CLINTON v. VIRGINIA
Term:
- 1960-1969
Facts of the Case
None
Question
None
Conclusion
Decision: 8 votes for Clinton, 1 vote(s) against
Legal provision:
Legal provision:
None
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Transcript:
Argument of Calvin H. Childress
Chief Justice Earl Warren: Number 294, Catherine Clinton, Petitioner, versus Virginia.
Mr. Childress.
Mr. Calvin H. Childress: Mr. Chief Justice and may it please the Court.
The nature of this case is an alleged unreasonable search and seizure by means of an electronic listening device.
The issues here are whether a city police officer have used an electronic listening device stuck into a party wall and this enabled him to hear everything that went on in the adjoining efficiency apartment occupied by the petitioner, constituted an unreasonable search and seizure.
In addition to this issue, the respondent had raised four questions before this Court.
He has suggested that although this search took place for three days before the arrest of the petitioner that the search was valid as incident to a legal arrest.
He selected that -- suggested that because the petitioner was suspected of running an illegal place that she forfeited her rights under the Fourth Amendment and he's also suggested that evidence obtained by electronic means should not be completely excluded, which point the petitioner does not state and he also asked this Court to review all the evidence if it finds there was -- the evidence found by the police officer was improper and find that there was other sufficient evidence to find the accused guilty.
This is sort of a harmless error doctrine.
The issue as to the unreasonable search and seizure by the electronic listening device, the trial court and the Commonwealth of Virginia are not required to write a written opinion and just rule that it was a proper search and seizure by -- and let the evidence in.
The Supreme Court of Appeals of Virginia held that there was not a showing of a physical trespass by this spike.
The spike was just stuck in the wall.
And therefore, that it was not an unreasonable search and seizure distinguishing it from the -- the Silverman case and holding under the Goldman case.
Chief Justice Earl Warren: Is there any rec -- anything in the record, Mr. Childress, that will show us just what kind of an instrument this -- this is and just to what extent it -- it was -- that that's at the wall?
Mr. Calvin H. Childress: Yes, sir.
At page 31, Police Officer Bates (ph), who used it, suggest -- said that he had a device that would amplify sound so that you could hear it in the other room.
And then he asked -- he was asked, "Was it a spike device?"
He said, "Yes, sir, a small device."
And then on cross examination, he was asked whether it was driven in the wall and he said, "No, sir."
“And was it stuck in the wall?"
"It was stuck in the wall."
This is the evidence as to how this spike device was used.
Chief Justice Earl Warren: That's all the evidence --
Mr. Calvin H. Childress: Yes, Your Honor.
Chief Justice Earl Warren: -- from the record?
There's nothing to show to what extent it was stuck in the wall?
Mr. Calvin H. Childress: No -- no, Your Honor.
There's no evidence to show how --
Chief Justice Earl Warren: I noticed that the -- that the Court of Appeals referred to it as attached to the walls, somewhat, they said, thumbtack would do it.
Is there --
Mr. Calvin H. Childress: Yes, the -- this was a supposition --
Chief Justice Earl Warren: Is that --
Mr. Calvin H. Childress: -- of the Court of Appeals of Virginia.
Chief Justice Earl Warren: Yes.
Mr. Calvin H. Childress: There was no evidence as to that use.
Chief Justice Earl Warren: There's no evidence as to --
Mr. Calvin H. Childress: It said, if the evidence was that it was stuck in the wall -- not -- not driven in.
Justice Potter Stewart: I was reading on the record last night and if there were -- there's just a slight discussion of it on direct examination and a little bit more on cross examination.
Mr. Calvin H. Childress: That -- that is correct.
Justice Potter Stewart: Do you remember the pages on which the --
Mr. Calvin H. Childress: Page 31 --
Justice Potter Stewart: (Voice Overlap)
Mr. Calvin H. Childress: -- of the record is where -- was in the -- Police Officer Bates (ph) first started
Justice Potter Stewart: Yes, where it begins, Mr. (Inaudible) is there -- at the -- or the bottom of page 31.
Mr. Calvin H. Childress: Yes, sir, Your Honor.
Justice Potter Stewart: And then over through --
Mr. Calvin H. Childress: Through --
Justice Potter Stewart: The middle of 32?
Mr. Calvin H. Childress: Middle of 32.
Justice Potter Stewart: And then on cross examination (Voice Overlap) --
Mr. Calvin H. Childress: Cross examination that begins on page -- middle -- half or third of page 37.
Justice Potter Stewart: Thank you, I couldn't find it.
Thank you very much.
Mr. Calvin H. Childress: If the Court please, I submit this question of what constitutes unreasonable search and seizure should -- should be faced by the problems that we -- modern technology and invention have developed to our forefathers of -- who are present at the time of the beginning of the revolution.
The problem wasn't reasonably simple.
They merely broke in the hearths.
But now, we have this problem of the electronic eavesdropper.
This Court has cited the eavesdroppers, the volume by (Inaudible) and it's well aware of the large problems that electronic surveillance present nowadays.
We -- we have pointed out in the eavesdroppers, the volume, this question of a sonic wave flooding a room and bringing it back.
But I suggest to the Court that its decision in Silverman created a new standard as to what constituted an unreasonable search and seizure.
Before Silverman beginning with Olmstead, it was held Olmstead being a tapping the telephone line, that there had to be a physical trespass.
It constituted the unreasonable search and seizure.
It acquainted the actual physical trespass of the police officer into the premises of the petitioner with the unreasonable search and seizure.
This was adhered to in Goldman.
But in Silverman, with the case of the -- despite that it went in six to seven inches and made contact with the dock of the heating system and it appropriated the whole heating system of the adjoining building.
This Court said at two places that it didn't turn upon the technicalities of local trespass law.
Silverman case did not turn upon the niceties of local trespass on a party wall.
Principle was enunciated in Silverman, it was a case turned upon the -- the reality of an actual intrusion into a constitutionally protected area.
And if Your Honor please, I submit that's what we have here.
The section on tools and dash and open a sports book, the eavesdropper points out that a contact mic, a spike mic is use to get access into a room where you don't have a way to get in there, any other way.
And that despite by making contact with a stud allows you to get access to the room and hear what's going on.
Now, the respondent wrote, Professor Schwartz, a letter on that which appears in page 17 of his brief but I believe it proved too much.
Professor Schwartz emphasized there that walls have a dead air space between them.
And that this usually, this speaks to me as a layman, a sort of an insulated situation.
And the sounds don't come through this dead air space and Professor Schwartz said that "unless you have a spike mic that go through that, it's quite likely that no other microphone would also work."
That's -- now when -- but this -- this is the problem.
What constitutes unreasonable search and seizure?
I submit to the Court that as I read Silverman versus United States, it does set up this new standard of reality of an actual intrusion.
It doesn't speak of a physical intrusion.
And then under this new standard, that the search and seizure of the instant case is unreasonable.
I suggest that the Court should again reemphasize the standard.
It -- it is a standard that has meaning in our present day under our present day means of discovery.
And in -- in -- as Justice Brandeis said in his dissent in the Olmstead case, a discovery and invention can find means much greater than constriction on the rack to hearing or disclosing what was whispered in a closet.
And this is the situation that that we reached today.
Justice John M. Harlan: Does your -- does your position goes so far as to say that the constitutional matter of the use of all electronic devices should be (Inaudible)
Mr. Calvin H. Childress: No -- no, Your Honor, I don't.
My --
Justice John M. Harlan: Where do you --
Mr. Calvin H. Childress: -- position is --
Justice John M. Harlan: -- where do you draw the line?
Mr. Calvin H. Childress: When the electronic device intrudes into a constitutionally protected area and this would be the home, the house or the office.
Justice John M. Harlan: Well, I'm talking about the illegal --
Mr. Calvin H. Childress: (Inaudible)
Justice John M. Harlan: -- search and seizure doesn't fall into a constitutionally protected area.
Mr. Calvin H. Childress: Yes.
Now --
Justice John M. Harlan: Is it your position that constitutionally, all electronic devices are forbidden?
The use of --
Mr. Calvin H. Childress: If they are designed to and actually do intrude in -- into the house --
Justice John M. Harlan: But that's what they're used for so that --
Mr. Calvin H. Childress: Yes.
Justice John M. Harlan: So your -- your proposition does go that far.
Mr. Calvin H. Childress: Yes, Your Honor, I would find that insofar as it really affect the home of a host and are designed to and due -- in fact intrude into the house and there would be an unconstitutional search and seizure because the evil is the same.
The -- the design of these electronic listening devices are to invade the home.
To find out what's going on in there.
And whether the -- whether the spike is driven six inches in or stuck on the wall, or maybe be a foot away.
Justice John M. Harlan: Well, supposing -- wasn't the -- the spike wasn't used at all, they just found it here.The officers (Inaudible) when he said he was in the next room.
Mr. Calvin H. Childress: I submit, this is the problem that the Court --
Justice John M. Harlan: That's right --
Mr. Calvin H. Childress: -- has pointed out -- in -- in eavesdropping, the sonic wave questionnaire.
When I was a boy, I remember Flash Gordon go into the moon on a rocket ship, this was science fiction.
Now -- now we -- we have it as a matter of science.
But I believe the Court could properly interpret the Fourth Amendment, should allow for electronic devices which can completely intrude into a house and be able to grasp all the sounds and language that goes in there and bring it back to -- to the listener without any physical trespass.
Justice John M. Harlan: To what extent do you know, the States tried to deal with this by a statute within -- with the use of the -- you did a particular crimes or something of that kind to (Inaudible)?
Mr. Calvin H. Childress: To my knowledge, the Commonwealth of Virginia has no statute on this.
Justice John M. Harlan: You don't know about the other states?
Mr. Calvin H. Childress: On -- only there is a -- as I recall, in the eavesdroppers, I believe there is a compilation of states there.I -- I have not made a -- a collection on it.
Justice Potter Stewart: In this case, you need not go quite so far as you indicated.
You -- your position was an answer to Mr. Justice Harlan's question.
Indeed, you in other words, this case doesn't involve a -- an electronic device concealed on the person of somebody who is lawfully in the Constitution -- what the area which would otherwise be constitutionally protected at least such as On Lee or Lopez.
This doesn't --
Mr. Calvin H. Childress: No.
This isn't --
Justice Potter Stewart: This isn't that kind of a case, isn't it?
Mr. Calvin H. Childress: No sir, no, Your Honor.
This is a spike device stuck in a wall, not --
Justice Potter Stewart: Where it's completely unknown to the participants in the conversation in the other room if there's anybody unless the --
Mr. Calvin H. Childress: That -- that is correct.
Justice Potter Stewart: But by the same token, I suppose it could be argued, although you don't need to in this case that whether -- whether without an electronic device, today as a part of houses being built, many of them where they are, you don't' need an electronic device to overhear from one apartment and the other.
Mr. Calvin H. Childress: There -- there is that problem.
Justice Potter Stewart: And I suppose it could be claimed that that too would be a violation of -- for instance, the Fourth and Fourteenth Amendment rights if it were -- if it were done deliberately by police officers surreptitiously in an adjoining apartment.
Mr. Calvin H. Childress: No, I -- I would not say that and I would like to clarify this question of electronic listening devices.
The -- the On Lee of course was a transmitting device.
Justice Potter Stewart: Yes.
Mr. Calvin H. Childress: And the Lopez case was a recording device --
Justice Potter Stewart: Recording device, yes.
Mr. Calvin H. Childress: -- with which, I think are factually different from this type of device and I think --
Justice Potter Stewart: But both are different from this.
They're different from each other as well --
Mr. Calvin H. Childress: Yes.
Justice Potter Stewart: -- somewhat.
That they were both different from this --
Mr. Calvin H. Childress: And --
Justice Potter Stewart: -- because in both of those cases, there was somebody known to the defendant --
Mr. Calvin H. Childress: Right.
Justice Potter Stewart: -- and beyond the premises and with whom the defendant is carried on an unknowing conversation.
Mr. Calvin H. Childress: That -- that is correct, Your Honor.
And what the case where it -- you're in an apartment house, this is the -- a normal surveillance and if you can -- I believe if the police officer can hear what goes onto the next apartment, then this is a proper surveillance now under our constitutional standard.
Justice Potter Stewart: Well, I suppose these arguments you're making could have been made in -- back in the first pair of eyeglasses, spectacles were invented, does it?People to say, "Well, witnesses can testify to what they can see with their naked eye but with these new fangled things in the future, these eyeglasses, they can testify to everything they could see, only that way which I couldn't see and with their naked eye."
Mr. Calvin H. Childress: No, the same question arises.
I -- I don't think the same question arises because proper surveillance from outside is -- has always been -- been considered a proper police procedure.
And I have taken the objection to --
Justice Potter Stewart: (Inaudible) I mean the hearing aid, (Inaudible)
Mr. Calvin H. Childress: That is the longest -- this part increases his personal facilities, faculties, that -- I -- I see no objection to it.
But the distinction is that spy glasses, the hearing aid, or so forth are not designed to penetrate in through a -- a wall, penetrate into the -- the privacy of a person's home to protect against prying eyes and we do have a peeping tom statute in the State of Virginia.
You pull down to your window shade.
To protect it against a spike mic, Professor Schwartz in eavesdroppers say you have to fill the whole inside of the house with aluminum foil.
And I submit there is -- there is a considerable distinction there between helping the faculties by glasses or even an elect -- electric flashlight, as suggested by the -- the respondent.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Calvin H. Childress: I -- this --
Unknown Speaker: (Inaudible)
Mr. Calvin H. Childress: Yes, the witness -- the spike mic test -- testimony -- there is a fractional penetration and with the --
Unknown Speaker: Alright.
I thought --
Mr. Calvin H. Childress: -- the professional scientific test, writing of the eavesdroppers, this is what it's designed to do, the contact mic.
A contact mic is designed to penetrate through the --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Calvin H. Childress: But that is --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Calvin H. Childress: That -- this -- this is my main point, Your Honor.
Justice Tom C. Clark: I thought the opinion said it was the right to contact.
Mr. Calvin H. Childress: The Supreme Court of Appeals said it could have been like of some -- some of type.
But this was not the record.
This was a supposition of the Supreme Court of Appeals and Commonwealth of Virginia.
The record was that it was stuck in the wall.
Justice Tom C. Clark: Suppose it was just held there, wasn't any spike or anything?
The policeman just held it against the wall, would that evidence be legal?
Mr. Calvin H. Childress: I -- I submit to the Court that as I reads -- read Silverman where the test -- the new test being one of this -- reality of an actual intrusion, if it shown that that device is a kind that can reach through the walls, then -- then there would be a -- an unreasonable search and seizure.
Justice Tom C. Clark: Although there's no spike or anything.
Mr. Calvin H. Childress: I -- I --
Justice John M. Harlan: Which Silverman didn't go quite that far.
In -- in Silverman, it said, "While there may not have been a technical trespass through the party wall.
(Inaudible) it was positioned in the next room in such a way that it utilized the (Inaudible) the next house, the house to be searched.
Mr. Calvin H. Childress: This --
Justice John M. Harlan: And to that extent, there was a intrusion into the privacy of the next house.
Mr. Calvin H. Childress: Yes, Your Honor but still --
Justice John M. Harlan: Isn't that right?
Mr. Calvin H. Childress: They're still -- they're still deviated from the previous test of the necessity of a physical trespass.
Justice John M. Harlan: That's correct.
I see.
Justice Potter Stewart: Well, there was a case called Hester where there was a physical trespass, an actual trespass on somebody's land where they said it was not a violation of the Fourth Amendment.
So I'm not sure that trespass of the -- or its absence has ever been the -- the only test.
In other words, even prior to Silverman, that's all I'm suggesting.
Mr. Calvin H. Childress: Well that --
Justice Tom C. Clark: (Inaudible) in Silverman but I thought that there, the spike gets (Inaudible) which created an area of sounding board which amplified the sound and shout it into the other room.
Here, according to the Supreme Court of Appeals, well, you have a thumb tack operation, for all I know the thumb tack just -- was put in to hold this machine against the wall.
Mr. Calvin H. Childress: No, I -- I agree with --
Justice Tom C. Clark: You have no evidence that there was a spike.
Mr. Calvin H. Childress: Mr. Justice, Silverman was a great deal more gross and more repulsive than the instant --
Justice Tom C. Clark: Yes.
Mr. Calvin H. Childress: -- instant case.
There is no question whether --
Justice Tom C. Clark: But for me, there still has to be some sort of a trespass, some kind of penetration.
I think the very prospects of each -- this kind of penetration into the wall of the other room, I would say that -- well, I -- getting at -- you never -- that the rights were not introduced into evidence or anything, was it?
Mr. Calvin H. Childress: Is not -- there was not a -- trial counsel did not -- did not have a (Voice Overlap) --
Justice Tom C. Clark: Did you try the case?
Mr. Calvin H. Childress: I did not try it, Your Honor.
Chief Justice Earl Warren: Mr. Childress, did the Supreme Court of Appeals of Virginia have before it any evidence concerning the -- the way this thing was attached to the wall other than what we have in the record?
Mr. Calvin H. Childress: No, Your Honor.
It had exactly what -- what we have --
Chief Justice Earl Warren: Yes.
Mr. Calvin H. Childress: -- here.
Justice Tom C. Clark: What was the argument?
Was there any argument of counsel perhaps a -- I was thinking in terms of -- I think on Silverman or something in the argument, its just what the device was.
Mr. Calvin H. Childress: The argument of counsel --
Justice Potter Stewart: (Inaudible) the actual device.
Mr. Calvin H. Childress: The argument of counsel -- there are -- I did argue it there and I did argue that -- that there was a penetration here as shown by the record of a party wall, of a device designed to penetrate electronically.
And that this was under the Silverman decision and unreasonable search and seizure.
Justice Tom C. Clark: Did the counsel tell the Court what happened (Inaudible) it was?
Mr. Calvin H. Childress: Neither -- as I understand it, neither counsel on appeal had ever seen the device.
Justice Potter Stewart: The Silverman case, as Mr. Justice Clark have suggested, we -- counsel had in -- here in this courtroom, the actual device.
I have in my office (Inaudible)
I remember 12.
Mr. Calvin H. Childress: I -- we -- I did not have the device and of course, in -- in Silverman, there was a -- the opportunity to develop how this was -- was utilized.
It --
Justice William J. Brennan: Well, Mr. Childress, at 31, which it refers to says spike device, just a small device.
This spike device, in any sense, a work of art in this business?
Mr. Calvin H. Childress: If -- if they show at hand definition that is attached to this microphone, I believe the Silverman case, both of a spike device.
Justice William J. Brennan: Well as Mr. Justice Stewart said, we have the actual device and run along -- well, I don't know how long it was.
There was a spike obviously been used to a circuit.
The device at the end of it was a -- was a hearing device.
What I'm wondering is, is this a -- in that expression spike device, is that suppose to give us a picture of something like that?
Mr. Calvin H. Childress: I -- yes, sir.
I would suggest that it would, that there would be the spike on the end designed to -- to penetrate into the wall.
Justice William J. Brennan: Do you recall -- or do you know whether -- even counsel at the trial mention the Silverman case?
Mr. Calvin H. Childress: At trial, the trial counsel did object to it on the grounds of the Fourth Amendment.
He did not mention, as I recall the record, the Silverman case by name but he did erred a dozen objection that this was an unreasonable search and seizure on the basis of the Fourth Amendment.
Justice William J. Brennan: Well, we can't suppose that the use by this Court of the expression spike device in Silverman necessarily was -- before them in -- at the trial.
You can't suppose that, is that it?
Mr. Calvin H. Childress: No.
If -- we do have the police officer's testimony on page 21 that the device right above the question of spike device, the sentence says in the last clause, "I had a device that would amplify the sound so that you can hear it in the other room."
Justice Potter Stewart: At page 39, the defense counsel in a motion to the strike evidence in the middle paragraph of the page there, "He does talk".
He says, Officer Bates (ph) admittedly was -- obtained the evidence of Officer Bates (ph), obtained in part by a listening device which was stuck into the wall, according to the decision of the Supreme Court of United States, it was an unlawful search and seizure.
So when he asked, the Court strike that evidence.
I suppose that's the -- the merits became to --
Mr. Calvin H. Childress: But this is the merest reference to Silverman as I read the record.
If the Court --
Unknown Speaker: (Inaudible)
Mr. Calvin H. Childress: -- please -- in my brief, I do ask the Court to -- it defines that to be -- as I read Silverman.
But it that does not present this new test of an actual physical intrusion to overrule Olmstead which originally set forth this test of an actual physical trespass to constitute a -- an unreasonable search and seizure.
I admit to the Court that Olmstead is advanced with other cases in this Court particularly the Boyd case which was --
Unknown Speaker: (Inaudible)
Mr. Calvin H. Childress: -- which involved the Custom's laws.
And if the District Attorney filed an affidavit suggesting an invoice, what -- what was on it if the defendant didn't turn it up then it was presumed to have admitted it.
Now, this of course did not involve a physical trespass.
In Gouled versus United States was an Army officer and a friend of his came into his office and surreptitiously took a piece of evidence.
And again, this was not a physical trespass.
I suggest that under the -- to meet the needs of the present day discovery of invention that Olmstead should be reversed if it has not already been limited by Silverman.
I would -- if the Court please I would like to reserve the remaining few minutes for rebuttal (Inaudible)
Chief Justice Earl Warren: You may do Mr. -- Mr. Childress.
Mr. Tyler.
Argument of D. Gardiner Tyler
Mr. D. Gardiner Tyler: If it Please the Court.
We maintain here the fair state -- there was no physical invasion or inclusion of -- at least in obtaining the evidence objected to and sought to be excluded.
And secondly, there was no unreasonable search as condemned by the Fourth Amendment.
And thirdly, the evidence complained of did not contribute to the conviction of the defendant.
Oh, to understand the case, I would think it would necessarily give you some point of background as to what -- why the officers were in the apartment.
This thing, I'm making a (Inaudible) a quasi criminal to suggest -- it kind of hurts me because they're not.
In other words, the officers there, to do their duty.
Now, the duty of the officers there was to watch the apartment, put the woman under surveillance by the law of a police department.
Now, the -- the evidence is amply clear here that she had -- that -- of a reputation in the community, what she was doing now for years and years and the officer in the surveillance appears they -- he didn't get into car at all.
He stayed in asleep in this car and watching the apartment.
What did he observe?
Observed the parents of the defendant there, with her husband from time to time and they tried to kill men and women, the young women and men.
It added to the -- in another feature, they found that the -- the apartment was rented by the defendant in a false name, in other words, in another name.
They didn't disclose their real name.
So honestly, from the very beginning, the -- what the officers knew there, this woman was operating this house of prostitution and that was the purpose of renting the apartment.
She lived elsewhere in Norfolk.
She maintained a whole (Inaudible).
And she used -- and she rented this apartment for the sole purpose of operating a house of prostitution.
Now, it's come to the Honorable Court to relieve them the responsibility of that crime.
Your Honor, if it please Your Honor, the police department violated the provisions of the Fourth Amendment and they get around it like this.
This thing, that certain evidence obtained by the police officer should be excluded.
Now, I think the Court should -- should have some idea what that evidence was.
Was it material?
Didn't have anything to do with the -- the account on which she was found guilty?
Now, she was -- she would -- this woman was charged in the indictment, two counts.
One count was the -- count number one was a violation of Section 208 or 18.228 of the code which makes it unlawful to obtain money from a prostitute.
A female engaged in the occupation of prostitution.
The other count was pleasing a female in a house of prostitution.
Separate sections of the code of Virginia, separate crimes.
And the one in which she was found guilty was the one that according to the determination made by the Supreme Court of Appeals was that statute that makes it unlawful for a person to obtain money from a prostitute.
Share in this -- no question about the -- of the guilt there.
The -- the reason that -- the -- that the termination was made by the Court of Appeals on -- in that and this isn't the -- the penalty proscribed.
The jury gave her a $500 fine and five years in -- in the penitentiary.
The -- of the youth -- the penalty of both operating in the house of prostitution on the other hand, is a minimum fine of a $1000 and the -- I think a maximum 10-year imprisonment.
Obviously, she wasn't found guilty of that by the jury, affirmed by the trial court, affirmed by the Court of Appeals of Virginia.
The Court of Appeals of Virginia stated that in the -- in it -- in the -- in the record here.
There's no question about that.
So, we can hear -- that's found on -- that's found on pages 44 of the 40 -- 40 -- page 40.
They call -- Virginia says the jury found defendant guilty as charged under the first count and fixed her punishment to five years imprisonment and a fine of $500.
Now, the evidence sought to be excluded and I have put it on in -- in the brief here, the appendix of the brief.
And I have -- the evidence that was sought to be excluded was that this -- the conversations that this Officer Beach heard.
What did they amount to?
Did they amount to anything?
Did they show that this woman violated this -- the law by obtaining money from a prostitute?
And then the -- the indictment named the prostitute, Katherine R. Taylor.
Katherine R. Taylor isn't mentioned in the converse -- in the conversation or what's heard.
There's nothing mentioned in the conversations that the -- the woman, the defendant obtained money from a prostitute.
So there --
Chief Justice Earl Warren: And it wasn't of any value to why this was introduced.
Mr. D. Gardiner Tyler: But because she was charged with the other count Your Honor.
Chief Justice Earl Warren: Yes, yes.
Mr. D. Gardiner Tyler: The -- if that was the reason that it was tried in the trial court on two counts.
Justice Potter Stewart: But she was acquitted of the other count, the appellee?
Mr. D. Gardiner Tyler: It was a -- there was a general verdict.
The jury said, we so found -- it was an -- in general verdict and as you know, this Court has held a number of cases and there's enough -- there's a -- to the effect that where one count is good is no -- is not necessary to go into the other counts (Inaudible)
Justice Potter Stewart: That doesn't quite handle this situation, is it?
You're telling us that this evidence was probative only with respect to one count --
Mr. D. Gardiner Tyler: Yes sir.
Justice Potter Stewart: -- not -- not with the respect to both.
Now, your point would be a very valid one, it seems to me if -- if she had in fact been acquitted on the only count to which this evidence was probative then -- and no -- there'll be no damage then now to this defendant but -- when you can't tell on which count she was convicted.
I don't quite understand the points you're making.
Mr. D. Gardiner Tyler: Well, except -- except -- the jury found the -- the -- it -- it's determined -- it's determined by the -- the penalty assessed by the jury.
In other words, in order to find her guilty of the -- the operating of the border house or the house of prostitution, the minimum penalty would've -- have to -- been $1000 fine and a jail -- a sentence for a sum of up to $10,000.
Unknown Speaker: (Inaudible)
Mr. D. Gardiner Tyler: -- would have to be $10 fine.
That was the minimum, you see, a fare -- the $10 fine was a minimum.
So obviously -- the jury did not -- in -- in asserting the fine, $100 fine, did not assess the -- did not find her guilty of the other.
Chief Justice Earl Warren: But they gave the --
Mr. D. Gardiner Tyler: It couldn't be argued.
Chief Justice Earl Warren: But they gave the defendant five years in the penitentiary, didn't they?
Mr. D. Gardiner Tyler: Yes, sir.
And that is -- that -- that also provided for in this section that makes it unlawful to -- to obtain money from a prostitute.
Unknown Speaker: (Inaudible)
Mr. D. Gardiner Tyler: The statutes are -- I'll set forth the statute in the appendix in the brief, you can just glance over it if you want to see that winning goal, and finally what they really say, I have summarized it for you.
For be there as it may, I -- I want to talk about the -- if you -- the -- that is what this issue is whether the evidence should be excluded.
That's what -- that's the motion that was made to the trial court and that's the motion that was -- that was determined by the Court of Appeals as invalid.
Now, going to the -- the other -- the other -- this position that is really taken here by the appellant, the evidence doesn't sustain this position.
He -- he says that the -- there was a -- there was an intrusion here of trespass committed or an unlawful search by means of this device spike.
But whatever it was, that the -- the -- as the -- as the Court understands now, the -- the mic wasn't described, or the instrument wasn't described in a way it always just to (Inaudible) -- it was -- it was stated that it was a small device used to pick up these conversations.
And I --
Chief Justice Earl Warren: He went a little farther than that, didn't he?
He said, "Yes, it was a spike mic."
Didn't he?
Mr. D. Gardiner Tyler: He didn't -- he didn't use the term spike.
I would put into his -- into it -- into a -- notify the -- the attorney -- the attorney representatives or was this --
Chief Justice Earl Warren: Yes.
But he was -- he was asked if it was a spike -- a spike mic and he said, yes.
Mr. D. Gardiner Tyler: Yes, a small device.
Chief Justice Earl Warren: A small device --
Mr. D. Gardiner Tyler: That's right.
That's right.
Chief Justice Earl Warren: Didn't he?
Mr. D. Gardiner Tyler: Yes, sir.
But, I don't see how you're going to infer from that that it was the same -- the same characteristics that the spike might have in the -- in the Silverman case.
Unknown Speaker: (Inaudible)
Mr. D. Gardiner Tyler: Yes, in fact that one is.
Unknown Speaker: (Inaudible)
Mr. D. Gardiner Tyler: No sir.
Unknown Speaker: (Inaudible)
Mr. D. Gardiner Tyler: No, sir because it -- you'd have to show -- the evidence would have to show that the -- the spike went -- and factually in -- into the -- into the premises of the -- of the defendant.
That's what the Court is talking about there.
The fraction of the instant means a physical fraction of an instance because the Court very clearly in the -- in the Silverman case, used this language.
For a fair reading of the record in this case, shows that the eavesdropping was accomplished by means of unauthorized physical penetration into the premises occupied by petitioner.
And the turnover to the -- you can see the concurring opinion by Mr. Justice Clark and Mr. Justice Whittaker.
They say this, "In view of the determination by the majority that the unauthorized physical penetration into the petitioner's premises constitutes sufficient trespass to remove this case of the coverage of errant decisions, we've -- we are obliged to join in the Court's opinion.
And what else did -- and after that case, this Court in the -- in the Lopez case last June, mind you, used this language to the Lopez case, didn't have a -- it didn't have a spike mic but it had a little, a little device in the pocket of a detective, they picked up the sound while he was there interviewing this man.
Now, what did the Lopez case state?
See, I --
Chief Justice Earl Warren: Mr. Tyler, did you ever see this device?
Mr. D. Gardiner Tyler: No sir.
I did not.
Chief Justice Earl Warren: Is it available so that the Court could see it?
Mr. D. Gardiner Tyler: I -- I assume it could be if the Commonwealth of Virginia is present here in -- in the Court here, he could tell you better than I could.
Chief Justice Earl Warren: What if counsel would agree that we could see it?
Is it available?
Mr. D. Gardiner Tyler: I don't --
Rebuttal of Calvin H. Childress
Mr. Calvin H. Childress: I would be delighted to send it up here, if possible.
Chief Justice Earl Warren: Would you?
Would you Mr. --
Rebuttal of D. Gardiner Tyler
Mr. D. Gardiner Tyler: I don't think I could agree with anything else (Inaudible) -- I mean I like to do it.
I would like to do it.
Chief Justice Earl Warren: I beg your pardon?
Mr. D. Gardiner Tyler: I would like to do it but I -- I just can't.
I can't agree to -- to permit that --
Chief Justice Earl Warren: Very well.
Mr. D. Gardiner Tyler: -- that the thing out of the record, I mean that's all -- is the -- we -- we have to -- we have to stand -- draw a line somewhere or maybe some -- or the things in the -- not in the record but if the Commonwealth would like to put into --
Chief Justice Earl Warren: Well, that seems to be so vital if it was a spike mic.
And it was -- the spike was injected into the wall, it would come very, very close to -- to Silverman.
On the other hand, if as the Court of Appeals inferred that it was nothing more than something like a thumbtack that would keep it from falling from the wall.
It might be differentiated.
So I -- I don't think it would be unreasonable if it's available to determine what the true fact is by counsel agreeing to show it to us, (Voice Overlap) --
Mr. D. Gardiner Tyler: But if he will -- well, if --
Chief Justice Earl Warren: If you don't wish the court --
Mr. D. Gardiner Tyler: If the --
Chief Justice Earl Warren: -- had (Inaudible)
Because he has no right (Voice Overlap) --
Mr. D. Gardiner Tyler: (Inaudible)
Chief Justice Earl Warren: We have no right to insist on it, of course.
It isn't in the record, that's true.
Mr. D. Gardiner Tyler: Well, wouldn't it be on a -- when -- when you have to have other evidence besides that little -- if you want, (Inaudible).
Wouldn't you have to have the -- a description of the wall.
How -- I don't think it was the wall?
Was it -- was it six inches or was it a foot or was it 10 feet.
In other words --
Chief Justice Earl Warren: (Inaudible)
Mr. D. Gardiner Tyler: That would be very material, we're talking about the spike.
If the spike was just inches long, three inches, and the wall was more than that.
You --
Chief Justice Earl Warren: Yes.
Mr. D. Gardiner Tyler: -- one -- one could go through them.
Chief Justice Earl Warren: But I think -- I -- I think Mr. Tyler, one of the things that -- that bother us here, some of us anyway is the fact that the officer said it was a spike mic.
He answered yes.
He said a small device.
Now, the Court of Appeals translated that into the fact that it was nothing more than a thumbtack on the wall.
Mr. D. Gardiner Tyler: Yes, sir.
Chief Justice Earl Warren: You tell us and counsel tell us that the Court never saw it, and knows no more about it -- about it than -- than we do.
And we don't know whether it was a thumbtack arrangement or -- or a spike mic as the -- as the officer said it.
And it might be of some interest to us if it -- if it was here, that's all but (Voice Overlap) --
Mr. D. Gardiner Tyler: Well, I (Inaudible) --
Chief Justice Earl Warren: (Inaudible)
Mr. D. Gardiner Tyler: I won't let -- well, I'll ask -- to comply to the Court's request in the (Voice Overlap) --
Chief Justice Earl Warren: (Inaudible)
Mr. D. Gardiner Tyler: (Inaudible), but I do think we only have the description of the wall at the same time as --
Justice Tom C. Clark: By the judge of the court?
Mr. D. Gardiner Tyler: No, I didn't.
Nobody saw it.
Justice Tom C. Clark: See the evidence?
Mr. D. Gardiner Tyler: The -- no, no --
Justice Tom C. Clark: The trial court?
Mr. D. Gardiner Tyler: No, the -- the evidence is -- no one has seen it.
The judge -- the judge had the same thing that you -- that the Court has here.
There's nothing --
Justice Tom C. Clark: (Inaudible)
Mr. D. Gardiner Tyler: Because there's --
Justice Tom C. Clark: The petition in that first (Inaudible)
(Inaudible) the court -- the court must have (Inaudible) this burden I suppose if there was a (Inaudible) penetrate the wall.
But I'd like to know is what's the penalty is under the first count, what's the penalty in the -- there are two different statues of --
Mr. D. Gardiner Tyler: Yes.
Two different --
Justice Tom C. Clark: (Inaudible) their penalty was of the first count?
Mr. D. Gardiner Tyler: Well that --
Justice Tom C. Clark: The minimum penalty --
Mr. D. Gardiner Tyler: The -- the first -- the first count -- the first count was this.
From page -- on --
Justice Tom C. Clark: On the record the court was -- I just wonder what it say?
Justice Potter Stewart: Of course on the first -- on the numbered page of your appendix in --
Justice Tom C. Clark: Well I --
Justice Potter Stewart: -- your brief?
Mr. D. Gardiner Tyler: They'd be punished by a fine not less than $1000.
Not less than $1000 and by confinement in the penitentiary of not less than one year or more than 10 years.
That was the one that -- that was the second count.
Now, the -- the count that she was found guilty of, in other words, that obtaining a money from a prostitute, it said this.
She'll be con -- confined in the penitentiary of not less than one year or more than 10 years and fine not more than $500.
(Inaudible)
It -- I want to say this, there's been a -- a privilege to be before this Honorable Court, I want to thank you for the consideration extended and its been an honor to represent my State of -- State of Virginia.
Chief Justice Earl Warren: Mr. Childress.
Rebuttal of Calvin H. Childress
Mr. Calvin H. Childress: Your Honor.
I would like to point out Your Honors the question of the evidence relating to the offense.
This Court in a Faye decision said if it weren't -- the question was not whether there was other evidence sufficient to convict but whether the evidence was contributed to the conviction and the evidence found by the spike mic did actually contribute to this conviction, related to sounds of prostitution.
It related that a man came in to the next apartment and said that he want a woman in his apartment and Catherine Clinton, the petitioner, says, "I'll send one to you."
Now, this I submit is where a material and does go to the question of whether she was a -- pondering in this case whether she took money without a -- with consideration.
This is the question because we had here Katherine Taylor, the main prosecution witness who admitted to previous prostitution and admitted that she was living illicitly with a man during this time.
And the question was whether she had moved up in the ranks of the working girl to the rank of management for which case Katherine Clinton would not have been guilty of this offense.
And as to the evidence -- as to the spike mic Your Honor, fortunately, I'll be happy -- the counsel would agree to have it send up here.
The policeman did say it was a spike device and it was stuck in the wall and enabled him to hear sounds in the other room.
Thank you.
Chief Justice Earl Warren: We'll recess -- adjourn now.
Cite this Page
CLINTON v. VIRGINIA. The Oyez Project at IIT Chicago-Kent College of Law. 28 April 2013. <http://www.oyez.org/cases/1960-1969/1963/1963_294>.
CLINTON v. VIRGINIA, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1960-1969/1963/1963_294 (last visited April 28, 2013).
"CLINTON v. VIRGINIA," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 28, 2013, http://www.oyez.org/cases/1960-1969/1963/1963_294.