RIOS v. UNITED STATES

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Argument of Harvey M. Grossman

Chief Justice Earl Warren: Number 52, Jose Terrones Rios, Petitioner, versus United States.

Mr. Grossman, you may proceed.

Mr. Harvey M. Grossman: Mr. Chief Justice, Honorable Associate Justices of the Supreme Court.

Petitioner Jose Rios has been convicted of unlawful possession of narcotics and sentenced to 20 years imprisonment solely on the basis of evidence which petitioner asserts was obtained in violation of his constitutional rights.

The evidence was obtained by state officers and previously suppressed in a state prosecution under the exclusionary rule prevailing in California.

This Court has granted certiorari to determine two questions.

First, was the evidence in question in fact obtained in violation of the constitutional rights of the petitioner or defendant?

Secondly, if the evidence was so obtained, was it nevertheless admissible under the so-called silver platter doctrine because obtained by state rather than federal officers?

First, the factual context in which these questions have to be resolved.

On February 18th, 1957, plain clothes officers Beckmann and Grace of the Los Angeles police force observed the defendant enter a taxicab at the vicinity of First and Flower Streets, an intersection near the Los Angeles Pacific Center.

The time was shortly after 10:00 p.m.

At the time, neither Officer Beckmann nor Officer Grace had a warrant for search of the cab or the defendant.

They had no warrant of arrest.

In fact, their own testimony states that they had no idea whatever as to the identity of the defendant, the cab, or the driver nor were they searching for a participant in any known crime.

Nevertheless, they testified that they, and I quote, “stake out on the cab and then proceeded to follow it for some two miles until it arrived at First and State Streets”.

Now, their explanation for what seems to be rather extraordinary conduct is as follows.

First, they state, according to Officer Beckmann's testimony, that before the defendant entered the cab, he looked about up and down the street.

Secondly, Officer Beckmann said that some three months previously, he had arrested another defendant not connected or anyway with defendant Rios in the same locality, and this defendant was also using a taxicab, so this paired to be a somewhat suspicious circumstance as far as Officer Beckmann was concerned.

And finally, after the evidence was suppressed in the state court, Officer Beckmann testified that he recalled that the airy in question was one with a “bad reputation for narcotics”, whatever that may mean.

Now, based upon this rather flimsy fact situation, which the Government itself conceded, do not constitute probable cause, the police proceeded to follow the cab for some two miles in an unmarked police vehicle.

When the cab stopped momentarily for a traffic signal at First and State Streets, the police car pulled up behind it.

Officers Beckmann and Grace alighted and approached the cab on opposite sides and Officer Beckmann identified himself to the defendant.

Now, with respect to Officer Beckmann's intentions in that regard, he testified in the state court that he was investigating narcotics, and later in the federal proceedings, added that it was his intention to see if defendant had any narcotics in his possession.

Justice John M. Harlan: When they went up at the traffic light identified themselves, did they open the door of the cab and make entrance into the cab?

Mr. Harvey M. Grossman: The testimony from this point on, I might say, and I was about to get into that, is a bit obscured, because Officer Beckmann told two stories here.

He told one story in the state court and after the state court suppressed the evidence, suddenly some months later he recalled the sequence of events a little differently, particularly from the standpoint of the timing of the search and seizure.

Originally, Officer Beckmann testified, and I might say incidentally that while there is -- there are differences in the two factual presentations, we don't believe probable cause has established even if we take the best of the many versions which Officer Beckmann testified to.

And I might add that the state court's testimony was received in evidence in the federal prosecution pursuant to stipulation that Officer Beckmann would have testified the same at that time although he did proceed to get a different story.

Now, according to the original report Officer Beckmann filed shortly after the events in question, when he identified himself to the defendant, he saw the defendant extract a white object from his pocket.

At that point, Officer Beckmann said he opened the door of the cab.

He states he didn't saw the defendant drop an object at his feet.

Now, when the officer testified in the federal court after the state court had suppressed the evidence, he testified somewhat differently.

This time, he testified that the defendant dropped the object before the door was opened.

And that now, it was not only Officer Beckmann but the defendant and Officer Beckmann who opened the door, a somewhat different version.

The cab driver who was called as a witness for the Government in the trial court, and I think was the only disinterested observer on the scene and whose testimony therefore would be entitled to some weight here, when called by the Government testified that while defendant was still in the cab, Officer Beckmann opened the door, grabbed defendant by the arm and brandish a revolver at which point the cab driver states he protested that while he was accustomed to routine police stopping at his cab and searches, the presence of a revolver seemed a peculiar circumstance and he felt that the officers' conduct was unjustified and testified he complained to Officer Beckmann.

So the cab driver's testimony corresponds with the original version of Officer Beckmann's testimony, namely, that Officer Beckmann opened the cab door, the cab driver adds he grabbed his arm, and this was prior to the time the object in question apparently had even been dropped.

Now, Officer Beckmann testifies as to two versions of the following events also.

In his original testimony, he states that after the object was removed from the defendant's pocket, at this point, we only know there is a white object, this is all he has noted, defendant dropped the objects on the floor of the cab, there's nothing said of any inspection and tempted to alight.

And at that point, Officer Beckmann grabbed him by the arm, according to his testimony, and said to the defendant, “You're under arrest.”

Beckmann then told his partner Officer Grace, “Pick up the object.”

This was done and Officer Beckmann now observed that it appeared to be a white contra -- a contraceptive containing a white powder.

So that this is the first point, according to the original version of which Officer Beckmann even had occasion to examine the object at all.

In the federal court, he adds an additional fact somewhat contradicting his original story.

Now, he testifies that before the defendant alighted from the cab, Beckmann momentarily flashed his light on the object and observed.

It appeared to be a contraceptive with some sort of light colored object in it, although, here again, he acknowledged that he didn't really recognize the nature of the object as resembling a powder-like narcotic until after it was handed to him by Officer Grace.

At that point, the arrest was not only made in fact but Officer Beckmann had previously told the defendant “You're under arrest,” and grabbed him by the arm.

He then, as I say, examined the object with the view to ascertaining its contents and noted apparently for the first time which he had not truly to do so that it appeared to contain some sort of a white powder which later investigation proved to contain heroin.

Now, Officer Beckmann, and I -- and I bring this up merely, because in light of the contradictory stories the officer told, his attitude toward the defendant may bear some irrelevance here, then proceeded to pursue the defendant into an alley where he was subdued -- where he subdued the defendant by stopping him and according to his testimony shooting him in the back apparently and beating him with what he referred to as a sap or a blackjack.

Now --

Justice Potter Stewart: What he referred to was that?

Mr. Harvey M. Grossman: A sap or blackjack.

Officer Beckmann stated he subdued the defendant after he'd shot him and defendant followed he beat him with a sap which appears to be a -- where he used for his blackjack.

Justice William J. Brennan: What was the circumstance into which he shot him, did you say?

Mr. Harvey M. Grossman: Well, he testified, and I might say, this is rather peculiar for this reason.

Officer Beckmann testified he shot the defendant while they were alone in an alley, but for some reason, was somewhat reluctant to reveal the testimony after this sequence of events even when he was on the stand.

He said that he stopped the defendant.

His testimony, at least at one point, was he stopped the defendant and that is when he shot him while the defendant was faced away from him and therefore, of course, shot him in the back that defendant began --

Justice William J. Brennan: Well, how distant was this on the fact here?

Mr. Harvey M. Grossman: This was after he pursued him into an alley.

I imagine a distance of perhaps half a block to a block --

Justice William J. Brennan: But --

Mr. Harvey M. Grossman: -- from the cab.

Justice William J. Brennan: But did the defendant plead with it?

Mr. Harvey M. Grossman: The defendant apparently -- yes.

After -- after the arrest, he protested his innocence to the officer after the arrest and then attempted to pray for the officer breakaway whereupon the officer pursued him and told him to stop and stopped him, and then after he had stopped, shot and beat him, as I've indicated.

Now --

Justice Potter Stewart: Did the defendant testify as to what went on, Mr. Grossman.

Mr. Harvey M. Grossman: No.

The defendant -- there was no testimony at all by the defendant.

The only evidence here, and this, I say, is surprisingly alleged in the various versions and conflicts here.

These are all stories by the state police.

The only evidence introduced was evidence for the state police and the facts, I have related, are based solely on the testimony of the state police officers and the cab driver called as a witness for the Government.

Now --

Justice Potter Stewart: It was a motion to suppress of course.

Mr. Harvey M. Grossman: Yes.

I was about to mention.

Justice Potter Stewart: Did the defendant testify?

Mr. Harvey M. Grossman: No, he did not testify on the motion --

Justice Potter Stewart: Not at all.

Mr. Harvey M. Grossman: -- to suppress.

Justice Potter Stewart: Either there at the trial.

Mr. Harvey M. Grossman: No.

Justice William J. Brennan: Well -- well, there are two motions, one is state motion to suppress --

Mr. Harvey M. Grossman: One in State and one in federal and the defendant did not testify on either motion.

Justice William J. Brennan: Had the officer testified on the federal motion to suppress?

Mr. Harvey M. Grossman: He testified on state motion also.

Justice William J. Brennan: Well, was he interrogated cross-examined under the -- at the federal hearing on the conflicts between the state and federal testimony?

Mr. Harvey M. Grossman: Attempts were made to cross-examine him however, the trial judge took the position that the extent or the impeachment consisted in simply reading into the record the contradictory statements and would not permit any further cross-examination to bring out these inconsistencies.

And I might say that in the course of the federal hearing, when effort was made to question Officer Beckmann as to his intent in connection with approaching the cab and the events in question which we deemed entirely material, the Government objected on the ground that the intent of the police dip matter one bit, a somewhat different position that the Government is now urging, and that objection was sustained and that line of inquiry was stopped, so that efforts to bring out these contradictions and so on by cross-examination were restricted as it appears in our brief and we've cited the pertinent passages.

Now, following the events I've related, a trial was held in the state court.

And at this trial, the trial judge suppressed the evidence and unlike Elkins, the record in this regard here is quite clear.

A motion to suppress was made and granted under the state exclusionary rule on the ground that the evidence was seized unconstitutionally on the basis of a search seizure and arrest without probable cause.

Justice Felix Frankfurter: He's also placed after your Supreme Court decided the Cahan case, I take it.

Mr. Harvey M. Grossman: This was all under the Cahan case, yes, sir, Mr. Justice Frankfurter.

Justice William J. Brennan: When you say unconstitutionally, that is violation of the state or federal court?

Mr. Harvey M. Grossman: Well, the -- I can only say that the state court held it unconstitutional.

And apparently, from all that appears in the record regardless that it was unconstitutional under both the state and federal constitutions.

Justice Potter Stewart: Where does its holding appear in the record? Is it in the record?

Mr. Harvey M. Grossman: Yes.

It appears in the record.

Actually, there at page 24 of the record, near the bottom of the page, he states after reviewing the -- after stating -- I can't possibly see how this arrest could had originally been attempted under the information the officer very frankly tells us that he had.

And I don't think any reasonable man would think a felony had been committed because a man comes out of a building, looks up the street and so forth, and then he states that your motion to suppress the evidence will be granted.

The people rested.

At that point, they put on no further evidence and therefore, since the only evidence they'd offered, and this was also the only evidence actually the Government offered essentially at the state court -- at the federal trial had been suppressed.

Naturally, it followed that a judgment of acquittal was entered.

So it's clear that the evidence here was suppressed by the state court.

Now --

Justice Felix Frankfurter: It wouldn't make any difference if they said it was on -- it might make a greater question of res judicata say gone on the ground of -- a consistent ground of federal -- a violation of a federal law but --

Mr. Harvey M. Grossman: Well, I might --

Justice Felix Frankfurter: -- I don't see how reading that page Mr. Grossman I can -- I can find anything on which to hang that he decided the federal -- that he adjudicated the federal issue.

Mr. Harvey M. Grossman: No, there's nothing specific -- we -- we recognize that it is somewhat ambiguous as far as the federal versus state issue is concerned.

Justice Felix Frankfurter: Well, I think it's more than -- it's less than ambiguous because he expresses his view of great freedom in preferring Justice Carter's well-known view.

Mr. Harvey M. Grossman: Yes.

Now, as I have stated the -- as I have stated, the evidence was suppressed by the state court.

And Officer Beckmann -- and in this case, there's another distinguishing factor from Elkins just argued, and that is this.

After the evidence was suppressed by the state court, there is no question even under Officer Beckmann's own testimony but that he went to the federal authorities after he consulted his superiors and presented the prosecution of the facts upon which the prosecution had been based to the federal authorities and consulted with them, whereupon, in fact he stated that he was the -- he acknowledged, he was the instigator of the federal prosecution.

Justice William J. Brennan: And in other words, this is to say -- this case is very clear that federal authorities never heard any of these and so the officer came to them.

Mr. Harvey M. Grossman: That's quite clear, Mr. Justice Brennan.

There's no question as to that.

Now, the federal authorities then prosecuted defendant for unlawful possession growing out of the very same transaction involved here.

The Government stipulated on the motion to suppress that the very same possession was involved and they intended to introduce the same evidence the state court had suppressed.

So that in effect here, the state officer had crossed the street to the federal courthouse and now, another prosecution was under way a federal prosecution arising out of the same set of circumstances.

The motion to suppress was denied.

The trial court, being of the view first that he didn't feel there was an unlawful search and seizure.

And secondly, that even if there was, this didn't really matter because the silver platter doctrine meant that the evidence would be introduced in the absence of evidence of federal participation.

And the trial judges views in that regard, I think, are reflected in the fact that when we endeavored to cross-examine Officer Beckmann as to any general patterns of cooperation, which the Court on its own motion objected to the line of questioning stating that the only thing pertinent as far as cooperation under silver platter is concerned, was cooperation on the particular case involved, and we question the soundness of that even under the silver platter doctrine.

Now, the Court of Appeals for the Ninth Circuit affirmed on the same grounds that the trial court had rendered its decision.

And this Court granted certiorari to determine first the unconstitutionality of the search and seizure and secondly, the silver platter doctrine in the event that search and seizure were held to be unconstitutional.

Justice John M. Harlan: Is the Court of Appeals correct in saying that you did not contest before that Court the illegality of the search and seizure?

Mr. Harvey M. Grossman: No.

Let me -- may -- may I state, and the Government made a very brief reference and I think the gravity of the Government's reference is due to the fact that quite clearly in the trial court, we stated that after the trial court considered it had a right to review the facts independent of the state court's determination and rejected our contention that they were precluded by the state court's determination.

We stated that without waiving our rights in that regard, we would now proceed to try the illegality of the search and therefore, we present it in evidence.

The transcript of the state court proceedings and argued at some length in the trial court that the search and seizure was unlawful.

Our initial position had been that the Court should not get into that because of the state court's determination but as a second position when the Court declined to do so, we took the position that we would establish the unlawfulness of the search and seizure de novo and made every effort to do so.

So that it is not correct that we did not challenge the unlawfulness of the search and seizure, we simply said that while we believe it's an unlawful search and seizure, we also don't waive our claim that the state court determination here precludes a federal reexamination.

And if --

Justice John M. Harlan: But what does -- what does this means then in the Court of Appeals opinion that says Rios, it's talking about the argument in the Court of Appeals, not within the District Court, Rios, is it not argued that the evidence submitted to the federal court fails to support the findings and the conclusion of the evidence that they received?

Mr. Harvey M. Grossman: Well, I might say that the only explanation for that, Mr. Justice Harlan, maybe that as a result of extensive interrogation in the Court of Appeals on the question particularly of the silver platter doctrine and the effect of some of these Court's opinions our argument -- our oral argument at least did not get in, in great length to the unlawfulness of the search and seizure --

Justice John M. Harlan: With your brief?

Mr. Harvey M. Grossman: We discuss -- we discuss the search and seizure in the brief, yes, the -- the question of unlawfulness.

And it's quite clear we have never -- I might say that we never conceded that the search and seizure was lawful.

In fact, we have always maintained that the search and seizure was unlawful.

It was our position as I state that since this was prior to the decision of this Court in Abbate and -- and Bartkus and the limited grants assert here that it wasn't proper for the state court to reexamine the issue in terms of the unlawfulness of the search and seizure.

And we believe that in terms of emphasis, I can truly say that we emphasize at that point would seem to be the -- a principal point, namely that there was no need to determine the unlawfulness of the search and seizure because on the facts of the state determination, that issue was foreclosed from federal reexamination.

And what we said in effect was, and I gather this perhaps made here some relation to what the Government said in the Elkins case below, although I'm not too familiar with the record in that case.

What we said was the question of illegality isn't really one which has to be reached here because we don't feel that there's any basis for reexamination or redetermination of the question in the federal court.

But in the Federal District Court, we made a record and we -- among our statement of grounds, we definitely included within the compass of that, the assertion that the evidence was obtained by unlawful search and seizure, and as I say the state court, the -- if the judges of the Court of Appeals had any indication that that point was not being pressed, I frankly don't feel that --

Justice John M. Harlan: Well, they don't discuss it in their opinion though.

Mr. Harvey M. Grossman: No, they didn't discuss it in their opinion.

In fact, there were many contentions we raised in the Court of Appeals that they didn't discuss in their opinion and -- such as the questions we raised as to the application of the silver platter doctrine and the possible McNabb approach and so on which we had suggested in argument.

I mean their -- their opinion treated the matter as a rather routine one and -- and left many of the questions unanswered.

Most of the Court of Appeals' opinion is devoted to the Jencks rule which was about the last point in our brief and one which we didn't even present here and which was really a minor point in our argument, but one which apparently intrigue the Court of Appeals sufficiently that they seized upon this as the principle subject to their discussion, perhaps dealing with the silver platter doctrine was so firmly established that these other questions were too important.

But as I state, we did contest, we did contest and the reading of the record in the District Court will show quite clearly that we clasp the unlawfulness of the search and seizure and we certainly do so here.

Now, the question then, we submit, is, was there an unlawful -- search and seizure --

Justice Felix Frankfurter: Would you agree, Mr. Grossman, the Court of Appeals is right in saying the silver platter doctrine claims that it's not very colloquy to describe what it is, presupposes illegalities.

Otherwise, there's no problem.

Mr. Harvey M. Grossman: Well, I think --

Justice Felix Frankfurter: I don't draw any inference from that.

I don't draw conclusions.

All I'm saying is that isn't that so?

Mr. Harvey M. Grossman: I believe that --

Justice Felix Frankfurter: So what is the problem?

Mr. Harvey M. Grossman: Well, I believe the -- the silver platter doctrine at least as it was applied certainly as it is applied here and -- and I would agree with --

Justice Felix Frankfurter: But it isn't applied in any of the cases in which -- in which it was -- in which this Court has been dealing is the effect upon the use of materials, evidentiary materials obtained under questionable circumstances and more particularly illegalities by state officers who precluded submission to the federal court.

Mr. Harvey M. Grossman: Mr. Justice Frankfurter, that is correct.

I think that in all of the silver platter doctrine, the question would not be involved, there was no question of illegality were involved and that is -- that is a presupposition of the silver platter doctrine if we assume that to be a valid doctrine.

Justice Felix Frankfurter: Well, that's a different question.

All I'm saying --

Mr. Harvey M. Grossman: Yes.

Justice Felix Frankfurter: -- is one statute.

Mr. Harvey M. Grossman: Yes.

And -- and therefore, we submit that the first question here is to determine the unlawfulness of the search and seizure.

Now, our belief is that the question of the unlawfulness under state law in light of the state court's determination is not properly a matter for reexamination in the federal courts, but we think there is another matter which the federal courts may properly examine at least, and we particularly submit this in light of the limited grant of certiorari here, and that is, whether aside from violating the state constitutional standards, the search and seizure here violated federal constitutional standards because it was made without probable cause.

And that gets us to in a sense to the heart of the problem of unlawful search and seizure as it's presented here.

Now --

Justice Felix Frankfurter: That -- that your -- the problem -- the first thing that you put presupposes that the -- the Fourth Amendment is binding upon state agencies in the state.

Mr. Harvey M. Grossman: No --

Justice Felix Frankfurter: I'm not saying that -- that answers the -- all the problems we have had.

But when you say that at least the assumption must be when you say you must inquire whether what state officials did would be if done by federal officials be a violation of the Fourth Amendment, you certainly imply that the restriction of conduct upon the police constituting unreasonable search and seizure condemned by the Fourth -- Fourth Amendment is a restriction upon state officials.

Is that right?

It must be so otherwise what's its relevance?

Mr. Harvey M. Grossman: Well, may I say this.

We -- we think that the -- well we believe that the guarantee of freedom from arbitrary police invasion of privacy contained in a Fourth Amendment is implicit in the concept of our liberty as described in the Wolf case.

Justice Felix Frankfurter: But the Wolf case has decided the contrary.

You may ask this Court to overrule it.

Mr. Harvey M. Grossman: Well --

Justice Felix Frankfurter: But how you can say it when most of the states of the Union say the other thing, and this Court has said that their rules of law are not violative of the Fourteenth Amendment, I don't understand.

I don't understand your argument without taking that attack but I can understand that kind of legal goulash.

Mr. Harvey M. Grossman: Well, may -- may I say that while -- and -- and I shall proceed to this point later, while we believe that the Wolf holding, insofar as the constitutional question is involved, took the position that while evidence unlawfully seized may not be excludable in the federal courts, that nevertheless such -- where the state sanction such unlawful searches and seizures, it is acting in violation of the Fourteenth Amendment, we think that there is -- it is not necessary actually to rest this case solely upon Wolf, because after all, the final analysis we are dealing here with federal courts.

In the Wolf case, the Court was confronted with the very different problem, because there, the only possible reach of the Court in -- in a sense or -- or basis for the Court to apply was due process because we had state courts and state officers.

Justice Felix Frankfurter: I understand.

I follow you.

I follow all that.

Mr. Harvey M. Grossman: Here -- here --

Justice Felix Frankfurter: I am understanding it, I think, but what I -- are you intervening when you suggested we're going to embark upon an inquiry whether the search and seizure by the two police -- by the policeman and the policewoman constituted a violation of the Fourteenth -- of the unreasonable search and seizure under federal law.

And -- and I suggested that that is -- mixing up things.

Mr. Harvey M. Grossman: Now, insofar as the question of the unlawfulness of the search and seizure and I -- and I believe it was my intention to -- to indicate that the standards which were laid down by this Court in the cases involving exclusion of evidence seized by federal officers which we believe are pertinent to the application of an exclusionary rule by state officers regardless of whether it is deemed to rest upon constitutional grounds or on grounds of supervisory powers or whatever grounds it may rest upon.

We think that certainly, determining whether the evidence was seized with or without probable cause which both the states and federal governments with practical unanimity apply as the test of a lawful search and seizure is one that lies at the crux of the problem.

Now, in that regard, we believe that this case presents facts which lie outside the periphery of the area of permissible search and seizure as this Court described the facts in Brinegar and in the Carroll case, because in those cases, the facts involved a driver and a vehicle recognized as having been lately involved in unlawful operations, whereas in the present case, the -- and also was heading for a probable illegal market.

In the present case, the police testified they had no idea as to who this defendant was or what the taxi cab was and so on.

In other words, it's not surprising the Government concedes a lack of probable cause at the outset of the transaction.

Now, we submit that events that occurred later in the course of the transaction cannot validate an enterprise embarked on according to the police to see if defendant had narcotics in his possession, cannot validate an enterprise unlawful from its beginning and further that even at the time the police made their formal arrest of the defendant, even after they'd grabbed him, Officer Beckmann had reached them and grabbed defendant by the arm and so forth, even then there was no probable cause because it wasn't till the defendant had alighted from the taxi cab and been placed under formal arrest.

Not only under a -- an arrest in fact similar to that in the Henry case recently decided by this Court.

It wasn't until then that the police first really made any real observation of this object and then determined that it appeared to be a container of a narcotic powder.

And we submit at that point certainly the police could not justify the prior course of conduct.

In other words, while the transaction was unlawful from its inception and the search and seizure began at an earlier point, we submit probable cause doesn't come into the picture until a much later time.

Certainly, Officer Beckmann's later suggestion that he flashed his light on the object and momentarily viewed it while defendant was still in the cab which is certainly in about face from his original state court testimony which the Government vouched for and entered in and stipulated to introduction of in the federal court proceeding.

We don't think that an officer should be able to justify conduct in a probable cause theory on any such flimsy ground.

Justice Felix Frankfurter: Mr. Grossman, I -- I -- I'm very eager to understand and follow your argument with understanding, am I right in saying that the last that you -- the last -- what you've said during the last few minutes in analyzing and critically commenting upon the conduct on Beckmann and Grace, it's precisely the argument you would make if this had been a federal prosecution and Beckmann and Grace had been FBI agents.

Mr. Harvey M. Grossman: Yes.

Justice Felix Frankfurter: Am I right about that?

Precisely, you would make that argument if this were Beckmann and Grace had been narcotic agents, let me say, and that had done what they had done, what Beckmann and Grace did, and they'd made the arrest and they had followed the prosecution in federal court, is that right?

Mr. Harvey M. Grossman: That is correct, Mr. Justice Frankfurter.

Justice Felix Frankfurter: -- before I go back to my question, that the assumption in the light of validity of that argument is that the limitations upon arresting power and searching power, a federal enforcing authority, a federal law officer, by virtue of the Fourth Amendment, bind the states and therefore the state's officials.

That must be the implication otherwise I don't see the relevance of that argument.

Mr. Harvey M. Grossman: Well --

Justice Felix Frankfurter: It may -- may be so but although I want to know what --

Mr. Harvey M. Grossman: Yes.

Justice Felix Frankfurter: -- I'm dealing with and not have my mind confuse.

Mr. Harvey M. Grossman: Well, it is our position that the -- that while the same facts relating to illegality would be presented in either case as posed by the justice, that the basis of exclusion would not necessarily have to be the same.

It may very well be that we would attempt to show either case that the officers acted in the absence of probable cause.

But having established that fact, then determining why this Court should exclude the evidence could be based, of course, upon an argument.

And we submit that one of our bases for so urging would be the constitutional argument, namely, the Fourth and Fourteenth Amendments.

And I might say that the Fourth Amendment, I think, comes to the play here in a somewhat different way.

And I'd like to get back to something Mr. Justice Harlan referred to yesterday.

\We're dealing here with federal action regardless of whether we're talking about state or federal officers because there are federal courts involved here.

And to say that the Fourth Amendment -- and I will take issue with Mr. Counsel Wiener's argument on this point yesterday.

We submit that the Fourth Amendment has a very vital part here because to say that the Fourth Amendment applies to federal officers is only part of the story.

We submit that it should very well apply to actions of the federal courts, so that we don't have to reach the Fourteenth Amendment in this case.

Justice Felix Frankfurter: The federal court didn't make any search and seizure.

The federal court comes into play because evidence was admitted which, under your contention, was illegally obtained by state officials and then given to the thrust of the United States prosecutors.

I'm not -- I -- all I --

Mr. Harvey M. Grossman: We submit that --

Justice Felix Frankfurter: I'd like to have an analysis that I can understand.

I can understand you're saying the whole case should be overruled.

And I can understand your saying the Fourth Amendment applies to State.

I can understand those propositions, but I can't understand arguing and not tenably saying we think Wolf was wrong.

We think the Fourth Amendment also applies to the State and therefore its officials.

Not doing that, accepting the Wolf case, and going on and arguing as though this conduct was by federal officials.

Mr. Harvey M. Grossman: Well --

Justice William O. Douglas: This, I -- I think your argument -- I thought it was fairly obvious this is a federal prosecution.

It's the same -- the same as if the federal -- federal officials had -- had employed these state officials to do this job in effect it see -- they're getting they're -- they're getting the benefits of an illegal state action that would be illegal by our federal standards.

Justice Felix Frankfurter: You started out your argument by saying quite candidly in answer to Justice Stewart's question that in this case, there is no controversy that there was any collusion or stimulation or whatever word you used, any kind of relationship whereby federal officials made use of state authorities and to say it's all the same whether federal people did it or didn't it, is to confound counsel.

Mr. Harvey M. Grossman: May I state if -- if I --

Justice Felix Frankfurter: Maybe as a matter -- in fact the result maybe the same.

But I'd like to add some theories on the basis for understanding the claim that you made.

Mr. Harvey M. Grossman: If -- if I mislead Mr. Justice Stewart in that regard, I do not mean to.

It was my suggestion by way of clarifying the question he posed to indicate that in this case, unlike Elkins, the instigation of the federal prosecution without question was one by the state officers, because the state policeman said when I couldn't get my name convicted in the state courts, so I consulted my superiors and we decided the best way to do it then was to go over to the federal courthouse, and I then went over and told them about the facts and instigated a federal prosecution.

Justice Felix Frankfurter: But all of that -- followed what they did in getting the incriminating materials, isn't that true?

Mr. Harvey M. Grossman: Well, in terms of --

Justice Felix Frankfurter: (Voice Overlap) true that the incriminating materials were -- were brought by them without any knowledge or collusion with stimulation through the federal officials.

Mr. Harvey M. Grossman: Well --

Justice Felix Frankfurter: Is it or is it true?

Mr. Harvey M. Grossman: May I say in answer to that question, Mr. Justice that we believe that while -- there was no participation.

We agree there was no participation by the federal officers the time Officer Beckmann and Grace approached this cab.

As a matter of fact, if Officer Beckmann, and this was relevance to any suggestion that there was any -- that there was the danger bungling state officers interfering with federal prosecutions when they well asked if Officer Beckmann and Grace had never made the search and seizure and turn this evidence over to the federal authorities, how in the world can we assume that there would have been a federal prosecution.

Now, when they came to the federal authorities, we quite frankly believe that with the federal authorities should quite properly have done.

And if the Court decides this case, as we are urging it to be decided, would do would be to say having obtained this evidence unlawfully, we cannot -- we will not land our aid and neither can we invoke the aid of the federal courts.

Justice Felix Frankfurter: I can understand but will you please answer my question whether there was any participation, stimulations, suggestions, knowledge on the part of the federal authorities when Beckmann in the -- regarding the circumstances by which Beckmann and Grace stopped the cab, made a disclosure of their identity, arrested these people and took the materials.

Was there any --

Mr. Harvey M. Grossman: Not a -- not at the time of the search and seizure, Mr. Justice.

Justice Felix Frankfurter: Well, that's what I'm asking you.

I'm now asking you whether (Voice Overlap) --

Justice William O. Douglas: But that's been claimed all along.

I -- I thought your argument was that -- was irrelevant because this --

Mr. Harvey M. Grossman: It -- it is our --

Justice William O. Douglas: -- evidence is being used by federal agencies --

Mr. Harvey M. Grossman: It's our position --

Justice William O. Douglas: It may be with --

Mr. Harvey M. Grossman: -- with full knowledge of what -- how it was required.

Justice William O. Douglas: It is our -- position, Mr. --

Justice Felix Frankfurter: I understand that argument, but will you please answer me whether there was any participation, any sharing --

Justice William O. Douglas: There were --

Justice Felix Frankfurter: -- in the way in which these materials were obtained.

Justice William O. Douglas: I think your briefs (Voice Overlap) --

Mr. Harvey M. Grossman: No.

Mr. -- Mr. Justice Frankfurter --

Justice Felix Frankfurter: Are you arguing this case?

Mr. Harvey M. Grossman: Mr. Justice Frankfurter, it is our position that there was no participation at the outset at the time the search and seizure was conducted, and that of course is the reason we have asked this Court to reject the silver platter doctrine.

Obviously, if the case was one in which there was participation in the particular case, the silver platter question would never have reached this Court.

Justice Felix Frankfurter: But it isn't always clear whether there's participation or not and that is a contested issue.

Mr. Harvey M. Grossman: Well, in this --

Justice Felix Frankfurter: And it might be in this case.

Mr. Harvey M. Grossman: In this case, there is no participation --

Justice Felix Frankfurter: All right.

Mr. Harvey M. Grossman: -- except the fact that the evidence, when turned over by Officer Beckmann, was being used, prior to that time, there was no participation.

Now -- but it is our position, and getting back to the some of the questions previously posed that even in the absence of participation, the federal court, either on constitutional ground, which I've already mentioned or on the basis of the McNabb approach, in the exercise with supervisory over -- powers over the federal courts, should not say granted this evidence was seized without probable cause, granted if it had been seized by federal officers that we would reject it, granted that we believe that with the state sanctions unlawful searches and seizures, it is acting in derogation of the Fourteenth Amendment and granted that the states in an effort to preclude unlawful searches and seizures has attempted to exclude this evidence and to discipline its officers.

Nevertheless, we feel that if the officer comes into the federal court in such a situation, we will permit him to introduce this evidence in a federal prosecution.

Now, I might say at that point that the exclusionary rule of the state courts is a matter which can't be ignored by this Court because assuming the Court is merely can deal with the problem as one in the exercise of its supervisory powers in fashioning a rule in the exercise of those powers, can the Court properly disregard the fact that 21 of the states in which the rule is going to be applied, 21 or almost half of the states now follow the Weeks rule.

And in those states, the disciplinary effect of the state rule will be seriously undermined if the state officers need only do what Officer Beckmann did here and cross the state -- the street to the federal courthouse, nor can it be said that, as was indicated in the Wolf opinion, that proper respect is being given to the state judicial processes and the rights of the state to choose their methods when California finds the only means it has to exclude unlawfully seized evidence, or I should say to deter unlawful searches and seizures, is to exclude evidence unlawfully seized as well explained by Justice Traynor in the Cahan case and the courts nevertheless state that where the state attempts to invoke the exclusionary rule, a federal court will lend its aid to such an undertaking.

And I might say there is another aspect of the problem in shaping the rule that bears consideration.

And that is this.

This isn't simply a case of bungling by state officers which embarrasses a federal prosecution.

Not only was this a prosecution which was first called to the attention of the federal authorities by the very state officers who made the unlawful search and seizure, but this is a case where, assuming our contention as to the facts to be correct, there was a search and seizure without probable cause in violation of constitutional standards laid down by this Court as well as by the California courts.

Now, such a search and seizure, we submit, doesn't involve mere bungling.

It involves an invasion of constitutional rights which should be deterred and while it maybe that an individual in a given case would go free if the exclusionary rule is invoked in such a case, and the same course is true in a federal prosecution where federal officers are involved, we submit that whereas -- certainly where the states have gradually been determining that the only effective means of enforcing the constitutional guarantee is to exclude the evidence, that the federal courts should not say, well, we believe that where state officers were involved in spite of the fact the states may feel the contrary, the need to convict the defendant outlays the need to deter invasions of his constitutional rights.

And so we submit that this isn't the case of mere technical or minor violations but one of very serious violations of rights.

Justice Potter Stewart: Mr. Grossman, are we -- is the basic issue here simply want us to whether or not, we're going to promulgate a rule of evidence for the federal courts under our rule making power?

Mr. Harvey M. Grossman: We believe this -- yes, we believe that this case can very properly be resolved as a rule of evidence for the federal courts.

And that --

Justice William O. Douglas: Under the McNabb --

Mr. Harvey M. Grossman: Under the McNabb approach.

In other words, this (Voice Overlap) --

Justice Potter Stewart: Well, under -- under specific --

Mr. Harvey M. Grossman: -- constitutional question.

Justice Potter Stewart: -- rule making power that they had.

Mr. Harvey M. Grossman: It has the rule making power.

And unlike a situation such as Wolf where deference to the state court rule making power is involved, if this Court were to say, “Well, it isn't for us to decide what evidence is to be admitted or excluded,” one, they will ask, “Who is going to assume that function?”

So we believe that the disciplinary rule can be invoked as a rule of evidence in the federal courts.

And further we submit that regardless which approach the Court takes here, the Court is going to be fashioning a rule of evidence because if the Court should adopt the silver platter doctrine and say that regardless of the question of illegality, the fact that state officers seize the evidence, makes it admissible whereas a federal officer seizes it, it's not admissible, this, in itself, is fashioning a rule of evidence.

So this Court has to pass essentially on the question of fashioning the rule of evidence.

And we believe under the McNabb approach, the proper rule is --

Justice Potter Stewart: Well, quite apart from McNabb, we have the expressed statutory and -- power in the field of evidence to make the rule --

Mr. Harvey M. Grossman: That is correct.

Justice Potter Stewart: -- based upon reason and experience, is that not true?

Mr. Harvey M. Grossman: That is correct.

And we believe reason and experience dictate under the rule making power of this Court that the evidence which is obtained under circumstances of this case should be excluded.

And in fashioning such a rule of evidence, this Court, as Mr. Justice Stewart has observed, would merely be fashioning a rule within its general rule making power.

And we submit that that is all that's necessary here.

So --

Justice Felix Frankfurter: Well your qualifications under the circumstances of this case that implies that under one set of circumstances, which I think was what the Brandeis dissent indicated, under one set of circumstances, you would exclude and another set of circumstances, you would not exclude but would not turn it merely on whether or not there was illegality on the part of state officers.

You said just now under the circumstances of this case.

Mr. Harvey M. Grossman: Well --

Justice Felix Frankfurter: Were there any -- in the other case, there was an argument that they were horrendous, that they were really shocking circumstances, Mr. Wiener said.

Are there any particular aggravating circumstances in this case?

Mr. Harvey M. Grossman: Yes, we -- we believe that there -- that there are, if the Court takes the approach that that is the -- is the standard to be applied.

Justice Felix Frankfurter: MAnd I can understand the flat rule that any -- any evidence obtained illegally by state enforcing officers, then put at the disposal of federal authorities, is to be excluded in the federal courts.

I can understand that, but my inquiry was aroused by your qualification in the circumstances of this case.

Mr. Harvey M. Grossman: Yes.

May I state in that regard that we believe that if a case by case approach were adopted, well, we don't -- we do not expressly advocate that as a rule because we think a much simpler rule of evidence among which would serve much more purposely to discipline state officers would be the same categorical rule applied in the case of federal officers, rather than telling them that they must, at their hazard, determine whether they are seizing it too unlawfully or -- or unlawfully enough even if the approach of the case by case analysis were taken here.

We think that a case where a search is made without probable cause is a far greater thing than even a search in an effect of warrant, because it puts the police officer, in a sense, in the role of the one who is acting, enacting, I might say, without the sanction of the probable cause which the courts have -- have indicated as a proper standard.

In other words, we think even if a case by case approach were adopted in the case of unlawfully procured evidence, where lack of probable cause is involved, and practically every case, this would be a case where the Court should exclude the evidence, because to do otherwise would be to say that, for instance, if the good faith of the officer were to be the controlling factor, then he, rather than the judicial authorities, would be the ones to decide the test of probable cause, because if he thought probable cause existed, he'd be in good faith, and if no probable cause existed, there's nothing the federal courts could do about it.

Justice Felix Frankfurter: One wouldn't be casuistic to suggest that a search made on the basis of a warrantless warrant, an illegal, unsupportable warrant is worse than an officer doing it on his own, because you cloak yourself with legal authority and make yourself the agent of judicial authorization when in fact you haven't got it.

So then one might say that's worse than the --

Mr. Harvey M. Grossman: This --

Justice Felix Frankfurter: -- taking out the right to seize.

Mr. Harvey M. Grossman: May I say --

Justice Felix Frankfurter: All I'm suggesting is the difficulties of drawing these lines.

Mr. Harvey M. Grossman: Well, the difficulties of drawing the lines of the reason I had suggested, if the Court please, that perhaps an absolute prohibition without drawing the lines is done in the case of federal officers is the proper approach because that avoids the --

Justice Potter Stewart: If you --

Mr. Harvey M. Grossman: -- amount to the problem.

Justice Potter Stewart: -- if we're going to proceed under the rule's enabling act it -- that is a general rule, is it not? (Voice Overlap) --

Mr. Harvey M. Grossman: Yes.

And we're -- we're contending -- we believe the proper approach and the proper rule would be a general rule of exclusion because the very problems which Mr. Justice Frankfurter refers to could properly be avoided by simply laying down as a rule of evidence a general rule.

And in that way, we avoid problems not only of measuring degree of unlawfulness.

We avoid problems of injunctions as in the Elkins case.

We avoid problems of federal state conflicts by permitting state officers to circumvent state exclusionary rules as happened in -- in our case.

We avoid all of these problems by simple clearcut rule of evidence which we think is founded on proper policy consideration which we've outlined at length in our brief.

I would like to save the remainder of my time for rebuttal if I may.

Justice Felix Frankfurter: Let me -- may I suggest that hardly any rule of evidence is without qualification, whether the hearsay rule or the best evidence rule or the etcetera, etcetera.

So that what you call a simple rule of evidence has not -- it's analog in the domain of evidence.

Mr. Harvey M. Grossman: Well, may -- was that a --

Justice Felix Frankfurter: I'm merely suggesting that a simple rule doesn't mean that the -- be -- it has to be unqualified.

Mr. Harvey M. Grossman: No.

I -- I would like to state that the rule which we had in mind could well be fashioned in light of federal exclusionary rule which we think would serve as a good guide in fashioning a rule in this area under the rule making power of the Court.

Thank you.

Chief Justice Earl Warren: Mr. Wilkey.

Argument of Wilkey

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

The Government position in the Rios case is in three parts.

First of all, we take the position that on the facts of this case, there was no arrest until after the officer had seen and identified the contraband.

And that -- and an officer walking up to a car and identifying himself does not constitute an arrest.

Secondly, that there was no search and seizure --

Justice William J. Brennan: Mr. Wilkey, which version of the facts was factually to take?

Mr. Wilkey: Well, Mr. Justice Brennan --

Justice William J. Brennan: For the -- for the purpose of this argument.

Mr. Wilkey: -- we don't agree that there are contradictory versions.

We think that what happened in the three times that officer -- the officer testified.

He was asked different questions by the different counsels.

And the federal judge, in making his finding, said one of the reasons he was making a different finding from the state court was that additional testimony had been adduced.

And I don't find anything contradictory in Officer Beckmann's testimony.

I find that he elaborated on and explained more in detail of what he had said before but I find no contradictions in that.

That's what I believe.

Justice William J. Brennan: Well, for the purposes of this argument what's your version of what in fact he did?

Mr. Wilkey: I'll give you that one, two, three, four, Your Honor.

The third point I want to mention I'm going to reach is -- or second point that there's no search and seizure in illegal sense at all, that this was abandoned contraband.

The third point that this Court should not adopt any exclusionary rule here excluding the evidence in the federal court and the silver platter doctrine.

And now, Mr. Justice Brennan, in regard to these facts, first of all, the officers were intentionally placed in a neighborhood with the second worst reputation in Los Angeles for narcotics activity.

And this very officer had made most of his 22 arrests in nine months in this neighborhood.

Secondly --

Justice Potter Stewart: That's where he's been spending all his time, isn't it?

Mr. Wilkey: Apparently so, Your Honor.[Laughter]

Justice Potter Stewart: I probably see where he's going to make.

Mr. Wilkey: I -- I see your point.

He was -- he was stationed there.

And my point is that during the time he was there and spending his time there, he made 22 arrests --

Justice Potter Stewart: (Voice Overlap) --

Mr. Wilkey: -- for narcotics.

Now, secondly, after spending his time there, he was familiar with the neighborhood and he saw a cab parked here on this parking lot by the apartment house and that was unusual.

Thirdly, he saw the petitioner come out of the house, walk down to the street, look around, both -- all three ways on the corner, then go back walk around the lot, then get into the cab.

He was sufficiently suspicious to him and his fellow officer that he felt he ought to follow the car.

Their -- fourthly, their curiosity aroused, no intent to make any arrest, followed the car to see where it would go.

Fifthly, the car then stopped at a red light behind other cars in the track.

Sixthly, the officers alighted for the purpose of inquiry.

There was no intent to arrest, as shown by the record here on page 14.

Now, I understand from petitioner's reply brief, particularly on page 9, although I'm not certain of this.

I understand that petitioner contends that the arrest was made at the time the officers walked up to the cab that that was the arrest moment, and therefore, on that basis, there -- it was illegal because there was no probable cause.

Now, we say that there was no arrest at that time and we make no argument there was any probable cause for an arrest at that time.

Seventhly, the officer, with flashlight in one hand and badge in his left hand, identified himself to both the petitioner and the driver of the vehicle.

Now, there was no threat of any search.

There was no threat of any kind.

And I want to lay at rest in the idea that the officer had a third hand with a gun in his hand at this moment because it was admitted by the petitioner below on page 23 when the petitioner in argument, not this counsel here contended, he approached his gun in one hand, his badge in the other, as I understand it.

And that is when defendant jumped out of the car and ran he said.

The Court, “No, he had his flashlight in one hand and his badge in the other.”

Mr. Forno, “That is right.

Flashlight and the badge

.That is right.”

The Court, “That is right.”

So --

Justice Charles E. Whittaker: Mr. Wilkey, does not this knocking off dispute about detail of this nature get down to whether or not it was resolved by findings made by the trial judge as shown at the 101 page of the record?

Mr. Wilkey: I think that that is correct, Mr. Justice Whittaker.

The trial judge heard all of the evidence available, the original transcript, the testimony on the motion to suppress, and he found on all of the evidence that there was no unreasonable search and seizure.

Secondly, he found that there was abandoned contraband here and in fact and in law, no search and seizure.

And thirdly, that even if it was illegal, the silver platter doctrine applied and the evidence was receivable.

Now, we submit that for this Court to reverse the conviction, this Court would have to say that the findings of the trial judge sustained by the Court of Appeals that the search was reasonable, would -- you'd have to upset that finding on the facts.

That is correct.

Justice Felix Frankfurter: The difficulty is that we've got a state court that said something else, doesn't it?

Mr. Wilkey: Yes.

But while certiorari was sought on the binding effect of the state court judgment, it was not granted on that.

It was limited to the independent determination of the federal court, and I would point out that this petitioner does not concede that point.

But in Elkins, the petitioner conceded that the federal court would have the right and power and should make some independent determination.

Now, we have the officer identifying himself with the badge and the flashlight.

Now, at this point, still --

Justice Potter Stewart: Now, Mr. -- Mr. Wilkey, just -- before you get away with that, you showed us the colloquy in Court in which the -- the Court, the judge, of course, wasn't there that night and the lawyer who also, of course, wasn't there that night, agreed that the policeman didn't draw his gun that -- but that somebody was there that night, i.e. the taxicab driver testified very explicitly that the policeman had a drawn gun, didn't he?

Mr. Wilkey: Yes, he did.

And I suggest this.

That the -- the taxicab driver's testimony must be evaluated in the light of the circumstances in the other testimony in the case.

And the taxicab driver was not positive as to when the gun was drawn.

And I submit that on the facts, the time when the gun was drawn was after the petitioner alighted from the cab and the officer had put away his flashlight and with one hand, as uncontradicted, he was seeking to restrain the petitioner.

And then, at that time, it must have been when he drew the gun.

And the petitioner --

Justice Potter Stewart: It does -- the petitioner was later shot.

And he --

Mr. Wilkey: Yes, sir.

Justice Potter Stewart: -- certainly wasn't shot with a flashlight

Mr. Wilkey: Absolutely.

Absolutely.

And the --

Justice Charles E. Whittaker: That is why I asked the question (Inaudible).

Is the running policeman or basis upon which we here can determine facts that are in controversy in detail and that have been resolved.

There's some reason why we are not bound by the findings made below.

Mr. Wilkey: Not unless the finding on the facts of the District Court was so unreasonable and unwarranted by the evidence.

Justice William J. Brennan: Where are these findings, Mr. Wilkey?

Justice Charles E. Whittaker: Page 100 and 101.

Justice William J. Brennan: (Voice Overlap) --

Mr. Wilkey: 90 on -- page 99, I believe it began, the middle of the page, I -- second paragraph.

I've read the transcript before Judge Otto Moore the next paragraph.

There's been additional testimony before this Court.

He says, “I must reach the conclusion.

There was reasonable ground for the arrest and that there was nothing unreasonable about it.”

Justice William J. Brennan: Is that the finding of fact?

Mr. Wilkey: That's the finding of the legal conclusion of the judge reached.

And then he recites the -- the facts.

There is no formal finding but I think the rule in the federal court is that the judge's opinion reciting the facts may be taken as findings of facts.

And that's what this judge did here very carefully.

From page 99 there to the middle of page down -- near the bottom of page 100, the Trial Judge, United States Judge, recites the facts as he understood them to be from the testimony he heard.

Chief Justice Earl Warren: Mr. Wilkey, did I understand Mr. Grossman to say that he endeavored to -- to find out what the true version of this arrest was before the District Court and the District Judge refused to let him put on testimony concerning officer Beckmann?

Mr. Wilkey: I believe the counsel didn't make a statement like that but the record reflects that defense counsel had ample opportunity at each hearing to examine Officer Beckmann and while --

Chief Justice Earl Warren: District Court, in the District Court?

Mr. Wilkey: In the District Court, yes, Mr. Chief Justice.

Chief Justice Earl Warren: Was he -- he was not denied at any time the right to cross-examine him on the subject?

Mr. Wilkey: I think that there are two or three places in the record where the Trial Judge said that a further inquiry along certain lines would not be material.

Chief Justice Earl Warren: Where was that in the record?

It might be material to what we're talking about now on question of findings.

Mr. Wilkey: Mr. Chief Justice, I would -- I can' find that at this precise moment.

Chief Justice Earl Warren: But would you do that in the lunch hour?

Mr. Wilkey: I would like to do that if I may.

Chief Justice Earl Warren: Yes, you may.

Mr. Wilkey: Counsel, I think, do not point that out, but I will find that over the lunch hour.

Now, at this point, at the identification and all of these things, Your Honor, that I -- Mr. Chief Justice, that I'm discussing are brought out in the record by the testimony of Officer Beckmann and the others so there's ample development here, I think, of the facts.

Chief Justice Earl Warren: Yes.

I -- I don't know.

I -- I just heard him say that and I -- I wondered -- how you responded to it.

Mr. Wilkey: I will find it for you, Your Honor.

Now, after the identification with the flashlight in one hand and the badge in the other, then is when the petitioner did what he need not have done, what he should not have done and what no innocent man could have done.

He removed the narcotics in the container and dropped them on the floor.

Now, this was in an intersection with four overhead streetlights fairly illuminated and the officer had a flashlight, and he saw it.

And he was an experienced narcotics officer and he identified the contraband in the usual container and he realized what he had.

Now, it is at this point.

It is at this point that not only probable cause for an arrest exists but there is a necessity for an arrest and in seizure if any police officer is doing his duty.

And it was at this point and only after the contraband had been dropped that the arrest and whatever seizure taking there was, was made.

There is conflicting -- there maybe conflicting testimony as to the exact -- who opened what door.

But it is clear that the petitioner sought to alight from the cab.

We take it that the petitioner and the officer simultaneously sought to open the door and that petitioner alighted.

He certainly made no effort to get out from the other side of the cab.

He attempted to alight on that side.

The officer seized the petitioner on one hand and told him he was under arrest.

With the other hand, he attempted to reach for the narcotics.

There was a struggle.

I think at this moment, he drew -- the officer drew his gun.

The second officer came around, picked up the narcotics, and the petitioner broke loose, ran, and was apprehended later after being shot.

There was quite a struggle as the record reflects the details of the struggle.

The time element as estimated by the cab driver was approximately one minute from the time the officer approached the cab until the petitioner broke and ran.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Malcom Richard Wilkey

Chief Justice Earl Warren: Mr. Wilkey, you may continue.

Mr. Malcom Richard Wilkey: Mr. Chief Justice, may it please the Court.

Mr. Chief Justice, in response to your inquiry as to at anytime in the record that the petitioner may have been cut off in his seeking to introduce evidence, and in our search during my lunch hour, the only place that we find that he was temporarily even cut off and he does make a point out of footnote of his brief is on page 60.

Justice Hugo L. Black: His brief?

Mr. Malcom Richard Wilkey: Petitioner's brief.

Yes, there's a footnote which he refers to this, page 60 of the record, Officer Beckmann, “Have you ever turned over evidence in a narcotics case to the federal officers prior to the arrest in this case?”

The Court, “What is the materiality of that?”

Now, there are other places in the -- I think he was, I say temporarily restricted in his inquiry at that point but there are -- there are other places in the record where he went back to that same subject and did make unrestricted inquiry on page 70 and on page 83 particularly.

He was allowed to make inquiry in regard to police reports in the -- any possible participation or collusion.

So, he -- he actually wasn't cut off there.

And furthermore, I think in response to question by Mr. Justice Frankfurter, the petitioner's counsel stated very clearly, there was no participation or collusion in this case.

Now, that is all we've been able to find.

We haven't gone through the entire record.

Chief Justice Earl Warren: It's all right.

Mr. Malcom Richard Wilkey: We've done the best --

Chief Justice Earl Warren: Yes.

Mr. Malcom Richard Wilkey: -- we could at the time.

Chief Justice Earl Warren: That's the best you can do.

Mr. Malcom Richard Wilkey: Thank you.

Chief Justice Earl Warren: Thank you.

Mr. Malcom Richard Wilkey: Now, after having detailed the facts of this case, which we believe indicate very clearly that there was no arrest until after the officer saw the contraband and that there was in fact no search and seizure in the sense known to the law that there was in effect abandoned the contraband which was taken by the officers.

I want to come to the applicable law particularly the Henry case decided in November 1959 of this Court.

Now, I think it most important that in the Henry case, there was a concession by the Government in the trial court which was adhered to all the way through these proceedings in this Court that there was an arrest when the agents stopped the car in Henry.

And the Government said, and it was noted hereby in the Court's opinion that we were not arguing in Henry that the arrest did not take place at a later time.

We adhered to the concession, and that we would argue at this point as to the time of arrest in the Rios case, and that is what we are doing now.

Now, we do not think that it is too relevant in all cases as to how the car was stopped because we do believe that there is a right to halt a moving vehicle for the purpose of inquiry even though there is no arrest.

But if there is any distinction between who causes the car to be stopped, we point out that in this case, Rios, the car was halted at the light behind other cars in traffic at the time that inquiry was first inaugurated.

Now, Mr. -- the Court speaking through Mr. Justice Douglas in Henry said, when the officers interrupted the two men and restricted their liberty of movement, the arrest, for the purposes of this case, was complete.

Justice William O. Douglas: I think you reserved the decision on the -- this case, right now didn't we, this Rios case?

Mr. Malcom Richard Wilkey: Exactly, Mr. Justice Douglas.

Justice William O. Douglas: The Rios case, yes.

Mr. Malcom Richard Wilkey: We pointed out that that would be argued later in the Rios case in the footnote.

So we think that on the standard, even enunciated in the opinion here in Henry, when the officers interrupted the two men and restricted their liberty of movement, the arrest for purposes of this, the Henry case, was complete.

But here there was no restriction of movement of the petitioner until after he had dropped the contraband.

He was sitting in a halted car and the officers merely came up to the car.

Now, the Court further stated in Henry, and this is very applicable here as to there reasonableness of the officers actions.

The police must have reasonable grounds to believe that the particular package carried by the citizens is contraband.

Its shape and design might at times be adequate.

The weight of it and the manner in which it is carried might at times be enough.

Now we submit that the container -- narcotics in Rios to any police officer conversely with the narcotics strategy spelled out narcotics by its shape and design and by the color and size.

The officer could not ignore what his eyes told him as he saw the narcotics container on the floor of the cab.

Now in the Henry case, there was a dissenting opinion by Mr. Justice Clark in which Mr. Chief -- the Chief Justice joined, in which it was said that the Government concession that the stopping constitute an arrest was, I'm not using the words in the opinion there, but in effect was unnecessary and unwise in the facts of the case, and the dissent said that no arrest until after the agents found other facts which would be probable cause.

Here we say that on both the majority opinion of the Court in Henry and on the dissent, here clearly that mere inquiry an identification by an officer as to who he is, in nowise constitutes an arrest and therefore that the arrest could not have taken place until after the contraband was visible and meant to that police officer of what it really was.

Now, --

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

Mr. Malcom Richard Wilkey: Yes.

Justice John M. Harlan: Is there any dispute in the record as to the point at which the officer drew his gun?

Mr. Malcom Richard Wilkey: There is --

Justice John M. Harlan: Is it clear?

Mr. Malcom Richard Wilkey: It's not clear.

And the reason it's not clear, Mr. Justice Harlan, is because everything took place in the period of one minute and the cab driver was obviously nervous and it is only his evidence which indicates in any way that the officer drew his gun until after the man was outside of the cab and the officer had his hands on him and he was resisting arrest.

All of the other evidence, the testimony of the two police officers, Beckmann and Grace showed that the officer had a badge in his left hand and a flashlight in the right until such a point after the contraband was identified.

Now, to sum up on the arrest, we say that there was a right to inquire of the petition in the cab.

No arrest was made or intended until after the officers saw a package which in all probability contained narcotics, and at this seeing the package plus the circumstances leading up to the inquiry did constitute probable cause for an arrest, and if the Court of Appeals there was a seizure in the sense known to the law, a probable cause to arrest and seizure too.

Now, on the second point --

Justice William O. Douglas: Before you leave that -- I'm just reading Evelyn's book on the criminal prosecution in England.

On page 82, I notice he says as of the British law, any form of physical restraint is an arrest.

If that was the test applied here, when would you say it took place?

Mr. Malcom Richard Wilkey: After petitioner alighted from the cab, if that would be the test here, after petitioner alighted --

Justice William O. Douglas: How about the -- how about the pulling of the gun on the cab drawer?

Mr. Malcom Richard Wilkey: I don't think the gun was pulled and I don't think that the facts established that it was pulled until after the officer was engaged in the struggle with the man and that that was the reason the gun was pulled.

Justice William O. Douglas: It came after that -- after you say that he is -- after he detained -- after he said, "You're under arrest", or after he decided to hold him.

Mr. Malcom Richard Wilkey: Yes.

It came at the time that he was grabbing hold of the man and the man was obviously resisting and pulling away.

Now, in all of those things happened rapid fast, but I think it is clear that there was no pulling of the gun until after the petitioner alighted from the cab.

There was no necessity of it.

The officer has testified that he identified himself and then the narcotics were dropped and after he saw the narcotics dropped, he reached for the door and the petitioner likewise started to get out.

Justice William O. Douglas: Well, of course the testimony of the taxi driver is a little different, I think as given on the page 8 of the petitioner's reply brief.

This testimony of this taxi driver in the case that Beckmann had his revolver gone prior to the time that you say he got out of the cab.

Mr. Malcom Richard Wilkey: Yes, it does.

The taxi -- I can only say that I think clearly it was impossible for the taxi cab driver to be right on that, that while he may have been try to recall things as best he could, that it was impossible on the other admitted and established facts as to what he had in his two hands a flashlight and a badge.

And that on page 23 of the record in the case, the petitioner's counsel admitted that the officer did not have the gun in his hands when he approached the cab and I think on all the facts that that's true and I think that certainly the District and all the evidence before it when it heard the testimony of the people.

Justice John M. Harlan: What was that reference that you gave to the statement of the petitioner's counsel?

You said he admitted he didn't have a gun.

Mr. Malcom Richard Wilkey: At the time he approached the cab, I believed that's true on the page 23.

Justice William O. Douglas: On page 23 he says, "He approached his gun in one hand and his badge in the other".

Mr. Malcom Richard Wilkey: Yes that's what he said, and then if you will Your Honor look at what the Court said correcting me with which petitioner's counsel agreed.

Now logically, as we have argued in our brief, the seizure here and the admission of evidence does not depend upon actually the lawfulness of the arrest, because the evidence here was contraband abandoned in a public cab and its seizure did not depend on establishing the arrest or probable cause for the arrest.

Now on that, we would rely on Mr. Justice Holmes' opinion in the Hester case cited in our brief.

In the Hester case, it was a prohibition -- a liquor case, there the prohibition agents in consequence of information, and by the way the record shows at page 21 of the record in that case that the only testimony as to information was one of the agent says, as the result of information, they grove to the vicinity of Hester's house.

They went there and they concealed themselves and they saw Hester come out of the house and hand another man a bottle.

There was an alarm given to somebody on the premises.

Hester took a gallon jug from an automobile standing nearby and both men ran away.

One of the officers pursued and fired a pistol.

Hester dropped the jug and the other man threw away the bottle.

They were found on retrieving by the officers to contain moonshine.

The officers had no warrant for search or for arrest when they were on the premises of Hester.

This Court through Mr. Justice Holmes in holding the evidence admissible found it unnecessary to decide whether the action of the officers which caused Hester to betray himself was legal saying at page 58 of the opinion.

It is obvious that even if there had been a trespass, the above testimony was not obtained by an illegal search or seizure.

The defendants own acts and those of his associates disclosed the jug, the jar, and the bottle.

And there was no seizure in the sense of the law when the officers examined the contents of each after it had been abandoned.

Now here, you'll have in the Hester case the officers being on the premises without warrant, observation a chase in the pursuit in which a pistol was fired and the moonshine was dropped.

And the Court held that there was an abandonment of contraband and there was no search and seizure which depended on the legality of any warrant or depended on the legality of any arrest.

I think that we can also draw an analogy from the Abel case decided yesterday in which items six and seven, which were left in the hotel room by Abel, were then picked up by the FBI after Abel had been taken away.

Abel, as I remember the facts, had rented that hotel room until later in the day but when he went with the agents, while they paid his bill with the desk and the hotel room was then reverted to the inn keeper.

And so there -- the -- I think the Court held in Abel that the admissibility of both items six and seven found by the agents after the arrest taken place, did not in anyway depend upon the validity of the arrest.

Justice Potter Stewart: When was this package picked up by the officer, does the record show?

Mr. Malcom Richard Wilkey: I -- while Officer Beckmann was in pursuit and it lasted for a period of over two blocks of the petitioner, the second officer leap from the cab.

Justice Potter Stewart: The policewoman picked it up, did she?

Mr. Malcom Richard Wilkey: The policewoman picked it up, yes.

Beckmann says --

Justice Potter Stewart: I suppose -- suppose the taxi fare have not yet been paid.

Mr. Malcom Richard Wilkey: I suppose so, I suppose that similar to Abel that Rios intended to reserve that cab until he reached his destination, but other events intervened, and Abel intended to reserve that room until I think the afternoon and the search I believe or the examination by the FBI was made before that time expired but Abel had left the premises and he had abandoned what was there.

I believed that was the holding of the Court in the Abel case.

That same principle was applied in 1954 in the Lee case from the District of Columbia where officers were interrogating two people in a car and asked them to get out of the car.

They got out and in so doing they dropped the stolen jewelry in the gutters and it was held there on the authority of the Hester case that there was no search and seizure as known to the law.

Now then I want to get to an examination -- by the way the trial court, the District Court rested his determination on both the abandonment of the contraband theory and on the fact that there was no arrest until after the petitioner alighted from the cab or after the discovery of the contraband which in his view constituted probable cause.

I want to make it clear that I think that the key time is the discovery of the contraband, not the time the petitioner alighted from the cab whenever it is, but I think that was subdued.

Now I want to get to the third point which involves as a possible adoption of this Court, the rule of exclusion on the federal courts as to evidence which is found by state officers.

I want to say at the outset that as I read the precedents involving this rule that's applied to federal officers.

Weeks, Center, Burdeau versus McDowell, which is not federal officers neither was Center, but the Weeks rule as -- that has involved federal officers for the good reason of the discipline of federal officers and it was felt that the exclusionary rule what implement the command of the Fourth Amendment not necessarily being required by the Fourth Amendment, but it would implement the Fourth Amendment and it would serve as a deterrent and it would be as applied to federal officers, be effective in enforcing compliance with the Fourth Amendment.

We submit to the Court that the reason for the exclusionary rule of Weeks as applied to federal officers does not apply, does -- does not follow where state officers or private individuals are concerned.

Even in the federal courts, this exclusionary rule has not been completely effective as witness the cases coming before this Court and the other Courts.

And I think that this Court and the other courts can note that there are significant differences perhaps among the federal agencies varying with their training as pre to core their methods of recruitment.

There are many factors involved in making the exclusionary rule work, which exclusion in Court is only one, but it does have a disciplinary effect on federal officers and there is a certain rough justice where the Federal Government is both the prosecutor and the federal officers are the ones who participate in the seizure in making the real effect to excluding the evidence.

They are, in Mr. Justice Frankfurter's phrase of yesterday, in the same household, and so it does have that effect.

Justice Hugo L. Black: Do you think that's the only reason on which it rests?

Mr. Malcom Richard Wilkey: I think that, that is the reason which has been articulated in the opinions of the Court as to the basis of the rule, Mr. Justice Black.

I am aware that in dissenting opinions as Mr. Justice Holmes and Brandeis that there has been another rule -- another reason that is to say that the Government should have no part of and should not adopt or ratify or have the benefit of in a dirty business.

But it is our position that the real reason for it is one of effectiveness, and that we must distinguish between the physical evidence itself and the actions of people over whom the Government has no control whatever in obtaining the evidence.

The evidence is probative trustworthy.

It's not the federal officers who are bringing the prosecution.

It is the organized society itself.

And there has to be, as many times said in the Court, weighing and the balancing of the laws in law enforcement by the exclusion and the gain in the enforcing the constitutional mandate and where the officers are federal or there's federal participation and there's force on degree of control, it is believed that that is effective.

But I think that while there is another reason for it, that other reason has not been adopted by the Court, and in fact I believe impliedly, it was rejected in the dissent, I think rejected in the dissents where the dissenters urged it and it was not applied in Wolf versus Colorado where it was left to the states to make their own rules and their own choices.

Justice Hugo L. Black: What do you think of the differences is that the reasons that underlie the exclusion of evidence obtained by unlawful search and the exclusion of evidence which is confession that a man has given outside the Court.

Mr. Malcom Richard Wilkey: Well, in the first place, Mr. Justice Black, a confession in itself that has been pressured is not trustworthy.

And the second good ground is that it shocks and offense our conscience and sensibilities to admit that.

I think that coerced confessions throughout the law had stood on a different ground from the question of illegal search and seizures.

And I think it's clear that there is a constitutional mandate and the question has always been and before this Court as to how best to implement the constitutional mandate.

In Weeks it said we will exclude --

Justice Hugo L. Black: Was that the ground on -- in the Boyd case?

You remember?

Mr. Malcom Richard Wilkey: Boyd involved -- Boyd actually involved the Fifth Amendment where there was a compelled confession in effect by the compelled production of records and the Court said that they would not count on outset.

Justice Hugo L. Black: They drew some -- found some similarities, I mean the reason that exclude that and the reason that excludes the confession and the other type of evidence that's been unlawfully obtained.

Mr. Malcom Richard Wilkey: Yes.

I would not deny that there is some similarity, but I think that the basic reason in each case is different.

The basic reason for excluding a coerced confession is it's untrustworthy.

Secondly --

Justice Hugo L. Black: Do you think that's the basic reason?

Mr. Malcom Richard Wilkey: Well, I won't put them one and two but that's a primary reason and the other is, the other reason is that -- that is so -- offends our sensibilities so that we will not tolerate from any source as the Rochin case in California, I think that stands on that ground.

But on the Fourth Amendment, I think that courts have been primarily concerned in the majority opinions of the Court.

The decisions of the Court have been concerned with the effectiveness as a sanction.

Now, I submit that the reason -- that the reason of a sanction and the reason about the certain rough justice in knocking out the Federal Government's evidence if the Federal Government was responsible for the wrong, and remember Mr. Justice Holmes in Silverthorne spoke of the Government's own wrong, we don't have that here.

Those -- both those reasons breakdown where state officers are concerned.

Justice Hugo L. Black: Well you're -- you're going on the basis that the wrongfulness in using evidence illegally obtained has nothing whatever to do with the ruling?

Mr. Malcom Richard Wilkey: I don't think that it is wrongful to use evidence illegally obtained, I think it is wrongful illegally to obtain evidence, and I think there's vast distinction between the two.

Justice Hugo L. Black: If -- if it's a mere question of a state, of a Court formulated rule, it would be there important, wasn't it as to whether one of the reasons founded the rule is that the Government should not use evidence in its own courts that was obtained in violation of the real purpose of the Constitution whether obtained by one officer or another assuming if that were true.

Mr. Malcom Richard Wilkey: Well, I think there are two things.

First of all, here we're dealing with state officers and I think that the majority of the Court -- the Court has held that the restriction of the Fourteenth Amendment on state officers is not exactly the same as the restriction on the Fourth, the Fourth Amendment on federal, that's one point on the constitutional command itself.

And the second point is that there is a choice of the method of enforcing the constitutional command, and that is what I want to argue before the Court now that the Court should not adopt a method of an exclusionary rule which everyone knows results in otherwise guilty people going free unless there is another benefit to society, in other words, that the rule of exclusion would be effective and improve the due administration with the enforcement of the law.

Justice Felix Frankfurter: Before you move on to that consideration, Mr. Wilkey, when we start to take into account I think in dealing with these considerations one that the Court should be pure, and I mean this, and two that the enforcement of law for society benefit should be affective without hampering something very offensive, that among the 50 states, there are various standards both in statute law and in decision of law as to what constitutes an illegality in an arrest or in a search, which that this Court decided yesterday that is a merely because warrant is based on hearsay doesn't render it illegal and insufficient under the requirements of the Fourth Amendment.

Now, state may hae a much higher standard than that, ultimate constitutional standard are not the last word of morality or delicacy of thinking, they are rather under minimize.

And so you may have state declaring warrants illegal way above the standard that would satisfy the Fourth Amendment, and it wouldn't have a general exclusionary rule of having evidence obtained through illegal steps by way of search or arrest may invalidate the introduction or render inadmissible the introduction of evidence which the federal court themselves in enforcing the Federal Constitution would not have been illegal.

There are considerations on both sides when you deal with such diversities of standards and requirements in law enforcement, as under our system of the distribution of political powers is presented as between the 50 states in the union.

Mr. Malcom Richard Wilkey: That's entirely correct in support of our position I believe, Mr. Justice Frankfurter.

And of course, the different States after thorough consideration of the Weeks rule or the rule of exclusion some have adopted and some have not and it seems that that is one that should be left to them and is.

And that the federal courts cannot concern themselves with the vagaries of either state law, the discipline of state officers, or even the actions of private individuals.

The petitioner in Elkins differs from the petitioner in Rios.

The petitioner in Elkins will ask this Court to adopt a rule which will exclude all evidence wrongfully obtained whether obtained by state officers or private individuals.

Now that not only would put the federal courts at the mercy of every state local policemen and magistrate but also every private detective throughout the country.

I -- petitioner in Elkins stated very frankly that that was his position and that to do -- to adopt such a rule, the Court would have to overrule the precedents of Weeks, Center and Burdeau versus McDowell.

And in regard to the precedent on this, I should like to point out that in Center, the action taken wrongfully I believe was state officers but in saying that that was not excluded the Court cited Burdeau versus McDowell, thus throwing state officers into the category of private individuals over along the Federal Government has no control.

Justice Felix Frankfurter: You're ordinary to deal at length -- to deal adequately with the proposed rule in the dissent of Burdeau against McDowell, namely, to make it a rule not of constitutional prohibition but of standard of evidence applicable to the federal courts.

Mr. Malcom Richard Wilkey: Well, I don't know if I'll deal adequately --

Justice Felix Frankfurter: You would deal with it.

Mr. Malcom Richard Wilkey: -- Mr. Justice Frankfurter, but I won't -- I might as well turn to that now.

It seemed --

Justice Hugo L. Black: Not as if we get to that as others.

I see you didn't cite the Feldman case.

Do you think that has no bearing on your case?

Feldman against the United States.

Mr. Malcom Richard Wilkey: We may not in Rios, Mr. Justice Black, but we did in Elkins --

Justice Hugo L. Black: You did.

Mr. Malcom Richard Wilkey: -- and I argued -- I mentioned that if in the argument in Elkins, yes.

Feldman helps us as far as the rationale of not allowing federal justice to be determined by state action of either laws or official over whom the Government has no control whenever

.It helps us in that regard.

It's analogous.

And I think I used that in argument along with the Abbate opinion -- argument.

It seems to me that aside from the disciplinary reason for the exclusionary rule as a flag to federal officers there are -- all of the other arguments the non-constitutional argument of the dissenters, Mr. Justice Brandeis and Holmes, those -- that this is dirty business that the courts must remain pure and have nothing to do with it that -- that all of those arguments are equally valid as was urged in the Burdeau case, whether a private individual is involved or whether state officers are involved.

And the possibilities of connivance, collusion, vast irregularities in the administration of federal justice are just enormous when we consider the possibilities that are opened up by seeing that the federal court, in some way, is responsible for the actions of private individuals, private detective agencies, local constables, local magistrates who air on the law as to what constitutes a valid warrant.

All of those things are equally valid arguments for private exclusion no matter who is guilty of the wrong.

And that federal justice simply cannot be dependent upon those things.

And I think that for a court to hold that to adopt the position of the petitioner in these two cases would be to overrule all the precedent of Weeks and Center and Burdeau versus McDowell and also to overrule the rationale of Wolf itself.

The -- I also want to say that the -- it seems to me the application of the exclusionary rule in federal court should not differ between the states as to whether the states has an exclusionary rule or not, that we must have the same standard in (Voice Overlap).

Justice Hugo L. Black: When you say must not by any -- you say must have the same standards.

Not by any requirement of logic or compulsion but as a matter of policy I gather.

Mr. Malcom Richard Wilkey: As a matter of policy, yes.

Now it seems that in considering the application of this exclusionary rule there you got assume two set different situations.

Take the case of an intentional violation of the Fourteenth Amendment.

Well, if it's a warrant situation, here you have a state magistrate passing on it.

The educational requirements of state magistrates vary and you have irregular results, the country over and you have to postulate if you have an intentional violation.

You have to postulate either the ignorance or connivance of state magistrate in obtaining the testimony.

Then if you postulate an intentional violation in a no warrant situation, here you must have in a split second operation like the seizure in Rios.

You must have a policeman making a careful analysis of the situation and saying to himself that under California law, I couldn't get it in the State Court but I can get it in in the federal court and so, I'll grab it and finally have a federal prosecution.

Now those things just don't take place.

So I think that on the practicalities of the thing that an exclusionary rule in the feral court would be ineffective if you assume an intentional violation whether it's a warrant or not a warrant.

Now, if you assumed an unintentional violation, you make federal justice dependent on the errors not only of every local police officer but also on the legal wisdom of the local magistrate throughout the country when seeking a warrant.

Now if -- of course intentional violation assumes no fault at anytime, whatever is using this evidence than the federal court.

And so, it seemed in a practical way.

If the discipline of the state exclusionary rule itself, as they have in California, will not improve the discipline of state police, a federal exclusionary rule will have no effect -- further effect whatever.

Take this case of Rios for example.

California has a rule of exclusion.

They adopted it in the Cahan case.

Now, would Officer Beckmann had acted differently here if he had been aware that the federal courts would have an exclusionary rule like California.

I submit that no hours of training time or instruction for Officer Beckmann or any other state officers would be aided by the fact that the state -- that the federal court also have an exclusionary rule in regard to the actions of state officers.

Justice Felix Frankfurter: Well there's nothing in the record to suggest that Officer Beckmann didn't -- that he have the right to do, a legal right to do what he did, is there?

Mr. Malcom Richard Wilkey: Absolutely nothing.

The record I think shows that he acted in good faith and acted as any trained police officer under the circumstances would have acted.

I can't conceive of him acting differently.

Justice Felix Frankfurter: I'm not suggesting that that's inclusive.

You suggest that there is a great deal of difference between the circumstances of this case and the Burdeau case in which Mr. Justice Brandeis said what he said about shocking in common indecency because that was a case of theft of outright thievery and the stolen goods being handed over to a special assistant to the Attorney General of the United States by him to be used in the fourth coming trial, and the proceeding was not the admissibility but as you know the proceeding to make defense, there he was defense he was a high officer, a high legal officer of the Federal Government.

The recipient had concededly stolen goods and that the issue was to return of those stolen goods to the true owner.

And the defense was that we want to keep this because we want to use them in the trial.

It was in that setting -- that Justice Holmes and Justice Brandeis sent it and was shock and said this ought to be returned.

Mr. Malcom Richard Wilkey: Well --

Justice Felix Frankfurter: It's an interesting fact that the terms of the dissent are not very generally pertained to this particular case.

The thing starts out to have his private property stolen, in fact the truck was suspended.

Mr. Malcom Richard Wilkey: Well, Mr. Justice Frankfurter your point --

Justice Felix Frankfurter: I'm thinking that they didn't mean that's specifically done with the general rule.

Mr. Malcom Richard Wilkey: You pointed out much more adequately than I could.

The distinction between that particular -- the facts of that particular case and the rule laid down there and the facts of the Rios and Elkins case, where in Rios it is contraband could never be lawfully posses by any private individual and in Elkins where the tapes were instruments of crime, the fruits of crime and then place in sort judicial limbo and would not be returned to their owner.

That is a far different situation from the private papers involved in the Burdeau case, and the rule might conceivably be different but here in Rios and Elkins we're confronted with the actions of state officers in one case with the warrant and another case acting on the fact situation that would impel I think, any officer to act the same way.

Justice John M. Harlan: You were arguing in your brief tentatively for a qualified rule of admittance, namely, that where you got a Rochin type seizure, you may want to use that expression that there you might have an exclusionary rule?

Mr. Malcom Richard Wilkey: Yes Mr. Justice Harlan.

Justice John M. Harlan: Is that a -- which you're putting to the Court from the Government's point of view which you advocate.

Mr. Malcom Richard Wilkey: We're advocating first Your Honor that in this case and in Elkins, certainly the facts show --

Justice John M. Harlan: Yes.

Mr. Malcom Richard Wilkey: -- the silver platter doctrine should be upheld and no exclusionary rule should be adopted and then in mentioning those (Voice Overlap) --

Justice John M. Harlan: Under either view -- under either view of your -- under either view of the problem either under qualified rule -- qualified rule of admittance or a none qualified rule of admittance.

Mr. Malcom Richard Wilkey: Right.

And we mentioned -- we made that argument, that alternative argument to show the Court that it's not confronted with hard and fast alternatives here and that as in the Burdeau case, as mentioned by Mr. Justice Frankfurter, there are intermediary positions and that the Court does not have to adopt the Weeks, an iron clad Weeks rule and it doesn't have to -- in this case adopt the silver platter rule for this, all other cases, that there is a intermediary position which would depend on the circumstances similar to that in the Burdeau case.

We are here primarily that on the facts of this case, in Rios, there was a lawful taking of the contraband that there was no arrest until such time as the contraband had been identified and therefore there was probable cause.

Justice John M. Harlan: I understand that.

Mr. Malcom Richard Wilkey: And then if --

Justice John M. Harlan: What I'm assuming that the Court, this pure assumption of the Court reaches the silver platter rule in both cases, that's the question I'm putting into this as to what kind of an exclusionary rule or absence in that exclusionary rule are you recommending.

Mr. Malcom Richard Wilkey: We would urge that it would be very unwise to adopt the rigid exclusionary rule of the type of Weeks and we pointed out the alternative to show that there is more than one alternative before the Court on which I can sustain each of these convictions.

Justice John M. Harlan: Your primary position is that there should be no exclusionary rule, I believe.

Mr. Malcom Richard Wilkey: Right.

The Wolf versus Colorado position, that's our primary position.

And for the reason of this, the effectiveness of it -- I -- I think about the position of state officers, there's no incentive for them to conform to a federal rule any more than they have for their own state rule.

The training orientation of state officers both enforcement and judicial towards state law, what is a magistrate going to do if the -- this Court should adopt the exclusionary rule of Weeks as applied to state officers.

He's going probably to do the same thing he does now lay that affidavit and that warrant beside his code, his state code and he has formed both because are -- it is assumed in these cases that come up that there is no federal participation and there is only an intent for a state prosecution.

And so that's all the law enforcement officers and the magistrate is going to be concerned with.

Then think of the training of local police.

Some have none whatever.

Think of the caliber men that are recruited that varies widely.

Think of the legal acumen of the local magistrates, because for instance in Elkins, this was not only the error of a deputy sherif, it was the error of the District Attorney if it wasn't error of his chief assistant and of the magistrate on Thursday night reversed on Monday morning.

So an adoption of the Weeks rule would make federal justice dependent on all these varying factors and would not be effective in improving the training of state officers and making the compliance with the constitutional standards more of a reality.

Unless the Court has further questions, I rest the Government's case here.

Chief Justice Earl Warren: Mr. Grossman.

Argument of Harvey M. Grossman

Mr. Harvey M. Grossman: The Court please, in the time remaining few additional points.

First of all, we submit an answer to a query as to why the federal court should -- why this Court should not accept findings of -- so-called findings of the lower court, the fact that first as it's been indicated there were no findings in any sense of the term mere conclusions for the District Court.

Secondly, this is not merely a case where two courts were involved but three and perhaps two of the three took one view that at least the state court took a different view and this certainly raises questions and they raised -- those questions are particularly serious in light of the fact that first the stories, we submit, a reading of the record reveals beyond question that Officer Beckmann changed his story in several particular as he testified quite differently as to the sequence of opening the door, a very important fact in the state court than he did in the federal court.

There were important versions here and differences and these aren't indifferences between defendants and plaintiff's story, these are differences in stories the Government presented with the stamp on arrestee presumably.

Certainly the Government can't come in here and say the cab driver, when he testified to the revolver incident after the Government put him on as a witness, is one of the Government is going to try to impeach now because they were putting on someone who wasn't going to tell the truth nor can the Government say that Mr. Forno who was counseled for the defendant in the state court proceedings knew more about what transpired there than the witnesses present.

In short, we submit this is a case where the record on the state of facts is such that examination by this Court is warranted and called for and that one other fact.

The Chief, Mr. Chief Justice Warren raised the question as to restrictions and cross-examination.

We've looked a little more carefully than the Government perhaps because we find several instances for example on pages 84 to 85 of the record, the state court -- the Federal District Court Judge announced the very restrictive rule of cross-examination stating that all that could be done was to raid the inconsistent statement into the record and that nothing further could be done because that's the limit of impeachment under his view.

We submit it's an erroneous view and it's unfortunate that he thus limited examination as to a key issue in the case.

At that point, we were trying to show the inconsistency in the prior statements as to the sequence of events of opening the door and so forth.

There are other instances when we attempted to get into the question with federal participations, as the Government mentioned they were restricted.

Again, we were restricted in our cross-examination on page 65 when we asked Officer Beckmann what's his intent.

Was he intending a search and seizure?

Justice Hugo L. Black: What page?

Mr. Harvey M. Grossman: Page 65.

And the Government objected on the ground that matters of intent were irrelevant and therefore the Court sustained the objection and that was the end of that.

In short, there were various instances where we did not have a full opportunity to present all of the cross-examination in the federal court and this should be considered in judging the federal court's determination or its approach of the adequacy of its determination.

Now with reference to the Henry case, we submit, that if the petitioner had endeavoured to drive off and Officer Beckmann approached with the avowed purpose of investigating narcotics to see if defendant had narcotics in his possession, obviously, whether with -- with we they call a revolver or what the Government counsel refers to as a flashlight, most certainly he would have taken forceful means of stopping the defendant, so the defendant was at that point under restraint.

And further, Officer Beckmann made a formal arrest prior to the time he ever actually had any real opportunity to examine the narcotics because that was after defendant alighted from the cab, he was grabbed by the arm again.

The driver says also grabbed while inside the cab and told that he was under arrest, only then, that the police actually bothered to take the trouble to look at the material in question.

Now, insofar as the question of adopting a rule by this Court is concerned, first of all, there was we submit federal participation here not at the time of the search and seizure, but when the federal prosecution used this evidence in question.

When the federal courts permitted a prosecution to be sustained on the basis of this evidence, at that point we think, the federal courts should properly have evoked an exclusionary rule, an exclusionary rule pattern not on the basis of the flexible standard the Government suggests but rather on the same basis as the exclusionary rule for federal officers.

After all California has found that rule the only means of deterring unlawful searches and seizures by its officers -- its officers, so of 20 other states so of the federal courts.

And we submit that interest of state policy required a different result seems rather far fetched, nor cannot be said if we accept the Government's change in emphasis from page 55 of its brief where it said the disciplinary effect is the key item here saying other elements of the exclusionary rule at precedent.

Even if we accept this to be the fact, we submit that the same considerations applying for adoption of the exclusionary rule for the federal courts, likewise apply here.

After all if office -- let's consider Officer Beckmann is going to do next time he seize the cab and let's assume the lack of probable cause.

Perhaps he wasn't aware of the silver platter doctrine when he seized the evidence in question but he didn't stop at the state courts, he took the evidence to the federal courts.

And if this Court holds that that's perfectly proper, one can well wonder what Officer Beckmann is going to do the next time he seize the taxi cab.

Is he really going to worry about the exclusionary rule or constitutional problems if only he has to do was go across the street to the federal court house and introduce his evidence and get the prosecution brought to a conclusion just the way he wants it?

Justice Felix Frankfurter: What you're suggesting is he would have consciously clouding the rule of the State the Conroe which had been announced and pronounced only years three before.

He didn't care about violating the law of the state but he could then drove to the federal court and has immunity, is that the case?

Mr. Harvey M. Grossman: No, what I --

Justice Felix Frankfurter: That was implied because the Supreme Court of California is addicted in illegal use?

Mr. Harvey M. Grossman: What I am saying Mr. Justice Frankfurter is this.

Regardless of what Officer Beckmann's intent was at the time of the cross-examination as to that was restricted, at the present time, he still an officer of Los Angels police force and I'm sure he's going to be quite aware as to all the other officers on the various state police forces of what type of rule this Court lays down.

And if this Court lays down a principle under which a conviction he's obtained under these circumstances is sustained, I can hardly doubt that Officer Beckmann, the next time he's confronted with the situation of this sort, is going to take the silver platter doctrine very much into account, so of his fellow officers.

Justice Felix Frankfurter: Not if he thinks what he's doing was legal and get the reconstructive interpretation that there was some legal warrant showed at the requirements, because concededly if this -- I don't -- while that examined the record, he did not recite this notion that what he did here wasn't according to lawyer.

Mr. Harvey M. Grossman: Well, if the Court please, if in fact, he believes at that time that lack of probable cause is not the criteria but there is some lesser standard, he certainly isn't going to operate on a probable cause standard if that's not the standard that the federal court applies in determining whether the evidence is admissible.

Justice Felix Frankfurter: But he thought he had a probable cause that's the point.

Mr. Harvey M. Grossman: But --

Justice Felix Frankfurter: And I'm trying to --

Mr. Harvey M. Grossman: We don't doubt that the average officer in the state in the federal courts, although we can't read their minds, perhaps in some instances believe they have probable cause, perhaps this thought never enters their minds.

But the important thing is that the question of probable cause, under our system, is something for the courts to determine not for the officers to have a final determination on.

And if a police officer -- officer believes that all you need for probable cause for example is the fact that a defendant has a certain colored hair or a certain colored stand is he to be able to say the he operated in good faith, because this, according to his view, was probable cause or is the Court going to say, "No, regardless of what you believe, we establish the standard of --

Justice Felix Frankfurter: That isn't --

Mr. Harvey M. Grossman: -- probable cause".

Justice Felix Frankfurter: -- that -- that isn't the suggestion that I want you to make.

My suggestion was not that the policeman should determine what probable cause is but you were making the argument that the existence to withdraw the silver platter doctrine would have a deterrent effect on the police.

And my suggestion is you don't deter people from doing something that they think is right.

Mr. Harvey M. Grossman: Well, in answer to that, Mr. Justice Frankfurter, it is our position that to deter -- that police officers as California feels, other states, and as the federal courts felt in adopting the Weeks' principle are deterred if they feel that, by granting evidence illegally or without lack -- with lack of probable cause, if they feel that in doing so, they're getting evidence that will not be admitted.

We submit that to that extent, and that is certainly a basic cornerstone of the exclusionary rule, to that extent, they will take such matters into account in the future or else we submit that the entire theory of the exclusionary rule in the Weeks case is being called into question.

We think that's been a sound rule in California practice, may I say in conclusion, as evidenced in our brief reveals that since the adoption of the exclusionary rule in California, in the Cahan case, there's been a marked improvement in standards and we think that if the federal court -- if the federal police agencies are encouraged to assist the states in this effort by knowing that federal prosecutions would be interfered with this if they don't, that even further progress can be made.

And we submit that that is the type of rule which this Court should encourage and that we submit is the reason for adopting the rule of evidence which we have proposed here.

Chief Justice Earl Warren: Mr. Grossman, before you take your seat, on behalf of the Court I should like to thank you for what you have done in -- in defending this indigent defendant.

As I understand it, the District Court appointed you to carry the matter through to the Court of Appeals and then to -- to this Court in order to -- to see that in your judgment, justice was done.

The Court is always comforted when it knows that lawyers will undertake burdens of that kind without compensation or just because of their brief in the cause of justice.

So, we -- we thank you very much for your earnest enabled presentation.

And Mr. Wilkey, may I --

Mr. Harvey M. Grossman: Thank you, Mr. Chief Justice.

Chief Justice Earl Warren: -- may the Court thank you also for your earnest enabled presentation of the cause of the Government.

Rebuttal of Malcom Richard Wilkey

Mr. Malcom Richard Wilkey: Thank you, Mr. Chief Justice.

Chief Justice Earl Warren: Thank you both.