wouldn't claim of course if he went in there as health officer and found something he thought was unhealthy and he just grabbed it all and took it out, that that would be reasonable seizure, just simply because it was not a criminal reference?
Mr. James H. Norris, Jr.: No sir, it wasn't – I wouldn't say that.
Justice Hugo L. Black: But I think you are going to –
Mr. James H. Norris, Jr.: If the –
Chief Justice Earl Warren: Mr. Norris suppose in this particular search he found evidence of the violation of one of the sections of the code, could you use it to –
Mr. James H. Norris, Jr.: A criminal section or health?
Chief Justice Earl Warren: Criminal section.
Mr. James H. Norris, Jr.: Criminal section – I do not believe he would be able to use it then.
Chief Justice Earl Warren: He would not be able to use it.
Well could he support a criminal prosecution later on the basis of what he found there?
Such as Mr. Lipson as said, if he goes in there and he finds conditions such that as to constitute a (Inaudible) as I understand it under your ordinance he must give him a notice, give the honorary notice and in 30 days if he doesn't clean that up then he is guilty of an offence.
Now if the owner doesn't clean it up after the notice, and he is prosecuted, can the inspector use the evidence that he found on his first investigation to support the notice and therefore the delinquency and therefore the – therefore the prosecution?
Mr. James H. Norris, Jr.: Well my answer to that Your Honor is that he could use it insofar as the need for the notice was necessary but the second inspection is that one which he has being convicted off -- it's the fact that there is still this nuisance there and that will be the conviction --
Chief Justice Earl Warren: But if it wasn't for the first one and if it wasn't for the notice that is based upon this dereliction he couldn't, he couldn't be prosecuted for the second finding of unsanitary conditions could he.
Mr. James H. Norris, Jr.: No sir, that is correct.
There would have to be the first inspection and the notice.
Chief Justice Earl Warren: Then you do actually support your prosecution and your conviction on the evidence he gets at this first search.
Mr. James H. Norris, Jr.: I think it's supported on the fact that there was a need for a notice to be sent, but whether the evidence itself was necessary to be before the court, I don't know whether the court would go that far beyond the notice to see what the evidence was there.
Chief Justice Earl Warren: But suppose it was proven absolutely that there was, there was no need shown at the time the man first made the, made in the search on which a notice was based, there is no question about that.
Would it support a conviction?
Mr. James H. Norris, Jr.: I do not believe it would support a conviction because you must have notice –-
Chief Justice Earl Warren: Yes –- then you use is –-
Mr. James H. Norris, Jr.: -- that there was a nuisance and therefore you do not, you have to a chance to correct it in 30 days.
Chief Justice Earl Warren: My point is and that that -- the question that I ask you is, isn't he supporting the prosecution and the conviction on the evidence that he acquired through this first search?
Mr. James H. Norris, Jr.: He would be supporting insofar as I say I think it's not the direct support for the conviction, however, it is one of those elements that are necessary to prove before he could be convicted.
Chief Justice Earl Warren: Well that's --
Justice Tom C. Clark: Gave notice to that any evidence (Inaudible)
Mr. James H. Norris, Jr.: I believe the notice.
Justice Tom C. Clark: (Inaudible)
Mr. James H. Norris, Jr.: The notice --
Justice Tom C. Clark: (Inaudible)
Mr. James H. Norris, Jr.: Gave him a notice to correct it and if it were there --
Chief Justice Earl Warren: Could he it without -- without --
Mr. James H. Norris, Jr.: I believe he --
Chief Justice Earl Warren: -- investigating the house at all?
Mr. James H. Norris, Jr.: I believe he could do it without investigating the house, if he believed there was a nuisance there.
Chief Justice Earl Warren: Why did they -- did they insist on searching the house in these circumstances?
Mr. James H. Norris, Jr.: Well In this case, all they had was cause to suspect that a nuisance was in the house.
Chief Justice Earl Warren: Well I know, but in answer to Justice Clark's question you said that was enough to support the notice upon which you could base a conviction.
Mr. James H. Norris, Jr.: Your Honor I think in that case is where there is a menace really, that you can really see the nuisance without -- I mean there you really have probable cause maybe to believe that a nuisance existed.
Now here we just have cause to suspect a nuisance existed --
Chief Justice Earl Warren: Yes, well then your answer wouldn't be no to his question, would it not, that it is not sufficient --
Mr. James H. Norris, Jr.: I believe there must be a -- they must see the nuisance in order to send the notice to have it abated.
Chief Justice Earl Warren: Yes --
Justice Felix Frankfurter: He must see it.
Mr. James H. Norris, Jr.: He must see it or smell it or --
Justice Felix Frankfurter: Suppose I go to the health department (Inaudible).
I have very good grounds to believe that my neighbor's house is rate infested, couldn't they send a pact on that?
Mr. James H. Norris, Jr.: Send a notice out, now they go out and inspect the house first to make sure I believe.
Justice Felix Frankfurter: But couldn't they?
Mr. James H. Norris, Jr.: That's what happened in this case.
Justice Felix Frankfurter: Yes I know what happened, but couldn't they?
Mr. James H. Norris, Jr.: They could --
Justice Felix Frankfurter: A word from your neighbor that he has got a lot of rats and we give you notice, if you come around in 30 days and there are still rats there, you could take appropriate measures.
Mr. James H. Norris, Jr.: I believe they could send the notice out and therefore the rats -- they would have to get rid of the rats and if they were there in 30 days then he could be convicted on that.
Chief Justice Earl Warren: Well then they could do that with any householder whether he has got rats or not, all they have to do is say we order you to clear your premise with rats in 30 days and if you don't do it, we will arrest you.
Mr. James H. Norris, Jr.: They could but I don't believe that as a policy of the health department.
They of course only send notices to people who really do have nuisances –
Justice Felix Frankfurter: And as a matter of fact that time there are general pronouncements made by health department say that in a number of instances we come across these things we now serve notice on everybody (Inaudible) fellows or what not within 30 days we are going to come around to see what's your condition is.
They do that frequently don't they?
Mr. James H. Norris, Jr.: Within a block urban renewal especially where the house this is (Inaudible) a notice is wrapped around quite a bit and therefore they will send notices that they know that there are rats there –
Justice Felix Frankfurter: At large –
Mr. James H. Norris, Jr.: At large so all the houses in the block to clean up those rats and –
Chief Justice Earl Warren: Then arrest him without knowing whether there are in your house or not?
Mr. James H. Norris, Jr.: Well they couldn't arrest you without knowing they are in your house.
They could only arrest you when they came in and found that.
Chief Justice Earl Warren: Well then they would have to make a search, wouldn't they?
Mr. James H. Norris, Jr.: They would have to make an inspection in some time now whether –
Chief Justice Earl Warren: Now it is the same problem we had here.
Mr. James H. Norris, Jr.: Same problem again.
Justice John M. Harlan: Does your (Inaudible) just give health officer right to enter premises if there is a refusal?
Mr. James H. Norris, Jr.: You mean against –
Justice John M. Harlan: As this man refused and if you refused this then have your officers got a right to go in and check the premises?
Mr. James H. Norris, Jr.: No sir, they have no right to go in and check the premises, and under the ordinance.
Justice John M. Harlan: That's what I understood.
Mr. James H. Norris, Jr.: You get this correct.
Justice Tom C. Clark: (Inaudible) was not search of the premises?
Mr. James H. Norris, Jr.: No search of the premises, but as you can see they did have cause to suspect.
The pictures and the record will show you the condition of the house and the piles of (Inaudible) infestation as the inspector testified.
Justice Potter Stewart: Mr. Norris, I suppose in addition to health code, the city of Baltimore has a housing code, does it not?
Mr. James H. Norris, Jr.: Housing code but this is part of the housing bureau I believe –
Justice Potter Stewart: Yes.
Mr. James H. Norris, Jr.: It takes in part of the health –
Justice Potter Stewart: Well a housing code of the kind I have in mind is one that requires the doors be in certain places and so on that wiring being of certain kind and falling be of the certain kind and so forth.
Do you happen to know if the failure to comply with that code its of itself a violation of the code.
Mr. James H. Norris, Jr.: But there you too comply would be a violation of the code and also – yeah I believe that code provides for inspection as in the health case –
Justice Potter Stewart: It that way it would be true –
Mr. James H. Norris, Jr.: -- and building and that was in Givner case, Givner versus State, there are 3 inspections in that –
Justice Potter Stewart: Simple failure to abide our code would be a violation of that code, wouldn't that?
Mr. James H. Norris, Jr.: Be a violation of the code.
Justice Potter Stewart: But in practice in order to give the occupant a fair opportunity and what happens is that an inspection is made and the inspector points out specific violations and the occupier or owner, in this case usually the owner, gets notice of the violation and an opportunity to correct the situation and only then is there a prosecution upon his failure to correct, isn't it?
Mr. James H. Norris, Jr.: That not the policy but that is law that the ordinance, under the ordinance notice must sent before any prosecution can be --
Justice Potter Stewart: I see.
Mr. James H. Norris, Jr.: I mean there must be that notice set forth in the ordinance itself, but a notice must be sent.
Justice Felix Frankfurter: If you don't mind telling me this about Baltimore, I don't anything about Baltimore, but I did have some knowledge about New York.
And In 1901, there was passed what was known as the Tenement House Act, laying down certain minimum standards in houses, a tenement was defined as a house having three or more families, sanitary and hygienic condition.
I think it is a fact that under that law inspectors go out, at least when I knew about it, would go out to residences to inspect, merely to inspect and report back with no authority to do anything except to inspect and report back, and when those reports came in, notices were then sent out asking for their correction within appropriate time, depending on what the condition is that needed correction.
And if within the time there was no compliance, there was then a thing called a compliance division of the Tenement House Department which sent non-compliance up to the corporation counsel, for the cooperation counsel to take appropriate proceeding.
Now roughly I think that was with substantial accuracy that was the law when I know about it.
Is there a comparable law in Baltimore?
Mr. James H. Norris, Jr.: Yes sir there is a comparable law, a Multiple Dwelling law, but the difference there is that this is a private residence while there at the multiple dwelling there were more than one-family residences, and might be a little different as to whether that is a -- whether it's private home or not, that there might be a difference there in the multiple dwelling houses.
Justice Potter Stewart: To the special housing court in Baltimore.
Mr. James H. Norris, Jr.: Yeah the special housing magistrate court.
Justice Potter Stewart: Right.
Mr. James H. Norris, Jr.: Yes.
So that is the position of the State of Maryland that the inspection complained of here is in the police power and that the exercise of that police power was reasonable and necessary to protect the public health, welfare and safety of the people.
No one doubts the validity of protecting the right of privacy and is not to be denied that the fundamental purpose of the Fourth Amendment or the Fourteenth was to secure privacy in the home.
It is not a right that however which is invalid or absolute, especially in modern living.
Individual freedom must yield in some cases to the enforcement of reasonable regulations for public welfare.
The right of privacy should not give a right to refuse entry to a health inspector anymore than the right to free speech, gives the right to falsely shout fire in a theatre, which was decided by this Court and also the right of freedom of religion.
It would give the right to offer a human sacrifice.
Where public health is at stake, this Court has sanctioned as against Constitutional objection based on individual right, the power of the government to summarily feed and enter and destroy decayed food, and that was in the North American Cold Storage and Chicago case 311 US or the power to provide for compulsory vaccination is, that was in Jacobson versus Massachusetts.
Indeed in affirming the power of a municipality to regulate refuse removal, this Court in California Reduction Company versus Sanitary Reduction Works stated that a householder may be compelled to even submit to an inspection of his own premises, that's on his own expense.
There it was just stated in opinion.
It was not holding of the case, but it was just in the opinion itself.
Justice Hugo L. Black: What was the North American case --
Mr. James H. Norris, Jr.: The North American case, that was the case where the –-
Justice Hugo L. Black: I don't see it in the briefs, cited in your brief?
Mr. James H. Norris, Jr.: North American Cold Storage and – versus Chicago, 211 US, that may be in the amici curiae case, they are not going to argue so therefore, it might be in that case.
Justice William O. Douglas: What is the practice in England, do you know – (Inaudible)
Mr. James H. Norris, Jr.: For health inspections, I really don't know Your Honor.
To say that we will accept certain invasions of privacy that can bar the entry of inspectors who enter for the purpose of protecting the public health is failing to have balanced the conflicting rights in accordance with their relative weight.
The entrance of a health inspector in the case at bar was for the protection of the home owner as well as the community.
Therefore, the choice we have in this case is between the interest of privacy and the interest of preserving the lives and the health of the citizens of Baltimore or any other city.
What are the interests of the individual --
Justice Potter Stewart: Mr. Norris have you made any investigation of how long there have been the states have had ordinances or regulations such as this – this particular ordinance dated to 1879 –
Mr. James H. Norris, Jr.: We think its 1879 or 1873 –
Justice Potter Stewart: And then –
Mr. James H. Norris, Jr.: And most of the cities have same type of ordinances, the larger cities and have joined us as amicus curios.
Justice Potter Stewart: How long – how long – regulation?
Mr. James H. Norris, Jr.: I am not sure how long they have had the regulation, but ours was in 1875.
Justice Potter Stewart: Was there anything similar to it prior to that time?
Mr. James H. Norris, Jr.: Not that I know of – I mean I did not check back any further either your honor but 1879 –
Justice Felix Frankfurter: Somewhere you could not do anything because the end of (Inaudible)
Mr. James H. Norris, Jr.: That is true Your Honor but 1879 it would be the earliest that I know of –
Justice Potter Stewart: In your state and you don't know about the other states.
Mr. James H. Norris, Jr.: Yeah I don't know about the other states and this is the only the second case that's really come up in the State of Maryland concerning at this point.
The other was Givener versus State, which did not come to this Court after the Court of Appeals in Maryland.
Justice Felix Frankfurter: Can you indicate the approximately how many willing subjects to this kind of potential investigation in Baltimore?
Mr. James H. Norris, Jr.: I can't –
Justice Felix Frankfurter: What is it, 5000 or --
Mr. James H. Norris, Jr.: Oh it would be more than 5000.
Justice Felix Frankfurter: 50,000?
Mr. James H. Norris, Jr.: It will more than 15, there is a million people just about in Baltimore and --
Justice Felix Frankfurter: Yes but a lot of them are --
Mr. James H. Norris, Jr.: A lot of them (Inaudible)
Justice Felix Frankfurter: No, no but a lot of the dwellers in Baltimore are not subject to this law because they either are one family or two family houses?
Mr. James H. Norris, Jr.: Well then they would be subject to the multiple dwelling law --
Justice Felix Frankfurter: The two family houses?
Mr. James H. Norris, Jr.: -- the two family or 3000 --
Justice Felix Frankfurter: Subject to the same sanitary --
Mr. James H. Norris, Jr.: Same sanitary things exist but this would apply to public residents, this particular ordinance.
Justice Hugo L. Black: There's no question of search and seizure, it was a search, an unreasonable search under the Fourth Amendment anything else in the North American case, are there?
Mr. James H. Norris, Jr.: Yes sir, that was the Fourteenth Amendment.
Justice Hugo L. Black: Well was there any question raised there about the search without a warrant?
Mr. James H. Norris, Jr.: No that was -- no that was a seizure of -- no that was taking property under the Fourteenth Amendment.
Justice Hugo L. Black: Took the property and held --
Mr. James H. Norris, Jr.: Took property and --
Justice Hugo L. Black: (Inaudible) but they could sue for it (Inaudible) they have been wrong?
Mr. James H. Norris, Jr.: It could be destroyed even or they could --
Justice Hugo L. Black: Be destroyed and suit -- but suit could be brought?
Mr. James H. Norris, Jr.: That's right yes Your Honor, nothing on the Fourth Amendment.
But in answer to your question Mr. Justice Frankfurter, I really I can't even estimate how many single family houses we have involved but there is a great many of them like --
Justice Felix Frankfurter: Would you say 50 houses are subject to this, the ordinance that's under --
Mr. James H. Norris, Jr.: 50,000.
Justice Felix Frankfurter: 50, 000.
Mr. James H. Norris, Jr.: 15?
Justice Felix Frankfurter: 50.
Mr. James H. Norris, Jr.: 50, yeah at least.
Justice Felix Frankfurter: At least and this has been on the statute of 1879?
Mr. James H. Norris, Jr.: Of 1879.
Justice Felix Frankfurter: And can you tell us what the history of enforcement under that statute -- under that ordinance has been.
Mr. James H. Norris, Jr.: Well, the history --
Justice Felix Frankfurter: Only insofar as whatever the word is, acquiesce comes to my mind.
Mr. James H. Norris, Jr.: Well, that was I just getting to Your Honor that it should be noted that most householders feel their interest lie in permitting such inspections because they wish to find out exactly what is wrong with their house so they can correct it instead of having it burned down or having right to take over or all kind of animals and things like that they welcome the inspector in most cases.
And it also might be pointed out that in one inspection that they had in Baltimore in an urban renewal area, had 564 inspections, 560 houses had violations, health violations that that would indicate just a small area of health violation.
Most of the people will allow the health inspector in, yet one of the ones like the appellant who feels differently what are the dangers as to him?
Now unlike the householders in all of the cases in this Court were search had been declared unconstitutional, this householder is subject to no criminal prosecution as such.
Under the Baltimore City Code, as in all or most inspection ordinances if a health or safety hazard is found, the householder is merely notified to correct it and a penalty attaches only if he fails to comply.
There is no contention in the instant case that the householder was harassed by repeated inspection nor was the inspection made at an inconvenient time.
The ordinance says that it must be made during the day and there is no contention that the inspector had any other motive than to find a health hazard.
He was inspecting in order to find where the rats were that were in the block and might go into other houses within the block.
This is not a case of a knock on the door in the middle of the night or even of interference with a family dinner hour.
I am sure it's been the practice in Baltimore that if health inspector comes to your house and you don't wish to let him be him in at that time, for some reason, they will then come back another day.
I mean it isn't one of those things that they won't come back tomorrow, that the wife is busy, doing something else.
Justice Hugo L. Black: They have the right to disallow him?
Mr. James H. Norris, Jr.: They have the right to but I will say it's been the policy of the city of Baltimore.
Now the (Inaudible) inspection of the appellants property within refines to a complaint as to a neighbors out.
Now I would like to emphasis that this was not a complaint from a neighbor about this house.
It was a complaint as to a neighbors house.
She said she had rats in her house and she want to know where they are coming from.
She just trying to rat proof it and got one of the rats in after its rat proofed, so she didn't want anymore of that –
Justice Hugo L. Black: What you say they found a way in Baltimore to eradicate of 100 percent?
Mr. James H. Norris, Jr.: Well I don't know if its 100 percent but she still might have been.
Justice Hugo L. Black: (Inaudible) so I has a little curiosity there --
Mr. James H. Norris, Jr.: (Inaudible)
Justice Felix Frankfurter: (Inaudible) is the answer isn't it?(Inaudible)
Mr. James H. Norris, Jr.: (Inaudible) that's correct, that's the most growing animal, I guess you must have internal vigilance.
And it was suggested that a search warrant to be upended in this case.
Now in Maryland where there is reason to believe that a crime is being committed then you can get a search warrant, but in this particular case where all you have cause to suspect a nuisance and not a crime, it's not crime, just to have a nuisance in effect, the Court of Appeals and I believe also that search warrant would be not be able to be issued under the present laws of the state of Maryland.
Chief Justice Earl Warren: Nuisance is not matter –
Mr. James H. Norris, Jr.: I mean there is some doubt, now there is some doubt.
The Court of Appeals said there would be doubt as to whether a search warrant, would issue in a case such as this.
Justice Potter Stewart: That is on your present statute.
Mr. James H. Norris, Jr.: On your present statute.
Chief Justice Earl Warren: My question is this.
A nuisance is not a crime in Maryland?
Mr. James H. Norris, Jr.: It probably – it would be a crime if you could show probable cause that a person with (Inaudible) a nuisance but here we just have cause to suspect and therefore –
Chief Justice Earl Warren: No.
No, I am not talking about the search, I am not talking about the probable cause or anything else, I want to know the answer to this question, is this a nuisance, the maintenance of a public nuisance a crime in Maryland.
Mr. James H. Norris, Jr.: I would say it would be a crime in Maryland maintenance of a public nuisance.
Justice William O. Douglas: A new common law --
Mr. James H. Norris, Jr.: We have the common – we keep the new common law except where it's been changed statute, so I believe that it would be under the common law I know of no statute.
Justice Hugo L. Black: I wonder if you know approximately how many people have refused in Baltimore to permit the inspection in the last ten years, how big is the count?
Mr. James H. Norris, Jr.: I really don't know how many refused but I can tell you that it hasn't been very many.
Justice Hugo L. Black: I ask you that because may be it has no bearing on the real issue (Inaudible) or may it has, you said that you had to choose the men enforcing you a health code and permitting searches without warrants, has there been any such refusal that indicate to you did require a warrant as in the case of this man and just to be a few, I would have told myself what you said most people would welcome (Inaudible)
Mr. James H. Norris, Jr.: Well, I think that most people would welcome it, but I think if this Court would take the position that it would be unconstitutional for a health inspector to come into your house then a lot of the people may take a different attitude and they require that search warrants be issued in order to protect themselves they might say but --
Justice Hugo L. Black: (Inaudible) statistics if we gather them now would be worthwhile in determining --
Mr. James H. Norris, Jr.: I think the need --
Justice Hugo L. Black: -- how important it would be in the future, if the court should hold that the search warrants were required.
Mr. James H. Norris, Jr.: If search warrants were required I mean if it were required, it would be required more so.
You couldn't go back past history, because if this Court like I said, if this Court took the position that if they were required and I am sure that more people that would allow them in under the present law would then take a different position and ask that we get a search warrant.
So I don't think past history is going to really tell us too much because --
Justice Hugo L. Black: Suppose from your stand point then or from the standpoint of the amicus people who filed here, you are going on the theory that if such warrant should be required it might bring about such a change, that the problem would be almost inside it, is that it?
Mr. James H. Norris, Jr.: Almost, just about it.
It would be for periodic inspections of every house.
I mean where they make inspections of the blocks, different blocks.
I mean not by compliant such as here.
Here it was by compliant and therefore it would be a little different than where they make a periodic inspection of each block and -- in Baltimore I am afraid to say that there hasn't been too much of that periodic inspection because they have had too many complaints.
It takes all the people that are available in the Housing Bureau and in Health Department they take care of the complaints that come in and therefore they are, that's what followed up in the present time.
Justice Felix Frankfurter: Does your brief, just to give (Inaudible) stating the number of complaints per annum, a) the number of complaints of this character that's what I mean and b) the number of inspections that were made, individual inspections, if you are having those figures, would they be got in your –-
Mr. James H. Norris, Jr.: They could, they could be gotten from the Health Department and however I do have or amicus curiae brief does have a figure from New York --
Justice Felix Frankfurter: But I am talking about Maryland.
Mr. James H. Norris, Jr.: Maryland I didn't have them available at the time, but it could be gotten.
Justice Felix Frankfurter: I know something about at least even what 50 years ago, I knew (Inaudible) New York.
Mr. James H. Norris, Jr.: They could be gotten, like I said, I pointed out that in the Givner case they did recite some figures I think it was 564 inspections and they found violations, health violations in 560 houses.
That was in the Givner case, that was --
Justice Felix Frankfurter: 560 out 564?
Mr. James H. Norris, Jr.: 560 out of 564, in fact and there was four houses without a violation.
Chief Justice Earl Warren: And could you, could you let us know also Mr. Norris how many prosecutions have been under the same section of the --
Mr. James H. Norris, Jr.: Yes sir, prosecutions and also how many inspections there have been in the past --
Chief Justice Earl Warren: Yes.
Mr. James H. Norris, Jr.: Year and how many violations came about in that inspection.
Chief Justice Earl Warren: I understand Mr. Norris that $20 was the fine assessed against this petitioner, is that the maximum?
Mr. James H. Norris, Jr.: At the maximum.
Chief Justice Earl Warren: And no imprisonment.
Mr. James H. Norris, Jr.: No imprisonment, just a fine of $20.
The Court of Appeals in the Givner case pointed out that a search warrant, there might be some valid whether search warrant would be available under the present statute.
This of course would not prove that a search warrant is unnecessary, but it does tend to support the rather restricted common law concept of the office of the search warrant and that was probably in the minds of those who at the time of the adoption of the federal constitution what they had in mind was criminal prosecution.
Therefore we believe that as was pointed to judge -- to Mr. Justice Black that even if a search warrant were provided in Maryland statutes and this Court held that it was necessary and in the overwhelming cases it would be impossible for a health inspector to show the probable cause, cause to suspect is the little less than probable cause we believe and even that its kind of hard sometimes to gain and train, but probable cause you would have to have more than cause to suspect than would be kind of far to – for a health inspector to obtain that information before making an entry.
It is not only a question of inconvenience involved in the pre-curium warrant though, the fact is that the public health can not be protected merely by following up the warrantful complaints.
The major public health and safety program in the country is grounded on the concept that it is true prevention of the conditions which result in health and safety hazards and not in the punishment of the violators.
Now that I think is very important because we do not want to punish these violators who will not let us in or who has nuisances.
The idea is that these nuisances be cleaned up and it is necessary that they be done for the community itself and I believe it was stated by Mr. Justice Douglas in Bermon case, Bermon versus Clark, Parker and urban renewal cases that if the it is necessary in for the morale of the people that these urban renewal projects be given the go ahead.
Now a reversal of the decision of this Court, of the Maryland court in this case would destroy that system of preventative inspection now set up throughout the country.
Now this is stated in amici curiae brief is necessary throughout the country in the Los Angeles, New York and most of the bigger cities and smaller cities alike.
It would make the health officer mere process servers for the purpose of abating conditions which already have grown to the stature of a public menace, now that's the one that you would get a warrant for, the ones you can smell, the ones you can hear and see or something like that.
You know, if you see rats at the window, you could get probably cause if you got rats in there, but -- or and it might be dead rats you have to smell them to show probably cause.
So that's what the health officer would turn out -- they would be a mere process server.
Justice Felix Frankfurter: There is also a problem, there would be a problem of the scope of the warrant, the warrant has to be particularized as to subject matter, alien.
Mr. James H. Norris, Jr.: They --
Justice Felix Frankfurter: If they have rats on an unused garage or an unused guest room on the top floor of --
Mr. James H. Norris, Jr.: That's true, that's true.
Justice Felix Frankfurter: (Inaudible)
Mr. James H. Norris, Jr.: That's true and you might think --
Justice Felix Frankfurter: It then raises the question as to the unreasonable scope of a warrant, that the warrant --
Mr. James H. Norris, Jr.: That's true.
Justice Felix Frankfurter: (Inaudible) impediment ground –
Mr. James H. Norris, Jr.: That's true Your Honor you might say that there is probably rats in there and there might be squirrels or some other animal in the house.
But I think as I said it was pointed out in the grand jury surveys that were made in New York city and referred to by the National Institute of Municipal Law officers on page 5 of their brief, that a report showed that an inspection team surveyed 15 square blocks of housing and three representative areas of Brooklyn in which 567 housing division violations had previously been reported on complaints.
Now the inspection survey revealed an actual total of 12,445 violations in the test area.
Many of them classed as hazardous.
Other inspections in the New York area indicated that the ratio was not out of line.
Now only 567 violations on file prior to inspection as against 12,445 violations, can there be any doubt of a need for preventative inspection?
We believe that there is this need for --
Justice Potter Stewart: Mr. Norris doesn't the – doesn't your argument at this point, isn't a directive -- isn't the result of it that your present law is to strict in the requirement, by requiring cause to suspect, because surely not in 12445 cases did they, did they have cause to suspect any violation at all, the very fact that they were really 567 violations known would indicate that.
Mr. James H. Norris, Jr.: I believe that the very good indication there that this law if the Court, I mean it seem what the Court does say about that present law, a cause to suspect it maybe that it might be best in the -- advantageous to say that they can inspect any house.
Justice Potter Stewart: Or if that's matter.
Mr. James H. Norris, Jr.: And that --
Justice Potter Stewart: Assuming --
Mr. James H. Norris, Jr.: Assuming what the court would do here of course unless what they might fit about -- but I think that that is true and I might point out that most of the city allow inspections in any house and not restricted to cause to suspect such as we have here.
Whereas that the older type and the newer type I believe allow inspections in every house, but Harris cause to suspect ordinance.
Justice Felix Frankfurter: I believe in New York that would be --
Mr. James H. Norris, Jr.: Routine inspections probably, I think most of the bigger cities have that and that's just been adopted recently though and ours is more limited of course --
Chief Justice Earl Warren: Mr. Norris, may I ask you this question? This man has been fined $20 for his violation of this particular section of the law.
Now that doesn't enable the city in any way to remedy the condition it suspects in his property.
What avenue is open to city from that point on to remedy this situation, assume they still feel that there are rats in that apartment or home?
How would they proceed then?
Mr. James H. Norris, Jr.: I imagine that they would have to go to court in order to – they couldn't get a search warrant Your Honor therefore they might condemn the house or something like that, but –
Chief Justice Earl Warren: (Inaudible)
Mr. James H. Norris, Jr.: No but I believe that –
Chief Justice Earl Warren: (Voice Overlap)
Mr. James H. Norris, Jr.: I believe that if this Court there upholds the Constitution -- constitutionality of this act, I am sure that you will let the city of Baltimore in and the reason it has – and I am sure is to find out if it is constitutional but if the Court says its constitutional he is going to let them in I am sure.
Chief Justice Earl Warren: But suppose the man went in and then they go through a proceeding of this kind, (Inaudible)
Mr. James H. Norris, Jr.: Well then just go back again the next day and another $20 fine and next day another $20 and $20 per refusal or per day.
Chief Justice Earl Warren: And that's the only –
Mr. James H. Norris, Jr.: That's the only thing that I know of.
Now there maybe another procedure that I really don't know because I am not familiar with all the health procedures but there maybe and now there that they could get in but I would say that they could go back to next day and getting to refuse again.
Chief Justice Earl Warren: (Inaudible)
Mr. James H. Norris, Jr.: Now I believe that as stated in the National Institute of Municipal Law's brief and they put it very well.
They say a man's house may be his castle, but that castle no longer sits on a hill surrounded by a moat.
The modern "castle" is connected to a central water system, a sewage system, a garbage collection system and frequently to the houses on either side and I think that really points out the need for these inspections in modern time that the houses are getting to be so close together, row houses, that your house is really a something that a community should watch out for because if you have rats they can get over to your house, if you are in a row house, its like poring a hole right through the wall.
Justice Hugo L. Black: What were you reading from?
Mr. James H. Norris, Jr.: That was from the brief of the amici curiae and I thought --
Justice Hugo L. Black: Challenging a variation.
Mr. James H. Norris, Jr.: I thought it was very well put --
Justice Hugo L. Black: (Inaudible)
Mr. James H. Norris, Jr.: Although the question presented in this case has not been decided about this Court, similar cases have been before the State Court.
Now in Maryland the Court of Appeals in the Givner case, held that the ordinances of Baltimore City which provided for inspections without search warrants by the health department, building inspector engineer and fire department of buildings for the purpose of performing their prescribed duty was a valid exercise of the police power.
The Court further held that the inspections were not unreasonable and therefore were not unlawful.
They did not then involve any violation of Article 26 of the Maryland Declaration of Right, similar to the Fourth Amendment or to the Fourteenth Amendment.
That was held in Givner case decided in 1956.
In South Carolina this Court in Richards versus City of Columbia upheld the Constitutionality of an ordinance directed at the improvement of housing.
Although the question of entry was not before the Court at that time, they expressed some doubt whether such an entry would come within the constitutional guarantees against unreasonable searches and they then referred to the divided opinion of the Court of Appeals of the United States, the District of Columbia and this Court in the Little case.
In Ohio, which the Supreme Court in State versus Pike and which I believe an appeal to this Court and now is 699 on the docket, held that the inviolability of homeowner's counsel is subordinate to the general health and safety of the community where he lives.
The Court further held that the Dayton ordinance authorizing housing inspectors to enter upon premises and examines the premise of any reasonable power, did not violate the section of the Ohio Constitution prohibiting unreasonable searches.
A recent note in 72 Harvard Law Review, discusses urban renewal and there the article goes into the problem of inspections and suggests that authorization by municipal housing codes of entry upon property for inspection without a warrant maybe open to question under the Fourteenth Amendment, but they state that the Court should uphold the housing code inspections without warrants on the ground that the search is not for the purpose of securing evidence of criminal guilt and further states that a search for inspection purposes should be deemed unreasonable only if conducted in an oppressive way.
And if there are no further questions from the Court --
Justice Potter Stewart: That Ohio case was decided wasn't it on the ground of the state Constitution.
Mr. James H. Norris, Jr.: The state Constitution, they said that the Fourteenth Amendment has ruled out the Fourth Amendment, after they -- and then therefore they were just deciding on the Ohio Constitution.
Justice Potter Stewart: Was that may be --
Chief Justice Earl Warren: In your opinion would an affirmance of this case carry with it the right to search?
Mr. James H. Norris, Jr.: Search?
Chief Justice Earl Warren: Premises of this kind or would it be merely carry with it the right to punish?
Mr. James H. Norris, Jr.: Oh I believe we carry with it the right to punish, I mean the right to search or inspect I should say, where there is call to suspect.
Justice Felix Frankfurter: You mean that the sanitarian or whatever he is called could push the house owner aside and walk in?
Mr. James H. Norris, Jr.: No sir, I wouldn't say that.
What I mean is that it would uphold the right of the state to punish those who refuse to allow --
Chief Justice Earl Warren: Well, that's the distinction I was trying to make, but do you feel that it wouldn't carry with it the authorization to make a search if the -- if the householder said no?
Mr. James H. Norris, Jr.: Oh no it would not carry that but it would carry the fact that it would be lawful for the – for the state to punish anyone who lawfully refused, but it would not allow the person to go right in and bust in.
Justice Felix Frankfurter: $20 is a corrosive instrument to get into consent to let the man in, that's what it amounts to?
Mr. James H. Norris, Jr.: That's what it amounts to and I believe the attorney General Sybert would like to say and summarize the remarks.
Chief Justice Earl Warren: Thank you.
Mr. Attorney General.
Argument of C. Ferdinand Sybert
Mr. C. Ferdinand Sybert: Mr. Chief Justice with the permission the Court, I would like to point out that this Baltimore statute, the health code is actually prevented its preventive law, law we might describe as preventive medicine.
In fact the people of Baltimore even since the passage of Section 120 as the legislative history above it indicates in 1879 have accepted the health code as part of the valid exercise of the police power of the state acting through the municipality.
I have been informed by the assistant Baltimore city solicitor at the trial table that actually over the past 10 years there have been only approximately 5, 10 may be 20 refusals of the right of entry – refusal of entry to the health sanitizers.
Actually the situation has been a part of the ordered liberty mentioned in the Palko case and also mentioned by Mr. Justice Frankfurter in the – in Wolfe versus Colorado.
It has actually in both in Baltimore and in the other cities, 1100 of them represented in the amicus brief here of course there are great many more cities which are not possibly and possibly not in that league of municipalities but each build up community, each city, particularly the large cities have the same problem.
This right of entry in order to inspect for health conditions and health violations, in order to determine such things as should be corrected from a fire standpoint, safety standpoint, have become part of our moorage, part of our way of living, actually we have it.
We have had it, as indicated here in Baltimore since 1879 a few refusals by owners or occupants of property of admission in order to do the salutary thing of determining whether or not any conditions need to be corrected from a health standpoint or from a fire or safety standpoint.
Actually we don't have complete (Inaudible) liberty in this country.
We have modified liberty I should say.
Complete liberty modified by the restrictions that society has found necessary, to impose or possibly I should say to live by such restrictions as have been found to be necessary and/or reasonable.
I don't need to go over the same grounds that have been mentioned here, possibly very briefly allude to some of them.
My grounds for saying that, as to use of property we have a restriction in nature of zoning on our (Inaudible) use of our properties, necessity to acquire, to secure permits for special uses or the limitation that our property maybe taken away from us by condemnation, if it proves to be needed for the public good.
We don't have completely free speech.
My colleague has mentioned some of the limitations, yelling fire in a crowded theatre falsely.
We can't advocate subversion.
We can't slander others and there are of course many other instances in which free speech is subject to limitations.
We don't have completely free practice of religion.
The answer as colleague cited, as this Court held you can't offer a human sacrifice even if you actually honestly believe that, that it is a necessary part of your religion.
Our right to free assembly is limited.
We can't obstruct free passage on the public streets or public places by deciding to have a meeting of some kind, to discuss something perfectly legal.
In public heath the cases have been cited, the North American Cold Storage case against Chicago, 211 United States, that the government may summarily enter premises and destroy putrid food.
It may provide, the government may provide for compulsory vaccination.
Jacobson versus Massachusetts 197 Maryland, quarantines, from one aspect quarantining persons, making them stay in their homes or bedrooms when suffering from a communicable disease and the other side of the coin preventing access of other persons to them, as is certainly a limitation on our freedom of action, but agreed by everyone as being needed, necessary and reasonable in view of our way of living.
Chief Justice Earl Warren: General, would it make any difference in your position if instead of this being as you do with merely a regulation, a health regulation punishable by maximum of $20 fine that the law provided instead for a punishment, misdemeanor punishment of 6 months in jail or $500 or both, would that make any difference in your argument?
Mr. C. Ferdinand Sybert: For the refusal of entry or –
Chief Justice Earl Warren: No just (Inaudible) here, take this very statute and say that instead of maximum of $20 fine to – in order to bring about the orderly administration of your health laws it provided as a punishment 6 months in jail or fine of $500 or both as most misdemeanor statutes do.
Mr. C. Ferdinand Sybert: I understand Your Honor's question to mean, whether it would make for better enforcement?
Chief Justice Earl Warren: No, no no, I mean your legal argument -- would your position -- well we will put it this way, if you had such a statute and this petitioner came here sentenced to 6 months in jail for having failed to do that, would your argument and your position be the same as it is in this case for both the statute and the fine and are limited to $20?
Mr. C. Ferdinand Sybert: I think our position would have to be exactly the same.
The degree of punishment I don't think is affects the issue involved.
Chief Justice Earl Warren: What happens to this man if he doesn't pay that $20?
Mr. C. Ferdinand Sybert: If they doesn't pay the $20 under our law he must serve it out – well I think its $1 per day of the fine in jail.
Justice Tom C. Clark: (Inaudible)
Mr. C. Ferdinand Sybert: Well of course all the punishment usually they are set up in matter of maximum at least, if not maximum and minimum degrees for punishment but all punishments are due – are subject to a constitutional provision or interdiction of cruel and unusual punishment so I think the punishment would have to be evaluated in light of the degree of the crime possibly to determine whether or not any given case it failed in the probation of the constitutional intervention.
Justice Felix Frankfurter: And imprisonment, does Maryland still have imprisonment of civil death –
Mr. C. Ferdinand Sybert: Still –
Justice Felix Frankfurter: Pardon me.
Mr. C. Ferdinand Sybert: Not since the state became a state of United States sir, that may have --
Justice Felix Frankfurter: I mean if man gets a judgment, judgment against a man and he doesn't pass.
Mr. C. Ferdinand Sybert: We have never had imprisonment for a civil debt since 1776, and possibly many years before that.
Justice Felix Frankfurter: Could you under your law bring suit as one could under the United States law in the similar situation, an ordinary action for debt, no criminal process at all to collect the fine of $20, under the federal statute.
Mr. C. Ferdinand Sybert: Well we --
Justice Felix Frankfurter: Under the federal law, penalties like this maybe (Inaudible)
Mr. C. Ferdinand Sybert: Well, this course is a criminal penalty in my view --
Justice Felix Frankfurter: I understand that --
Mr. C. Ferdinand Sybert: -- and we have no method by which you can enforce the payment of criminal penalty by a civil process, as far as I know in State of Maryland.
To summarize very briefly, we feel that the law is not static, it's not in a straightjacket.
I do want to commend to Your Honors the statement written by Mr. Justice Frankfurter in Wolf versus Colorado, to the effect that due process of law thus conveys neither a formal nor fixed, nor narrow requirements.
It is a compendious expression of all those rights which courts must enforce because they are basic to our free society.
But basic rights do not become petrified as of any one time, even though as a matter of human experience some may not too rhetorically be called a (Inaudible).
It is of the very nature of free society to advance in its standards of what is deemed reasonable and right, representing as it does a living principle, due process is not confined with any permanent catalog of what maybe given -- what may at a given time be deemed the limits or the essentials of fundamental right.
Justice William O. Douglas: That sounds familiar, who wrote that?
Mr. C. Ferdinand Sybert: Mr. Justice Frankfurter wrote it as I said quoting from Wolf versus Colorado 338 US.
We feel then sir that this ordinance and the enforcement of it is a proper exercise of the police power.
It is necessary as shown very vividly in the brief of amici.
It is reasonable and therefore even if the Fourth Amendment were applicable, not prohibited by the Fourth Amendment.
It is not prohibited by the Fourteenth Amendment or indeed by Article 26 of the Maryland Declaration of Rights as decided in Givner case.
From a balancing of the rights of parties, it is justified.
It is already a part of our way of life and indeed is so in all the municipalities of the United States, thank you.
Chief Justice Earl Warren: Mr. Lipsitz.
Rebuttal of Benjamin Lipsitz
Mr. Benjamin Lipsitz: May I please Your Honors.
In regard to the question which Mr. Chief Justice Warren asked as to what the Commissioner of Health of Baltimore could to if man did let the inspector in despite the ordinance, he can do several things.
The health code which is part of the record indicates in Section 112 thereof that if he is satisfied that a condition constitutes an actual menace to health he shall proceed forthwith to cause the same to be abated.
In a subsequent Section 114, he is given power if a householder refuses to correct an objectionable condition to do it himself, with his own agents and people and to charge the householder for the work.
Justice Felix Frankfurter: You mean he can move in and just attend to it?
Mr. Benjamin Lipsitz: He can move in and do it Your Honor and in section 116 he can move the householder out.
He can condemn the house in effect and say nobody lives here until the conditions are corrected.
So there is ample ammunition in the hands of the commissioner of health here to rectify any objectionable conditions.
Justice Felix Frankfurter: Well the householder is agree with the facts, but in fact there is such nuisance?
Mr. Benjamin Lipsitz: In this case Your Honor, under this ordinance the householder gets no chance to –
Justice Felix Frankfurter: I don't know in the answer that you gave –
Mr. Benjamin Lipsitz: I am trying to answer that by pointing out that under the whole health ordinance in my submission the householder gets his hearing for the first time in a criminal court when he is accused of violating some section of this ordinance; he has no recourse before that.
Justice Felix Frankfurter: Then what about the case, you have answered the chief justice by saying that if there is real nuisance there the health people can move in and abet it, is that right?
Mr. Benjamin Lipsitz: That's right, Your Honor.
Justice Felix Frankfurter: And what I want to know suppose there is a difference of view – between health people and the owner, who (Inaudible) --
Mr. Benjamin Lipsitz: I think then that the health people have the authority to do it anyhow.
Now if he understand there and physically tries to bar the way, then I think the solution lies in the fact that the Commission of Health calls the police and arrests the householder not for the health ordinance violation, but for disturbing the peace or resisting an officer or whatever they call it.
Justice Felix Frankfurter: In my proposition, the house owner says that health people got a grudge against him, and in fact there is no nuisance, but they have said there is a nuisance and they will win and who settles that conflict of fact?
Mr. Benjamin Lipsitz: That conflict of fact is settled in the present, under our law, in my opinion in the Criminal Court of Baltimore or before a magistrate on the question --
Justice Felix Frankfurter: Then he can't move in and abate it.
Mr. Benjamin Lipsitz: The -- Your Honor I am trying to cite to the Court what the statute provides, what the mechanics of it are.
I don't think I should be held accountable for it, I don't know but it seems to be that if the commissioner of health under this ordinance tries to move in and you get a recall – an householder who gets himself a gun and says I am not going to let you in, he is easily arrested for carrying firearms or whatever the violation is.
The householder's only recourse under this whole code is to stand on its ground and say I won't let you in and I will take my chances on your $20 fine.
Now this $20 fine can be quite a coercive weapon because they don't have to wait for the next day.
They can make the demand to come in every five minutes and the commitment that the magistrate signed in this case and which is used in every case says if you don't pay the fine, you would go to jail as my brothers have informed you and the magistrate in this case in fact its outside of the record but I was present in the magistrate's court told the inspectors go back and if he doesn't let you in (Inaudible) I'll fine them $20 again and this is insurmountable.
Now the householder has no recourse other than his claim of the unconstitutionality of this ordinance and for claming that for having (Inaudible) claim that he has arrested, that is one of my strong objections to this ordinance.
Now, if Your Honors --
Chief Justice Earl Warren: We will recess now Mr. --
Argument of Attorney General
Mr. Attorney General: (Inaudible) the case of North American Cold Storage Company.
I'd like to point out to the Court that in that case, the ordinance involved specifically accepted private dwelling houses from the effect of the provisions of that ordinance pertaining to food, which was in -- an improper condition for human consumption.
There was no effort there to reach the problem that we're dealing with here.
On the issue of the -- the nature of the proceedings as being criminal, vel non, I'd like to make this remark.
As pointed out by Judge Prettyman in the opinion in the middle case in the Circuit Court of Appeals, if this doctrine is the basis of a decision that the Fourth Amendment has no application and therefore, in this case that the Fourteenth has no application, one is faced with the anomalous situation that when government officials attempt to search or inspect the house of someone who is suspected of crime, they need a warrant.
If they are searching for evidence of crime, it is said they must get a warrant.But if they are just searching or searching for something else other than evidence of crime, they need no warrant.
And the -- the inescapable logic seems to be that a man who is suspected of crime therefore, has a greater right than a man who is not suspected of crime.
And this defeats the argument, in my submission.
Now, as to the point of the availability of search warrants for heath purposes in the City of Baltimore, it's pointed out in appellant's brief, and I like to call to the Court's attention here that under Section 208 of the very Baltimore City Health Code which is here, in issue, and it's at page 82 of the pamphlet, which is in the record, portfolio 132.
"A provision is made as follows, whenever the Commissioner of Health may have just caused to suspect, it's a little stronger in the requirement of cause that any baggage, clothing, bedding or goods of any character found in the city are infected with any contagious or infectious diseases which may be dangerous to the public health, he shall proceed to the nearest magistrate and obtain a warrant and have said goods removed to such places as he may deem best."
Here is clear basis.
Here is clear authorization for warrants to be obtained in connection with proceedings under the Baltimore City Health Code.
And I submit to Your Honors that the prevention of contagious diseases which are referred to in this Code, in a prior section, and which includes such onerous things as yellow fever and cholera, and typhoid, and typhus, and diseases of that nature is certainly as important as cleaning up rodents.
And in that situation, the Commissioner of Health must obtain a warrant.
Why should he not here be held to the same requirement?
I submit to Your Honors that it has always been the -- the philosophy, the tradition, the spirit in this country that the State -- that the State exists for the individual, not the individual for the State.
That the right of the individual is the paramount right.
That we live under a rule of law and not under a rule of men.
That houses are today, close together, is all the more reason why the essential right of privacy, the little bit that remains to a man of his privacy should be protected by this Court against any incursion.
And I submit to Your Honors that this Court should not permit a situation to grow up where we are more clean or more healthy at the cause of being less free.