AGUILAR v. TEXAS

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Argument of Clyde W. Woody

Chief Justice Earl Warren: Number 548, Nick Alford Aguilar, Petitioner, versus Texas.

Mr. Woody.

Mr. Clyde W. Woody: Mr. Chief Justice, may it please the Court.

This is a case involving the application of the Mapp, Giordenello and Ker decision from this Court, the application of the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States as they apply in criminal proceedings in the state court.

The facts briefly are this.

Nick Aguilar was arrested by virtue of a combination of search and arrest warrant on January the 8th, 1960.

This was a combined federal and state undertaking.

There were two federal officers present and participated in the search and the arrest.

There were also about six state officers who also participated in the arrest and search.

According to the State's evidence, the two police officers, on or about January the 8th, 1960, received what they described in court as reliable information from a credible source, that Nick Aguilar would have some heroin in his possession at his -- at his home.

They went to Judge Regan who was Justice of Harris County.

They piped out a -- an affidavit and a search warrant prior to going to Judge -- Justice Regan.

Justice Regan executed the affidavit.

He took the affidavit and executed the -- or gave them the search warrant.

They proceeded to Aguilar's home out in Houston.

There, they knocked on the door.

There was conflict in the evidence as to whether or not they said they were police officers.

They did, however, -- one -- one of the officers said, "We knocked on the door.

We heard some activity inside."

They made a forced entry and acting pursuant to the arrest portion of the warrant.

They run through the home and collared, and the defendant took him into custody in the bathroom where they said they found that he was attempting to flush the contraband down the commode.

They recovered it.

This was the extent of the evidence introduced in the case.

The defendant was tried the first time in February of 1960.

The case was reversed in the Court of Criminal Appeals.

He was tried the second time in 1962, I believe it was, in the state court in June of 1962.

A motion for rehearing was filed latter.

Then in July the 3rd, a second motion for rehearing was filed in November of 1962 or rather it was overruled in November of 1962.

In the meantime, the federal authorities had also indicted him.

And in January of 1962, he was put to trial for the same offense in federal court.

However, that issue is not before this Court because he was acquitted in the federal court but he was not sentenced.

He was convicted in September, if I -- my recollection serve me correctly, and he was not sentenced until the following January.

In the meantime, the federal prosecution was about to begin on January the 22nd.

Our main complaint here and we -- we complained in the trial court that this particular affidavit and warrant wherein derogation of the Fourth and Fifth and Fourteenth Amendments of the Constitution of the United States.

We did not to get any real consideration from the trial court.

His remarks concerning the federal standard are on page 21 of the record.

He -- I apprised him of the decision of Mapp versus Ohio from this Court and he said, "Counsel, will you give me some cases from the Court of Criminal Appeals on this matter?"

And this was the extent of his concern over these federal issues.

Now, we -- he -- the Court indicated that he was not familiar with Mapp and I tendered the decision to him and I was summarily overruled.

Justice Potter Stewart: Where are you in the record?

Mr. Clyde W. Woody: I'm sorry, Your Honor, it's --

Justice Potter Stewart: You've told us, I just didn't hear you.

Mr. Clyde W. Woody: Page 21 of the record.

Justice Potter Stewart: Thank you.

Mr. Clyde W. Woody: Yes, Your Honor.

The federal issue was raised also when the defendant was attempt -- when the State attempted or the judge attempted to sentence him.

And again, at great length, we went into this issue of whether or not this affidavit satisfied the requirements of the federal standard and whether or not, this was, in fact, a writ of assistance.

And I submit to the Court that this is, in fact, a writ of assistance that was condemned as far back as Entick versus Carrington.

And if the Court will look at the search warrant and particularly the arrest warrant, and I'd like to, if I may, read the arrest portion of it.

Now, this is a combined arrest -- search arrest warrant.

And that the arrest warrant says this, "And you are hereby further commanded to arrest the said Nick Alford Aguilar, a Mexican male, and others unknown to the affiants, the persons accused of the unlawful sale and equipment."

Justice William O. Douglas: What are you reading?

Mr. Clyde W. Woody: This is the -- this is the search warrant.

It's on page 24, I believe, in the record, Your Honor, page 24 to 26, the affidavit and the search warrant.

Now, it is our position that --

Justice Arthur J. Goldberg: (Inaudible) the search warrant there.

Where is the arrest?

Mr. Clyde W. Woody: The arrest warrant is on page 24 of the record.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Clyde W. Woody: The -- it is in the -- it is in the search warrant, Your Honor, on page 26.

This is a combined -- Texas has a rather unusual procedure --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Clyde W. Woody: -- Mr. Justice Goldberg.

They have a combined document and the first part of it is denominated as an affidavit and the second part in the -- a search and arrest warrant.

Justice Arthur J. Goldberg: What was on page 26 --

Mr. Clyde W. Woody: 26 is the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Clyde W. Woody: It is our position that the affidavit here does not comply and does not conform to Giordenello versus United States that this Court considered in 1958 and the -- there is no statement of the essential facts in the affidavit and in the search warrant to give the Justice of the Peace jurisdiction to issue the warrant in question.

Now, the -- the extent of the probable cause and the facts alleged are these, and this is on page 24 of the record, that after the formal portions of the affidavit, it -- this is the building house or place of Nick Alford Aguilar, a Mexican male, and other person or persons unknown to the affiants by name but then they are descriptions.

Now, the -- this portion here that give the name, your full name or describe the person accurately or state if unknown, is just a -- another part of the printed affidavit that is used in Texas, is a place where we have reason to believe and do believe that said party so occupying and using as a private residence, he said building house or place, has it -- in his possession therein narcotic drugs as that term is defined below.

And contrary to the provisions of the law and for the purpose on the -- of the unlawful sale thereof and where said narcotic drugs are unlawfully sold, that on or about the 8th day of January, 1960.

Now, may it please the Court, this is the printed portion of all of the affidavits.

Now, starting here is the particular facts that are alleged where the State contends it's -- that it satisfies the federal standard.

The -- the affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for this purpose of sale and use contrary to the provisions of the law.

We submit to Your Honors that this is particularly, this is a general affidavit.

The search warrant and the arrest warrant incorporate the affidavit by reference.

This gives the citizens no protection.

It does not protect the right of privacy and incidentally in Texas, we must by statute follow the Federal Constitution, the Constitution of the United States and the laws of the United States.

And in the opinion, Judge Morrison in -- on rehearing, candidly admits this.

He says, "Yes, we are bound by statute to follow the Constitution and laws of the United States.

Texas is unique in this respect.

We have the greatest protection so far as the statutes are concerned but I don't think that -- I don't think we have any real protection when it comes to the right of privacy because we are not even allowed under our procedure to inquire as to who these nameless, faceless, unidentified informers are.

We -- the officer himself makes the determination of probable --

Justice Byron R. White: (Inaudible)

Mr. Clyde W. Woody: No, Your Honor, we would not.

He would not comply with the federal standard.

Justice Byron R. White: (Inaudible)

Mr. Clyde W. Woody: Yes, Your Honor.

Justice Byron R. White: (Inaudible)

Mr. Clyde W. Woody: That's what the State contends, Your Honor, but I --

Justice Byron R. White: (Inaudible)

Mr. Clyde W. Woody: Yes, Your Honor.

Justice Byron R. White: It would -- it -- (Inaudible) two reasons, could they have any other reason for believing that (Inaudible)

Mr. Clyde W. Woody: Well, Your Honor, they must judge it by the four corners of the affidavit and they might have had other reasons but we were not allowed to go into it to develop it because in Texas, you are not allowed to go in to the sufficiency of the affidavit unlike the --

Justice Byron R. White: (Inaudible)

Mr. Clyde W. Woody: Under the -- under the State's -- under the State's argument, it would be.

But --

Justice Byron R. White: (Inaudible)

Mr. Clyde W. Woody: I don't -- under the -- under Article 725b which is the -- which is a modification of Uniform Narcotic Drug Act, it possibly might be sufficient.

Certainly, our Court of Criminal Appeals would not hold it so because they held back in 1927 in Chapman versus the State that a -- an affidavit on information and belief alone is insufficient to justify the issuance of the search --

Justice Byron R. White: When an -- when an officer makes (Inaudible) -- an officer makes a make an affidavit knowing what the law is that affidavit must be on personal knowledge (Inaudible) assume that he had -- that he might well said, "I had personal knowledge with the narcotics (Inaudible)

Mr. Clyde W. Woody: Your Honor, I think -- I don't know why they don't do it.

The main reason that they don't do it, I submit, is because they don't have any such personal knowledge.

And --

Justice Byron R. White: What was that case that you had (Inaudible)

Mr. Clyde W. Woody: Chapman versus the State Your Honor.

It's in -- it isn't cited in my brief.

It's 296 Southwest at page 1095.

It is the case that -- and there's another one but its way back.

It's a 1912 case Landa versus Obert.

I don't -- I've forgotten the style of that one however, Your Honor.

But here, we -- we have the Court of Criminal Appeals absolutely agreeing with us and agreeing with this Court that they must follow the dictates of this Court.

They must follow -- they must follow the Constitution and laws of the United States.

In Article 727a of the Code of Criminal Procedure, and I'd like to read it to the Court because it is unique, but it is not followed probably at least, the Court of Criminal Appeals has been mistaken as to what probable cause and statement of facts to justify the issuance of a search warrant or an arrest warrant or under the federal standard.

Here is the statute.

No evidence obtained by an officer or other person, in violation of any provision of the Constitution or laws of the United States or of this State, shall be admitted in evidence against the accused on the trial of any criminal case.

Surely, and the last time this was amended was in 1953 as a result of the case of Schwartz versus Texas where it -- the issue was whether or not it was a violation of the laws of the United States for interception -- wired intercept on the telephone.

Justice William J. Brennan: (Inaudible) construction of that statute include the federal rules of criminal procedure --

Mr. Clyde W. Woody: No, Your Honor.

Justice William J. Brennan: -- the law as in --

Mr. Clyde W. Woody: The -- the only thing -- the only construction of this statute is this.

That almost immediately after this Court decided Jones versus United States.

That was only 28th of March, 1961.On the 27th of April, 1961, the Court of Criminal Appeals in a unanimous decision held that Jones was not controlling in Texas.

So you cannot reconcile the decisions from the Court of Criminal Appeals with this procedural article other than to say, "Well, they're overlooking."

Justice William J. Brennan: Well, I take it though that -- does that represents the construction of that article or it concluded by that construction --

Mr. Clyde W. Woody: Oh, you are -- I submit --

Justice William J. Brennan: -- as a matter of state law?

Mr. Clyde W. Woody: I submit, Your Honor, that you may well be -- you may be precluded so far as this particular article is concerned, although they -- they say in this very opinion here that they are bound by the decisions of this Court and they readily admit that they are bound by the -- by the Constitution and laws of the United States and they're bound to follow them.

But they don't follow them.

They don't follow them because they -- because they do not give a realistic consideration of the substantive and procedural aspects of the Fourth and Fifth and Fourteenth Amendments of the Constitution of the United States.

Now, it may have -- they -- they have given the same construction for years and I submit until this Court does something about it, they will continue.

Now, this -- the way our procedure is in Texas.

This particular procedure here where you allow the State to give a mere conclusion that they have received from a unnamed and unidentified person information of what, it doesn't -- they don't have to tell you.

You go into court and you -- you may not go into the affidavit.

You may not go behind the affidavit.

You may not show there have been such cases as the Hernandez case which we cite in our brief, where the Court of Criminal Appeal have before them the facts that the -- the affiants have sworn falsely to the affidavit and they say, "No, you may not go behind the affidavit to test the sufficiency of the affidavit.

You are precluded under our statutes from doing that."

Now, I submit that under Giordenello and Mapp and Ker that we certainly should -- the Court should take a very close look at these affidavits and require the States to follow them religiously due to the fact that the procedural obstacles involved by the particular states preclude the individual defendants or the people aggrieved, the persons aggrieved by the execution of this process of raising the federal questions at all or litigating the federal questions and this Court should take a very careful look at this affidavit and search warrant and declare them to be wholly inadequate when measured by the federal standard.

You cannot distinguish this affidavit and this search warrant from Giordenello.

And there is only one member of the Court, I believe, present who dissented and that's Mr. Justice Clark in Giordenello and the remainder of the present Court, I submit, who were on the bench at that time, I submit that they are -- if you will look at this, you will find that this affidavit is identical with Giordenello.

I know -- I'm pretty familiar with Giordenello.

I tried Giordenello in the trial court in the Circuit.

One of my associates tried it here.

But you cannot distinguish this case, this affidavit from Giordenello.

There are many other cases that you can't distinguish this from either.

Many federal cases -- many cases from this Court that you cannot distinguish it from.

Justice Potter Stewart: Didn't Giordenello largely involved in the construction of the rules of criminal procedure, the Federal Rules of Criminal Procedure Rules 3 and 4 and 5?

Mr. Clyde W. Woody: Well, Your Honor, it -- it's Giordenello -- actually they -- there was -- you -- the Court alluded to Rule 3 and 4 and actually was discussed Rule 4 more than anything else.

Justice Potter Stewart: Yes.

Mr. Clyde W. Woody: But he said -- the Court said in Giordenello, that it was based on the implementing statutes, the Federal Rule of Criminal Procedure, which certainly implement the Fourth and Fifth Amendments.

Justice Potter Stewart: Yes.

Mr. Clyde W. Woody: I don't think we can separate those two.

Justice Potter Stewart: Well, the Fourth Amendment says one thing and Rule 3 and 4 implement the Fourth Amendment.

That is to say there was certainly constitutional power to promulgate those rules.

There is no question on that but the -- but wasn't Giordenello decided under the rules rather that under the words of the Fourth Amendment --

Mr. Clyde W. Woody: Well, Your Honor, I submit --

Justice Potter Stewart: -- the requirement of the Fourth Amendment.

Mr. Clyde W. Woody: -- I submit that without the procedural devices of Rule 3 and 4, the substance of the Fourth and Fifth Amendment could not be effected and that is as a matter of fact, that has been the interpretation of the federal rules and the federal rules are federal statutes.

So where this Court might have some -- might have to pass on that issue in other States.

You will not have to pass on it where Texas is concerned because as -- as many of the courts have held, the Federal Rules of Criminal Procedures are not mere procedural statutes.

These are or these are statutes.

Justice Arthur J. Goldberg: Well, the statute may go beyond what the constitutional (Inaudible) in terms of affection for a defendant.

Mr. Clyde W. Woody: Yes, Your Honor, but I don't think there are any cases that -- that would suggest that Rule 3 or 4 go beyond the rights guaranteed by the Fourth and Fifth Amendments.

If there are, I am not familiar with them.

I submit to Your Honor that Rule 3 and 4 only is a vehicle, a device whereby the rights guaranteed by the Fourth and Fifth Amendments maybe realized.

They do not go beyond that.

Justice Arthur J. Goldberg: (Inaudible) put those rules besides we will have to come to the same result under the constitutional (Inaudible)

Mr. Clyde W. Woody: Yes, Your Honor, (Voice Overlap) --

Justice Potter Stewart: You're not -- are you saying that the Federal Rules of Criminal Procedure, as a result of Mapp against Ohio and Ker against California, are -- are applicable to the State of Texas through the Fourteenth Amendment?

Mr. Clyde W. Woody: Your Honor, I submit that the end result of them are applicable to all the States through the Fourteenth Amendment or some similar -- or something similar.

Justice Potter Stewart: Rules 3 and 4.

Mr. Clyde W. Woody: Yes.

Justice Potter Stewart: You say Rules 3 and 4.

Mr. Clyde W. Woody: Yes, Your Honor.

Justice Potter Stewart: Federal Rules of civil -- of Criminal Procedure.

Mr. Clyde W. Woody: Not only 3 and 4, of course, we don't have to get into it but I -- 5 also, the prompt arraignment thing.

I think -- but I -- I think that they are applicable to the States or some -- the States must -- the States must have some provision whereby the -- the federally guaranteed rights maybe -- must be protected.

And we don't have it in Texas.

On the -- in the -- and I submit that under this decision from this -- from Court of Criminal Appeals in considering the procedural statute of the State of Texas, it is not necessary for you to decide whether or not you must apply them to all the States but so far as Texas is concerned, surely, then it is applicable to the State of Texas.

Justice Hugo L. Black: Why?

Why do say we could hold it applicable to the State of Texas and not the other States?

Mr. Clyde W. Woody: Because, Mr. Justice Black, the -- the state legislature of Texas has seemed fit to incorporate by reference --

Justice Hugo L. Black: That -- that's a state law however.

Mr. Clyde W. Woody: That is a state law and the -- and the Court of Criminal Appeals says "We are bound to follow the Constitution and laws of the United States," however, they say -- however, we disagree, we disagree that the -- the State -- the statement of facts in this -- in the search warrant or affidavit for the search warrant, we disagree that this does not satisfy the federal standard.

They do not say that they do not -- that they would not apply it, they just say that they have erroneously, it's my position, that they have erroneously construed the application of the Fourth Amendment as --

Justice Hugo L. Black: Well, that's a -- that's a little different with the other argument because (Inaudible) as I understood it, we must say that the Fourth Amendment applies and the Fourteenth requires the things of the State of Texas which does not require many other States, the Fourth Amendment itself.

Mr. Clyde W. Woody: No, Your -- I'm sorry.

If -- I didn't mean to suggest that.

It isn't the Fourth Amendment that requires it, it is the --

Justice Hugo L. Black: Fourth and Fourteenth or whatever it consist of what?

Mr. Clyde W. Woody: It is the procedural statute of the State of Texas that --

Justice Hugo L. Black: Well, that's a state law which we have to recognize that they (Inaudible)

Mr. Clyde W. Woody: Yes.

Justice Hugo L. Black: So you are saying that we are to enforce the state statute, different than the way the Supreme Court says it should be enforced.

Mr. Clyde W. Woody: No, Your Honor, I'm not suggesting that -- that you -- that you enforce this particular procedural statute because you don't -- you don't have to get to the constitutional basis though of whether or not Rule 3 and 4 are absolutely required by the Fourth and Fifth Amendment although I submit that they are.

Justice Byron R. White: Mr. Woody, let's assume that's an affidavit had read the (Inaudible) have received (Inaudible) have received information from an informer who has given reliable information of the facts that heroine is located at the certain premises.

Now, that would -- that -- that's (Inaudible) isn't it, of -- in this present (Inaudible)

Mr. Clyde W. Woody: Your Honor, you are getting -- there -- there are some cases that are very, very close to that and I submit that it is distinguishable.

The Rugendorf case, as a matter of fact, 316 F.2d.

This is just about the extreme that any court has held where the conclusions are sufficient and in that case, it was decided in April 1963 by the Seventh Circuit.

Paraphrasing the affidavit is this.

Agent Moore of the FBI swore that in -- an informer had furnished reliable information in the past, reported to the affiant that he had seen 80 fur garments in the defendant's base --

Justice Byron R. White: Well, that's a quite a bit different when he says he had seen it.

That's -- that's a personal -- personal knowledge or personal information.

And what if the -- what if the officer did said, "I received information from an informant, he's given a liable information in the past that there is heroin on the certain premises."

He doesn't say whether the informant saw it or heard it or what.

Mr. Clyde W. Woody: Your Honor, I -- I submit that under these circumstances, you are doing precisely what this Court would as since time one -- since Boyd versus United States said that you could -- should not do and that is that the officer -- the affidavit should state sufficient facts in order for the neutral and detached magistrate to make his determination of probable cause.

Now, if the officer tell -- tells the magistrate, "Now, I have information which I believe," and incidentally, that's exactly what happened if you will look at the offense report in this case.

That's exactly the information that he had in this case.

He said his offense, it's contrary to his sworn testimony but in this case, the -- the officer's information, and it's on page 10 and 11 and 61 and 62 of the record, and it says exactly that."

I receive information from a person," and he believed that this man had heroin in his house.

And then he goes on to say -- and based on that, I went and obtained a search warrant from the JP.

This is insufficient.

This does not state facts.

This only states conclusions.

This does not give the magistrate a sufficient statement of facts upon which he may predicate a finding of probable cause to issue the search warrant in question.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Clyde W. Woody: Under these circumstances, no, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Clyde W. Woody: Yes, Your Honor.

This is distinguishable incidentally from -- from Ker.

This is distinguishable from Draper because in -- in both of those cases, the -- in -- in Ker, the Court will recall that the -- the informant told them that -- or rather the -- the individual had both heroin and also in Ker, there was a great deal of evidence introduced without any objection.

Now, in -- in Mapp -- oh, excuse me, in Draper, another case of the search -- arrest without a warrant, there -- it was corroborated.

This was not the breaking in of his home.

This was not going there in -- at night time or in the late evening and ransacking his house and making a search.

They had some information which had proven to be credible and reliable in the past.

They went there.

They corroborated it.

In this case, they didn't have anything except a person who told them, "I believe that this man has heroin in his house."

Now, that is insufficient.

If -- if we are to -- if we are to delegate this nondelegatable duty to the police to determine probable cause, then the Fourth and Fifth Amendments has no -- has no meaning today.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Clyde W. Woody: Your Honor, I submit that --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Clyde W. Woody: No, Your Honor, I don't.

I don't think it has to -- it's the same and I -- I'm familiar with the cases that suggest that the test for a search warrant and arrest warrant should be identical, but I submit that there is a great deal of difference between arresting a man on the street, out in the open and going into his home and invading his right of privacy, of course, the other side of that argument is well, in the one hand, you invade his goods in -- in his home and the other, you take away his liberty.

But notwithstanding that, I think the greater -- there should be a greater showing of probable cause to search a man's home and merely to --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Clyde W. Woody: Well, I submit, Your Honor, that the -- the proper decisions so far as the search of a man's home is concerned, absent some extreme emergency should be a search warrant only.

And that is the only probable cause absent some very extreme emergency that would justify the search of his home.

Justice Byron R. White: But he would agree that if he had said in here -- based upon personal knowledge, I believe that.

Mr. Clyde W. Woody: No, Your Honor, I don't believe so.

I think that he would have -- I think he would have to state the facts.

Justice Byron R. White: But what if he said, "I saw"?

Mr. Clyde W. Woody: If he went to the Justice of Peace and said, "I saw the heroin there," then surely that's -- that is sufficient.

So long as he states facts in his affidavit, so that the -- so that you have the magistrate between the police and the citizens and so that the magistrate may make his own determination of probable cause then surely, but not, let it be own facts not conclusions and particularly where you can't question that conclusion.

Justice Byron R. White: What kind of -- I see in the record here that some, it's on page 22, there is some indication that the office setup is available between the first days of January.

What was -- that was inquired into the -- any further but what kind of surveillance is that?

Mr. Clyde W. Woody: Your Honor, that was on my bill of exception.

I was attempt in -- I was attempting to go into this proposition of the search warrant or the -- the affidavit for the search warrant and the information that he had.

Justice Byron R. White: Well, the State seems to rely to some extent upon the fact that there was surveillance, what if there must (Inaudible)

Mr. Clyde W. Woody: No, Your Honor, I -- it is not my understanding that they relied at all on surveillance because the -- they must judge the sufficiency of the affidavit from the affidavit itself.

Justice Byron R. White: I agree, I agree.

So this is all there is about the surveillance.

Mr. Clyde W. Woody: This is all.

And this was on my bill of exception.

You said the Court would -- did not even consider this.

In -- rather than have a -- an offer of proof in Texas, you have your bill of exception and develop your -- your statement of -- of -- under your bill.

And it was -- the Court of Criminal Appeals has held that we may not go into this and it was with an idea that preservation of my federal questions that I went into it to the extent that I did.

The bill of exception as such is not considered by the trial court.

It is only an -- it is only for the Court of Criminal Appeals to determine whether the trial court may -- committed an error.

Thank you very much.

Chief Justice Earl Warren: Mr. Dally.

Argument of Carl E. F. Dally

Mr. Carl E. F. Dally: Mr. Chief Justice, may it please the Court.

This Court on many occasions as stated in many of the cases in search and seizure that it is better to place the magistrate between the citizens and the officers who go out to make a search.

Of course, obviously in this case, that is precisely what was done.

Here, the officers, when they received the information, they did not embark upon a search of their own into a private residence.

They did not go roughshod through a man's house as it was done in the case of Mapp.

But what they did was to seek out a magistrate, the Justice of the Peace of Harris County, Texas and there, presented him the affidavit, which is in the record, and upon the binding of probable cause by him and referred to page 26 of the record, about the middle of the page, the justice in -- in the warrant says that, "I am satisfied that the grant exist and the probable cause is shown, and I believe in its existence, I do hereby find."

So we come to -- the Court in this case, where -- is not -- it wasn't an unbridled search, it was made with process.

Now, then the question, as I see it, is simply presented in this case.

The issue is, was a search warrant upon probable cause within the meaning of the constitutional provisions?

And that alone is what is before the Court.

I'd like to speak of the facts briefly.

After the officers received the search warrant in this case, they went immediately as it will be shown from the record, they went immediately to the premises of the petitioner.

And there, going to the front door, they knocked on the door -- someone answered from within, "Who is there?"

And the officers told him that they were police officers and that they had a search warrant in their possession.

No one answered the door and they heard some scuffling sounds within the house and sounded as if someone was starting to run.

One of the officers at that time pulled and opened the screen door and opened the inner door and two of the officers pursued the petitioner through two or three rooms of the house into the bathroom.

And there he threw a cellophane package into the commode and was flushing it.

One of the officers grappled with the man.

The other retrieved the cellophane package from which they took six packages of white powder which was later determined to be a high grade of heroin.

The petitioner was then indicted to Harris County Grand Jury and was soon brought to trial.

The first trial, he entered a plea of nolo contendere.

In that case, on appeal to the Court of Criminal Appeals was reversed and the reason would be that the plea of nolo contendere was one which had been made available to defendants very recently at the time the case was tried and the Court had not admonished the petitioner of his rights under that plea and that was the reason for its first reversal.

He received 20 years sentence in that case.

Coming back to the trial court, it soon tried again and their plea of not guilty -- on a plea of not guilty, punishment of 20 years was assessed.

The case was duly appealed to the Court of Criminal Appeals.

And although the case was not briefed and argued before the Court of Criminal Appeals on its original submission, the Court did consider the point which is an issue here.

Judge Belcher, writing the opinion for the Court, found that there were sufficient facts stated within the affidavit upon which -- which would show probable cause.

The appellant filed a motion for rehearing and in much more detailed discussion of this problem of probable search or probable cause and the unlawful search, which was asserted by the appellant, was made by Judge Morrison.

There, Judge Morrison discussed, and in light of Mapp versus Ohio, acknowledged that the Court of Criminal Appeals certainly, I don't think there's any question about it, but he said there wasn't any hesitancy of the duty to follow the rules of the Supreme Court of the United States citing cases there.

And there has been some discussion of Rule 727a of the Code of Criminal Procedure of Texas in what it means and how it affects this case.

It'd be my position here that it would -- would not affect this case.

The Court of Criminal Appeals -- it is a procedural statute.

The Court of Criminal Appeals had determined its application in Texas and I believe that this Court would be precluded for making a different determination insofar as that article is concerned.

Furthermore, there would be nothing -- should this case be decided upon the basis of 727a which Mr. Woody has indicated that he thinks could be done and then would make it applicable to Texas only perhaps.

There's nothing to prevent the legislature from changing that rule, should this Court decide to decide it on that basis.

And furthermore, as we've said, I doubt that -- that any different construction could be made even by the Court of Criminal Appeals of that particular statute.

Now, the petitioner here relies mainly upon the case of Giordenello versus United States which was decided in this Court in 1958.

It's my understanding of the case that it was decided upon the basis of Rules 3 and 4 of the Code of Criminal -- of the Federal Rules of Criminal Procedure.

Question has been asked as -- and there has been some discussion as to whether they include more than the Fourth and Fourteenth Amendment to the Constitution of the United States.

I would submit that there was no reason to have these rules if they did not add something to those constitutional provisions.

And certainly, I do not think it can be argued that Federal Rules of Criminal Procedure have any application to the state courts in their cases.

Now, this argument, of course, is made by analogy because I believe it would be Rule 41 (c) of the Federal Rules of Criminal Procedure which would apply where a search warrant is obtained rather than an arrest warrant, as it's provided for in articles -- in -- in Rules 3 and 4.

Justice Potter Stewart: Your Court of Criminal Appeals held, isn't it, in this case that it was not bound by, as I understood the Mapp against Ohio, it was not bound by Rule 41 (c) of the Federal Rules of Criminal Procedure --

Mr. Carl E. F. Dally: Yes, Your Honor.

Justice Potter Stewart: -- on the opinion on the --

Mr. Carl E. F. Dally: Yes, Your Honor --

Justice Potter Stewart: -- they knew it.

Mr. Carl E. F. Dally: They specifically held that.

It's on page 87, I believe.

Justice Potter Stewart: Yes or 88, right at the end, page 87 (Inaudible)

Mr. Carl E. F. Dally: They did so hold.

I have to turn to the page 24, I believe it is, where the search -- the affidavit for the search warrant is located.

There maybe some difficulty I think, it's been partially explained here that this is printed form or portions of it are printed forms in the affidavit and the warrant appear upon the same page.

We would say as it has been suggested already that what we said here that the affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics, narcotic paraphernalia are being kept, the above described premises for the purpose of sale and use contrary to the provisions of law that it's a shorthand rendition for saying that they -- when they say reliable information, that means from a reliable source or reliable person.

The term "credible person" means the same thing.

It would be -- I do not know how they could detail it.

If they did detail it and describe the person, I do not know how it would make a great deal of difference.

And as I've indicated, there is a disagreement between petitioner and the State in this case as to the application of the rules -- of Federal Rules and Criminal Procedure.

We think that the rules place a higher standard on federal prosecutions than would the constitutional provisions in and of themselves.

And as I've stated, I do not know why it would be necessary to have the rules if they did not do so.

Justice Potter Stewart: Again, I -- didn't your Court of Criminal Appeal implicitly agree with that when they -- when they said that the case of (Inaudible) against the United States from the Fourth Circuit if it's cited to them and that case, it was held that a warrant wasn't sufficient under 41 (c) and they implied that if 41 -- that 41 (c) imposed a higher standard in the Fourth Amendment standard.

Mr. Carl E. F. Dally: Yes, Your Honor, they specifically considered that particular federal rule in that portion that is 41 (c).

After a careful analysis of the cases from this Honorable Court, I have concluded that there's actually no case upon which the petitioner may rely or upon which would decide the precise issue that is before this Court.

And I think that, actually, that there is an area which this Court has not -- up to this time, has not actually covered because the Giordenello case, as I tried to indicate, I believe, does not cover this area.

It's specifically was a federal prosecution from the beginning.

So I think that -- that what this Court will find necessary to do in this case is to actually go into some new territory.

Now, the petitioners said here that hearsay is not sufficient to -- to establish probable cause.

We know that this contention has been held against him by the case of Draper and Jones and perhaps other cases which have held that hearsay is enough to establish probably cause.

Another question that has arisen, what is a standard?

Should there be any different standard between arrest without a warrant and one with a warrant, insofar as probable cause is concerned?

If anything it should require less to obtain search warrant and I think this Court has so indicated, I believe, in the case of Wong Sun, which was quite recently decided, that we cannot be more stringent with the requirements to obtain a search warrant than to embark upon a search on probable cause alone to -- so hold would be to encourage officers then not to obtain search warrants but to go ahead and embark upon their search and run rough -- roughshod over the citizen area immediately.

Now, there are many practical problems, I think, that will be involved in -- in the decision of this case, as it's been said that probable cause, as the name implies, you're dealing with probabilities.

They are factual.

Practical considerations are involved and people in their everyday work or officers in their everyday work have to make very rapid decisions and their decisions that a reasonably proved man should make and not as legal technicians.

That wording has been used in many of the cases from this Court.

Now, I'm going to say something that question whether probable cause in such case as this must be shown from the four corners of the affidavit in a state case.

I agree that this Court has so held there and I think it's been uniformly held in all of the federal cases that it must be so shown in the federal cases but that is because of the federal rule which requires that at least stated in the affidavit.

I know --

Justice Byron R. White: (Inaudible)

Mr. Carl E. F. Dally: There again, Your Honor, to clarify a little bit, we do not have motions to suppress in Texas and they're not recognized the -- I think, we both cited the case but there are many cases, there's no question about that.

And the way that this raised is an objection at the time of the trial on the merits.

Justice Byron R. White: (Inaudible)

Mr. Carl E. F. Dally: I think that Mr. Woody has stated it correctly, as I understand, while we have number of cases.

There has been some divergence of opinion but there are a number of cases and the most recent ones and I think the Court of Criminal Appeals now follow that rule that you cannot go behind the search warrant.

It further answered your question.

It's my understanding that when a search warrant is issued by a magistrate --

Justice Byron R. White: (Inaudible)

Mr. Carl E. F. Dally: I'd -- I preface my remarks that I would probably draw a number of questions on this, Your Honor.

And one of the things I would like to say is this, that when a magistrate issues a search warrant, it's my understanding that he is actually making a judicial determination at that time.

And I think as a practical matter, these -- the magistrate, many times, I think it's common knowledge that they know the officers who applied for these search warrants.

I think its everyday commonsense to say if I were a magistrate and a man comes in and asks for a search warrant, an officer, some officers are more believable than others, Your Honor.

And I think that the magistrate has the right when the affidavit is brought to him to ask additional questions and make determinations as to whether or not, there -- there would be sufficient probable cause in addition to what is stated in the affidavit.

Justice Byron R. White: (Inaudible)

Mr. Carl E. F. Dally: But to -- to be completely candid with -- with, Your Honor, Mr. Woody, I believe in -- in the trial court, brought out the fact that there had been some time laps from the time that they received part of the information.

The officer said the first information that we received is on the 1st of January.

He had then, of course, asked him why they did not obtain search warrant immediately and he said that they wanted time to set up a surveillance and they did not obtain the search warrant until the 8th of January, one week later.

In my brief, I -- I wanted to take advantage of whatever that would be and honestly, I think that there is no more than what is stated there in the reference in the -- in the record where you were reading when Mr. Woody was making his argument, I think it's the only place that that appears.

Unfortunately, it's not in the record if there was any surveillance and if there were any other facts that might help with this problem but they are not there.

And to be perfectly fair, I don't -- the trial court did follow the state law while in that regard.

Just before closing, I do want to correct one impression that may have been made.

The trial court did not arbitrarily.

He said that he hadn't read the case of Mapp at the time this case was tried.

But I believe on page 22, it indicates there that counsel did give him the case and they did read it and did consider it before making his ruling.

Chief Justice Earl Warren: Very well.

Print this transcript Transcript: 

Argument of Carl E. F. Dally

Chief Justice Earl Warren: -- Petitioner versus Texas.

Mr. Carl E. F. Dally: Mr. Chief Justice, may it please the Court.

Chief Justice Earl Warren: Mr. Dally.

Mr. Carl E. F. Dally: Before leaving and concluding my argument, I would like to make it very clear that the State of Texas relies upon the affidavit opinion sale for stating probable cause in this case.

We stated in our brief and we still would contend that actually the affidavit would be sufficient even under the federal standards.

And in support of that we would like to call the Court's attention to the case of Eisner versus United States found in 297 Federal Reporter.

In that case a federal court has upheld an affidavit which read as follows."

Information has been obtained by SA Clifford Anderson, FBI, Cincinnati, Ohio which he believes to be reliable to the effect that Sam Eisner received first which were a part of the loot from the Davidson Indiana Fur Company in Kentucky after they have been transported from Indianapolis and had knowledge that they have been stolen."

This particular affidavit certainly is no stronger than the one that we have in the present case.

Certiorari was denied in this case and we would offer that in support of the fact that the affidavit found in the present case may even be of such standard that it would meet the federal requirement.

Justice Hugo L. Black: What case was that?

Mr. Carl E. F. Dally: That was the case of Eisner versus United States, Your Honor and its 297, Federal Reporter 2d, page 595 and I believe decided --

Chief Justice Earl Warren: Is that in your brief?

Mr. Carl E. F. Dally: It's cited in my brief, Your Honor.

Chief Justice Earl Warren: Cited in your brief.

Mr. Carl E. F. Dally: We would also say that the -- that this Honorable Court in their Opinion of Ker versus California, as used much of the language that would be applicable in this present case and that is that federally that the Mapp decision did not ring the bell for federalism that the states and the United States would still operate side by side, that the same standards would not be applied.

We would say and we respectfully submit that the Court of Criminal Appeals of the State of Texas in approving this affidavit applied the fundamental criteria from the Fourth, Fifth and Fourteenth Amendment of the Constitution of the United States and respectfully submit that the case should be affirmed.

Thank you.

Chief Justice Earl Warren: Mr. Woody.

Argument of Clyde W. Woody

Mr. Clyde W. Woody: Mr. Chief Justice, may it please the Court.

One thing that I would like the Court to be cognizant of is my position so far as the hearsay is concerned.

On page 11 of my brief, I'm not -- I am not attacking this proposition, this affidavit on the constitutionality of an affidavit based on hearsay.

That's not my major contention.

It is that it does not state sufficient facts.

Now the Eisner case and the Rugendorf case that counsel has referred to do state facts distinguished from conclusions.

And this Honorable Court in Nathanson versus United States, it is a matter of fact which was reaffirmed in Jones versus United States, the case that he relies on here.

And in the Nathanson case, may it please the Court, here is the affidavit which this Court held inadequate and insufficient so far as this position is concerned.

And here is the affidavit.

Whereas, he said Francis B. Laughlin, has stated under his oath that he has cause to suspect and thus believe that certain merchandise to wit, certain liquors of foreign origin and more particular description of which cannot be given upon which is otherwise been bought into the United States contrary to law.

And that said merchandise is now deposited and contained within the premises of JJ Nathanson, said premises being described as a two-storey framed building at 117 North Bartram Avenue.

And the Court said this about that particular affidavit.

It -- it went upon a mere affirmation of suspicion and belief without any statement of adequate supporting facts.

The -- the Court went further to say that under the Fourth Amendment the officer may not properly use a warrant to search a dwelling unless the -- it has been issued upon probable cause.

Now the Eisner case, there is not -- I submit -- is not employed in the Rugendorf case likewise.

Now the Rugendorf case which counsel has cited, the affidavit is thusly.

Agent Moore of the FBI swore that an informer who had furnished reliable information in the past, reported to the affiant that he had seen 80 fur garments on the defendant's basement a few days previously, describing them as mink, otter and beaver jackets with labels removed.And that the informer had been told the fur was stolen.

Now in that particular affidavit, the Court indicated that they did not discuss this proposition of facts, the Court merely said the appellant was urging in the Rugendorf that the affidavit was based on hearsay information and therefore was insufficient.

And the same proposition was before the Court in Eisner.

Now these are of course two different propositions, one, hearsay and the Court has already dispose of that proposition that under some circumstances possibly, an affidavit may properly be based on hearsay.

However, it must state facts as distinguished from conclusions of law as the -- if the Giordenello case is still the law of this Court and still the law of this land.

And if Mapp and Ker mean what they say they mean that the Fourth Amendment is enforceable against the State with the same degree and to the same extent that they are enforceable against the federal courts then this affid -- instant affidavit is insufficient.

It is inconceivable to me to believe that if a federal agent or if the Federal Government brought into this Court, an affidavit and which ordered the arrest of an individual and other person or persons unknown and that such process was issued and executed and was relied upon and that a blanket warrant such as we have here was utilized.

And I submit that this is almost -- this is very, very close to the affidavit and the warrant that jus -- that the Court considered in Marcus that was decided the same day as Mapp.

And two, the Justice -- two of the Justices agreed without the -- without it really being urged that this was a general warrant.

And I submit that we have before us here a general warrant.

It matters not I submit that the Court has spoken that the Fourth Amendment is enforceable against the States if you allow the States the right to say by their legislation, "Yes, we will follow the constitutional laws of the United States but interpret them in such a manner that they do not do so."

That is what we have here and I submit that the proper procedure here would be to reverse this cause and to remand it to the Court of Criminal Appeals and to spell out with great particularity of certainty just what is required in an affidavit and search warrant.

Counsel has suggested throughout that while the Federal Rules of Criminal Procedures should not be -- should not controlling on the States.

Well as far back as 1926 in the Olmstead case and in 1915 in the Weeks versus United States.

Long before the Federal Rules of Criminal Procedure were promulgated, we had the very same application of Rule 41 which is now Rule 41.

And as a matter of fact this Court held in Olmstead that it is a -- this is a part and parcel of the Fourth Amendment the -- a motion to suppress.

Now I -- I don't see -- I've failed to appreciate how imposing upon the States the requirement that they follow the Fourth Amendment and the Fifth Amendment in this manner works any hardship and this -- this argument of federalism, I submit, has no merit to indicate just the -- just precisely how the Court of Criminal Appeals has confused the issues in a very -- in one of the cases that counsel cites in Giacona.

A dissenting opinion there and if I may I would like to read what -- one of the judges the Court of Criminal Appeals said, a man who's been on that court Judge Morrison for a very long time.

What we overlooked originally and what they failed to give application to on rehearing is the basic concept of the right of privacy as guaranteed by the Fourteenth Amendment of the Constitution of the United States.

And he underlines as interpreted by the Supreme Court, together with the fact that the Opinion in Mapp, the guarantees of that -- of that Amendment as so interpreted have been extended to those who are tried in state court.

Now, at least one member of the Court of Criminal Appeals recognizes the fact that they have not been following the Fourth and Fifth Amendment as it is interpreted by this Court.

And I submit that in reality, they have not been following a period.

And if the Court does not now find that such an affidavit and search warrant to be void then Mapp versus Ohio, Ker versus California has no meaning whatsoever so far as the states are concerned because the states that want to circumvent these particular statutes -- these particular holdings will merely enact the statutes such as Texas has and interpret it accordingly and there will be no real protection and there will be no effective right of privacy as guaranteed by the Constitutional laws of the United States and as has been interpreted by this Honorable Court.

Thank you very much.