SEE v. CITY OF SEATTLE
Legal provision: Amendment 4: Fourth Amendment
Argument of Norman Dorsen
Chief Justice Earl Warren: Number 180, Norman See, Appellant, versus City of Seattle.
Mr. Norman Dorsen: May it please the Court.
This is a companion case to Number 92, Camara which was heard before the luncheon recess.
This is the fire inspection case.
It arises under the Fire Code of Seattle Washington.
The same basic question is presented under somewhat different ordinance whether the Constitution protects citizens against unwarranted searches.
And unwarranted search is stated in two senses, one without a search warrant and two without any reasonable cause to enter.
The statute in issue is on page 5 of the record and I'd like to read it to the Court.
8.01.050 inspection of buildings and premises: It shall be the duty of the Fire Chief to inspect, and he may enter all buildings and premises except the interiors of dwellings as often as may be necessary for the purpose of ascertaining and causing to be corrected any conditions liable to cause fire or any violations to the provisions of this Title and of any other ordinance concerning fire hazards.
There are a couple of other ordinances and they're also in the record at the end of the Fire Code.
The appellant --
Chief Justice Earl Warren: It says anything except dwellings?
Mr. Norman Dorsen: Except dwel -- dwellings Mr. Chief Justice.
Chief Justice Earl Warren: Well --
Mr. Norman Dorsen: Appellant, Mr. See was convicted under 8.01.140 which appears at page 11 of the record.
It says, “Anyone violating or failing to comply with any provision of this Title or a lawful order of the Fire Chief shall upon conviction thereof be punishable by a fine not to exceed $300 or imprisonment in the City Jail for a period not to exceed 90 days, or by both such fine and imprisonment, and each day of violation shall con -- constitute a separate offense.
In the light of the case you heard this morning and the light of Frank v. Maryland and Eaton v. Price, it is apparent that this ordinance is in a sense the ultimate weapon of municipalities because unlike the ordinance in Frank v. Maryland, this ordinance does not have any of the finely tailored provisions.
It does not have a provision providing that the inspector must have reasonable cause to find the nuisance.
It doesn't even provide that the inspection take place at reasonable times and each of the four other ordinances before this Court have such a provision.
The Eaton ordinance, the Frank ordinance, the Camara ordinance and the ordinance in Hadley v. City of Malden of Massachusetts which was filed in January and it's on the miscellaneous docket.
Not only that, that this ordinance says nothing about credentials.
In other words, this is an ordinance which is completely open-ended as far as the power of inspection is concerned.
Now, the facts in this case are stipulated, they were stipulated from the start and they appear on pages 1 and 2 of the record.
Mr. See, the appellant, is the owner of a private warehouse in the City of Seattle.
The Fire Department, to its authorized representative demanded the defendant that an inspection be allowed as to the premises.
The Fire Department did not procure a search warrant and it made no claim that the Fire Department had any reasonable cause to believe a violation of the ordinance existed at the time of the demand.
The appellant refused to admit the inspection.
Eventually a warrant was issued for his arrest.
He was convicted in the Municipal Court, fined a $100 and a suspended fine.
He posted his bond, he appealed to the Superior Court of Washington which affirmed, and he then appealed to the Supreme Court of Washington which affirmed in an opinion which is cont -- which begins on page 17 of the record.
The constitutional issues before the Court were raised seasonably below and were passed on by the Supreme Court of Washington.
The basic position of the appellant in this is case is that Frank v. Maryland should be overruled, that a warrant should be required.
Alternatively, if Frank v. Maryland is not overruled, it is urged that the Court reverse this conviction, it reversed the decision below anyway because of the breadth of the ordinance and because of the failure to include the requirements of probable cause, a requirement which was contained in the ordinance of Baltimore, Maryland and Frank in the Frank case now which was stressed by both Justices Frankfurter and Whittaker in their two opinions with the majority.
As far as overruling Frank v. Maryland, the basic position is that there must be some protection to the citizens against the man knocking on the door.
There must be some responsible way of determining the validity of the request for entry.
Justice Potter Stewart: Did any -- did anybody live in this building?
Mr. Norman Dorsen: No, Mr. Justice Stewart.
Justice Potter Stewart: Or occupied it in?
Mr. Norman Dorsen: No.
Justice Potter Stewart: Except that employee?
Mr. Norman Dorsen: Correct.
Justice Abe Fortas: Was there anything in this building as the record show?
Mr. Norman Dorsen: The record does not show.
Justice Abe Fortas: For all we know it might have been a vacant building?
Mr. Norman Dorsen: It might have been vacant, Mr. Justice Fortas.
Justice Abe Fortas: And would your position apply to that even if it is vacant?
Mr. Norman Dorsen: Yes.
Justice Abe Fortas: You mean this --
Mr. Norman Dorsen: Well --
Justice Abe Fortas: Even if it were a vacant building?
Mr. Norman Dorsen: My position would be that the -- that if the owner of the building did not want to admit entry that a warrant would be required whether or not it was --
Justice Abe Fortas: And it's on --
Mr. Norman Dorsen: -- it subsequently turned out to be vacant or not.
Justice Abe Fortas: That's solely because of the factor of ownership though.
Mr. Norman Dorsen: That's correct.
We're dealing here with private property and as Mr. Justice Stewart pointed out in the earlier case, the Fourth Amendment has been consistently applied to protect a commercial premises as well as dwelling.
And our position is that even in that case, the man who owns the premises is entitled to have the authority seek a warrant.
I would like to read --
Chief Justice Earl Warren: Suppose this was a -- open business for people who'd come and go, would you still say they have no right to go in and inspect it?
Mr. Norman Dorsen: I think a distinction would have to be made between this case and that.
And I think even in that case Mr. Chief Justice that part of the premises which were open to the public could be entered upon by inspector.
That any part of the premises that was not open to the public, for example the prescription room of a pharmacy or the workshop of the private office of the owner of a department store for example that was open to the public, I would say the same rule would apply as the one we are urging in this case.
Justice Hugo L. Black: Suppose they had the books that they were -- in the part of the building that's open to the public, do they have the right to seize those books without a search warrant?
Mr. Norman Dorsen: No, I don't think so.
The books are private property and they're owned specifically by the owner and I think a warrant would be required for books as I think the Court has held and do alleged --
Justice Potter Stewart: Books with the effects under the Fourth Amendment?
Justice Hugo L. Black: That's correct.
Justice Potter Stewart: Wouldn't it?
Justice Hugo L. Black: Yes, Mr. Justice.
In our reply brief, we say, summarizing the position we urged upon this Court that there must be some judicial barrier to the exercise of unchecked discretions by administrative official, this is on page 3, who are seeking to gain admission to private premises.
There must be some rational means of assuring a private citizen that his property is being opened as part of a rational inquiry of authorized representatives of local government.
Justice Abe Fortas: Well, suppose this were an open field and you have an inspection statute, does the -- does the Fourth Amendment apply that?
Mr. Norman Dorsen: To an -- to an open pasture field?
Justice Abe Fortas: Yes.
Pasture not even a cow?
Justice Potter Stewart: As the Hester case maybe?
Mr. Norman Dorsen: Well, you -- you do -- push me further than I thought I was going to have to go.
I would say that -- if the -- the pasture were fenced off, it was kept as a private preserve that it should not be entered upon without seeking some intervention by a magistrate.
I'd like to say at this point very squarely in view of the discussion in the Camara case that the appellant and the position we're taking here is not attempting to subvert legitimate inspections of any character.
The question in this case is how to accommodate the public interest in the inspection and the interest of the private citizen in his privacy.
And this of course is fully consistent with the words of the Fourth Amendment which talk about unreasonable searches and seizures.
The key is that the unwilling door need not be opened without a showing to an independent judge that a valid administrative need exists.
Justice William J. Brennan: Now, how does that differ?
Mr. Norman Dorsen: Well I -- unlike my colleague in Number 92 feel that the key identifying phrase for my part would be that there must be one a -- a reasonable plan, a reasonable inspection plan of one sort or another --
Justice William J. Brennan: Well, and that suppo -- suppose I don't know what this ordinance, if I administer that, I gather nothing, that's what --
Mr. Norman Dorsen: That's right Mr. Justice.
Justice William J. Brennan: -- you said.
But suppose that had a provision comparable to that in the San Francisco that there's an annual inspection according to some routine plan of inspecting all of the buildings of -- kinds of buildings in this?
Mr. Norman Dorsen: I would say that -- that that would be sufficient.
I would say that that was sufficient.
In the dissent in Eaton it was pointed out that a regular rou -- routinized spot check or a check of all the houses in a particular neighborhood.
It presents to a magistrate would serve to -- to provide the factual predicate for the issuance of the warrant.
Justice Byron R. White: Well, Mr. Dorsen, what if you have this particular statute but you have an administrative arrangement, a set of regulations issued by the health people saying where every year we do -- we do -- and it turns out that this inspection in this case was a routine annual inspection according to the plan.
Mr. Norman Dorsen: Well, I think that if the inspector showed up without a warrant the individual would be entitled to say to the inspector “Go to the magistrate and present these facts to the magistrate.”
And if for example under the facts you suggest Mr. Justice White the regulation say at one year --
Justice Byron R. White: And you would say he could get this warrant?
Mr. Norman Dorsen: He would.
But supposing to take a -- a case that is I think cognate to the one you suggest supposing for seven years they never inspected anyone else in that neighborhood but only this man, I think the magistrate would be entitled to ask some questions.
Even though under a -- the factual statement you made of -- of a regularized one year annual inspection, I would think that would be perfectly valid.
Justice Byron R. White: Well, I take it -- I take it, if there was a warrant before him that the warrants could issue on the complaints on specific cases?
Mr. Norman Dorsen: That's correct.
If there was a reasonable suspicion for example, the dissent in Frank v. Maryland which also dealt with this problem suggested that experience may show that there was -- there's a need for periodic inspection of certain types of dwelling and specifically said that the mere passage of time may show that the inspection is -- is valid under the Fourth Amendment.
In that case, the warrant was issued.
Justice Byron R. White: Would you -- would you agree with that?
Would you agree with that?
Mr. Norman Dorsen: Yes, in certain situations.
I think that it depends of course on the path -- on the length of time that had passed and what Mr. Justice Douglas did not stipulate precise --
Justice William J. Brennan: Well, I gather Mr. Dorsen that essentially what you're saying is that something less than a showing in a criminal case would suffice a part of that it's absolutely essential if -- if the proper entry demand of that there be the intervention of a judge before someone enters.
Mr. Norman Dorsen: That's our position and we -- we -- in urging it to the Court, Mr. Justice Brennan, we do not feel that anyway we're subverting the inspection process.
And -- and the inspection would be --
Justice Potter Stewart: Well, that's -- aren't you --
Mr. Norman Dorsen: -- quarterly.
Justice Potter Stewart: Aren't you -- aren't you not only subverting but cheapening and degrading the values of the Fourth Amendment when you say that the reasonable cause could be shown just by the desire to make a spot check?
Mr. Norman Dorsen: No, I don't --
Justice Potter Stewart: Those periodic inspections, certainly, you can't do that of the -- under the Fourth Amendment?
Mr. Norman Dorsen: Not in the criminal case, Mr. Justice Stewart.
Justice Potter Stewart: No.
No, not in real cases.
It's ever been decided --
Mr. Norman Dorsen: That's correct.
Justice Potter Stewart: -- by this Court under the Fourth Amendment.
Mr. Norman Dorsen: And this is -- and this Mr. Justice Stewart is a different kind of a case.
Justice Potter Stewart: Certainly is.
Mr. Norman Dorsen: And it's a kind of a case where there's a different showing the facts upon which the warrant could issue.
Justice Potter Stewart: Something -- something other than probable cause, is that it?
Mr. Norman Dorsen: A different type of probable cause.
It's a different type of probable cause, for example, in -- in the facts you have to show to search a house from the facts you have to show the search an automobile, from the facts that you have to show to search a house in the daytime, and the facts that you have to show the house -- to search a house in the evening.
And that doesn't cheapen the Fourth Amendment.
Justice Potter Stewart: Well, it's seems to me that if you can just show, we haven't inspected this place for a year.
And if that's enough under the Fourth Amendment then you're completely subverting the values protected by the Fourth Amendment.
Mr. Norman Dorsen: I would not say so.
If -- the way I understand the -- that the earlier comment I made was correct, Mr. Justice Stewart.
My point was that there must be a reasonable plan, a reasonable plan --
Justice Potter Stewart: Well, now with -- it was just a spot check, a periodic random spot check be a reasonable plan.
That's certainly a very accepted way of operating in -- in areas like checking (Voice Overlap) --
Mr. Norman Dorsen: Yes, I would think it would.
I think it would be.
Justice Potter Stewart: Just to keep -- kept precious random spot check.
Mr. Norman Dorsen: I would call it a -- a rational spot check.
Justice Potter Stewart: And be easily --
Mr. Norman Dorsen: That is a sound way of ensuring against fire hazards which is what the ultimate purpose of the inspections system is, it would seem to me that that would be a reasonable way go about it and not “unreasonable” under the words of the Fourth Amendment.
And I might say, in connection with your question Mr. Justice Stewart that the Supreme Court of Washington and in this case in connection with the dwelling part of the statute.
There's a specific provision dealing with dwellings, .040 which says on page five of the record.
I think this is very pertinent to your question.
The statute says, the ordinance says, “The Fire Chief shall may enter, investigate and inspect any dwelling -- any dwelling when he has reasonable cause to believe a violation of the provisions of this Title exists.”
On page 19 of the record, the Supreme Court of Washington interpreted that provision of the ordinance and said, “In noting the distinction between dwellings and commercial premises it will be noted that .
050 specifically accepts the interiors of dwellings and consequently,” this is in the middle of the page on the record 19, “and consequently the same may not be inspected against the owner's will without a warrant.”
What the Supreme Court of Washington say and nevertheless word on what the ordinance of Seattle means is that you can't have warrant, and presumably they had some realistic or understandable standards in mind when they impose this requirement.
And now of course, this is -- it is not our case specifically by points up I think -- the -- the question you -- you asked which is of course a critical one namely what exactly is going to be shown to the magistrate.
And that is --
Justice Potter Stewart: If the Fourth Amendment requires nothing more than a -- an automatic rubberstamp on a piece of paper, we're not talking about it very much in this case, are we?
Mr. Norman Dorsen: Well, I -- I certainly agree with that but I don't think, I'm suggesting -- I don't mean to suggest that that's all of this, a rubberstamp.
There has to be some rational plan, the man must come forward.
He must swear to the facts contained in the plan.
Justice Byron R. White: Well, Mr. Dorsen what if there's a legislative judgment in the statute or in an ordinance that says -- that says ins -- inspect every year because we think within the period of a year that enough can happen to a dwelling that requires inspection.
Then there's a legislative judgment that's possibly can -- would -- would justify in inspection, would that be enough reason for you?
Mr. Norman Dorsen: It would not be enough without the warrant.
And I think that --
Justice Byron R. White: No, I mean -- that's what I mean.
That it'd be enough to give a warrant of?
Mr. Norman Dorsen: I think it would be.
I think --
Justice William J. Brennan: And the fact here is, as long as the plan is as you call it that was a -- your real answer is that there has to be a judicial intervention that that's with the Fourth Amendment?
Mr. Norman Dorsen: That is -- is our position Mr. Justice.
There has to be the intervention of a disinterested independent judicial mark between the administrator, between the inspector and the individual.
And that as I understand it was one of prime purposes of the Fourth Amendment, not to leave the individual, not to leave the individual citizen at the mercy of every petty official and every inspector who might want to enter.
Justice William J. Brennan: What if it was Abel?
Mr. Norman Dorsen: Pardon me?
Justice William J. Brennan: What would you do if the Court's decision in Abel?
Mr. Norman Dorsen: In Abel.
Well, that of course represents a -- a difficult and separate problem.
Justice William J. Brennan: No, I mean on this point of judicial intervention the Court's there as I recall it find --
Mr. Norman Dorsen: I -- without having --I haven't studied that case very frankly in the same way I have this.
My general position would be there must be the intervention of a judicial or --
Justice William J. Brennan: But there -- there of course because there was the need in that.
Mr. Norman Dorsen: That is correct.
Now, the -- a point that was emphasized by the appellees of the Camara nearly serves to -- to illustrate, it seems, to me the desirability of requiring the warrant.
There are hundreds and hundreds of inspection programs that are potentially available to infringe the privacy and infringe individual property.
And it seems to me that the person who has to open the door, who has to let the man in is in the position of complete weakness and -- and without the kind of protection that it seems to me the Constitution requires.
Justice Potter Stewart: Well, it seems to me if the problem would be really if -- if somebody comes to your door under the warrant you have very little choice about whether or not you would let him in.
And if he comes there simply as an inspector under a statute you perhaps have more choice.
You can -- about finding out whether he really is an inspector or if he's an impostor.
Mr. Norman Dorsen: Well, the importance --
Justice Potter Stewart: Then you can say, “I'm sorry, I'm not going to let you in until you show me that you are a member of the Fire Department.”
Mr. Norman Dorsen: Well, of course that again is a serious problem.
I would answer that Mr. Justice Stewart by saying that the law should provide a way for the individual, for the citizen, the property owner, to get that determination before his acting at his peril.
Before his acting at his peril under the criminal law, that was stressed in -- in the dissent in the Eaton case and I think it's -- it's --
Justice Potter Stewart: Not if I say, if somebody comes to your house with a warrant which you say can be -- as I understand you can be issued by a magistrate at simply upon the showing of the Fire Department that we're making a random irrational spot check of various building in the city, and this is one of the buildings and then the warrant issued and you show up at that building and that person hasn't got any choice but let you in.
Mr. Norman Dorsen: Well --
Justice Potter Stewart: He has a duty to let you in then.
Mr. Norman Dorsen: That's correct.
Justice Potter Stewart: Whereas if the -- at any time of the day or night and no matter how convenient it may be for him.
Mr. Norman Dorsen: Well, this -- that -- that point is of course raises it seems to me the second central issue here and that is, that no matter how one feels on the question we're now discussing, the ordinance in this case points of as shortly as any that I have seen the kind of unlimited at large authority that some municipalities are prepared to attempt to invest their inspectors with.
Here is the case where you do not have a requirement of reasonable cause.
There is no requirement that you show me your credentials.
There is no requirement that'd be in the day time.
Now, this of course as we said in the earlier case that it seems to me that -- that the decision below could be reversed from that ground alone.
Justice Potter Stewart: Well, my -- my question was this, that if you're right that all that's required is a warrant then you come with a warrant and the person has a duty as you say to let this man in if he has a warrant --
Mr. Norman Dorsen: Well, there --
Justice Potter Stewart: -- whereas under the existing statute without a warrant, it would seem to me, he has no such duty.
He can say, “I don't know whether or not you're a member the Fire Department besides that I'm having dinner, come back at some other time.”
Mr. Norman Dorsen: I don't think if I understand this word means correctly.
If I understand the wording of the Camara case correctly that that is so Mr. Justice Stewart.
I do feel you do have a duty to let the man in.
The impostor problem is not going to be solved either way.
Either way, the man can come and say he's an inspector.
Either way he can come although with more difficulty it seems to me to try to forge a warrant.
That is not the easy -- easiest thing to do.
But in both cases -- in both cases under this ordinance and the ordinance in the Camara case you have to let the man in and you're acting at your peril.
I would prefer to leave the remaining time for rebuttal if may Mr. --
Chief Justice Earl Warren: Very well.
Argument of A. L. Newbould
Mr. A. L. Newbould: Mr. Chief Justice, may it please the Court.
As has been stated by the appellant, the ordinance before the Court today is the Seattle Fire Code.
Generally speaking this ordinance regulates the handling of combustible materials and liquids.
The construction and maintenance of certain buildings, the equipment that must be put into plants and warehouses and apartment houses, and what we refer to as highlight for occupancies, all in connection with fire prevention activities.
The ordinance as a whole is directed towards flammable and explosive materials and liquids.
The method of obtaining compliance with this ordinance is one that's been in existence in the cities since about 1884 in one form or another.
Today, it involves a fire inspection program.
Virtually every member of the Seattle Fire Department, it is involved in this inspection program and it goes on during the non-winter months of the year.
The object of the ordinance is remedial and not punitive.
We are not attempting here to -- or our object here is not to put people in jail or to put fines on our citizens but to attempt to cure a defect, or error of omission if you please before the fire actually occurs.
The ultimate goal then is one of cooperative compliance not penalty.
When we look at Mr. See's warehouse, the Fire Department didn't come to his warehouse and ask for an inspection.
Demand is one way to put it, request is another way.
There was no immediate entry into the warehouse, it's been some three years now and the Fire Department is still not in the warehouse.
What are we talking about in sense of -- of the interest of these men in this warehouse.
A warehouse is a possessory of right of property interest.
We're not talking about intimate personal relationships; we're talking solely about property rights.
We don't have the problem here of the young lady at the door who is afraid of who is going to come in.
We look at the Fourth Amendment, we look to see whether or not the Seattle Ordinance has interfered with Mr. See's security and his person, his house, his paper, or his personal effect.
We find out that if there is an interference it's one with a “property right” such as it maybe.
Now, historically in this country, inspections have been accepted as non-Fourth Amendment process.
Principally, the Fourth Amendment has been directed at criminal prosecutions and the accumulation of evidence for those prosecutions.
While in some of the cases, particularly Frank, abuses this type of inspection process are being predicted.
The facts are that these abuses have not arisen.
Mr. See here does not claim that the Fire Department was harassing him, that they broke down his door, that he came at a non-reasonable time, that they were other than harassing then repeated that they were picking on him for some particular violations.
In fact, they did not know whether or not Mr. See had violated the ordinance.
We're getting here to the point that the fire inspector, at the time these firemen did not know whether or not Mr. See had a fire hazard within his building.
He does not know the contents.
Justice John M. Harlan: Under your argument, it's reasonable to give them a right to inspect?
Mr. A. L. Newbould: We take the attitude that the -- and the Supreme Court analyzed it this way.
While the word reasonableness is not in the ordinance, this is an implied requirement by law that the ordinance, the inspection provisions of the ordinance be administered reasonably.
I would say that there is no right to force entry into Mr. See's warehouse.
Justice William J. Brennan: Well, how do you know that Mr. Newbould?
Mr. A. L. Newbould: Pardon me.
Justice William J. Brennan: An implication of reasonableness where there is constitutional requirement or just as the matter of statute --
Mr. A. L. Newbould: As a matter of law.
In other words the --
Justice William J. Brennan: Well, I don't quite follow that.
You mean that they implied this in, in the interpretation or the ordinance or --
Mr. A. L. Newbould: In the interpretation of the ordinance.
If there were a particular conviction there would be a requirement that the inspection have been a reasonable inspection.
That you can't imply into the ordinance that it authorizes unreasonable inspections.
This is our alternative and my point is that any enforcement and the practical enforcement of this ordinance there will be a requirement that each area of the inspection process be reasonable and to the extent that it becomes then unreasonable, it becomes outside the legislative authority.
Chief Justice Earl Warren: Do you feel there's constitutional difference between your situation here and the one who are at -- was a dwelling?
Mr. A. L. Newbould: There is a difference in the analysis of the issue.
The point --
Chief Justice Earl Warren: But on that -- is there a constitutional difference.
You made a point of the fact that this could not apply to dwellings.
That it only applies to businesses.
Now, by that, do you -- do you think that there is a constitutional deference between the two?
Mr. A. L. Newbould: Let me state my point so it's clearer.
I'm stating that the inspection progress --
Chief Justice Earl Warren: Could you answer that?
Mr. A. L. Newbould: Yes sir.
The inspection process --
Chief Justice Earl Warren: No.
Is there are a difference or isn't there?
Mr. A. L. Newbould: In the final analysis, no.
The inspection process is not a Fourth Amendment prohibited procedure.
Because it --
Justice William J. Brennan: It's what?
Mr. A. L. Newbould: It is not a procedure prohibited or proscribe by the Fourth Amendment.
So long as we're dealing with safety inspections of buildings and we do not touch the person, we do not interfere with the intimate relationships of his home, we do not interfere with his papers or his effects.
Justice William J. Brennan: You mean it's not a search.
It's something called an inspection?
Mr. A. L. Newbould: It's an inspection.
It's not a search and seizure.
Chief Justice Earl Warren: But so far -- far as we are concerned then there is no distinction between your case and the case we just have heard.
Because one has to do with a dwelling and this one has to do purely with a business.
Mr. A. L. Newbould: There's no difference in the analysis of the Fourth Amendment.
Now, this case becomes easier to -- to decide because we may not get into the areas of rights of privacy and the -- and the intimate relationships of alike.
This makes a lot a difference but the -- my provision --
Chief Justice Earl Warren: Well, possibly we do that -- we do that because of our constitutional questions, don't we?
Mr. A. L. Newbould: That's how we say we do it, yes Your Honor.
But it's because we're interfering with these items --
Chief Justice Earl Warren: And this one is the issue because it doesn't have that constitutional question, is that right?
Mr. A. L. Newbould: These one is easier because it's more clear that we are not concerned with the person, his house, his person, his papers or his effects.
When you get to the home situation -- that situation, if the analysis becomes more difficult of what -- if we look back into history, we find out that these inspections have been accepted.
Justice William J. Brennan: Well, it doesn't become difficult if you say this is not a search but an inspection.
And that's something called an inspection not being a search as outside the -- the provisions of the Fourth Amendment.
Mr. A. L. Newbould: That's correct.
Justice William J. Brennan: It doesn't matter whether it's a private home or a public building.
Mr. A. L. Newbould: That's correct.
Unless we -- unless we have troubles with our analysis of the right to privacy.
And I suggest the Court has had troubles in this area.
It's not that clear a proposition.
Until we -- unless we stick with the words of the Fourth Amendment, person, house, papers and effects, we have an extremely dif -- difficult issue.
I would like to address myself now to --
Justice Potter Stewart: Suppose you would agree that here in Washington where there are good many people nowadays concerned with the increase in the prevalence of crime that the Commissioner couldn't pass a resolution saying with a lot of warehouses about the increase of crime and until the police thereby or therefore are hereby authorized to enter any house at random.
They spot checks to see if there's any criminal activity going on.
Mr. A. L. Newbould: Not at all.
Justice Potter Stewart: What's the --
Mr. A. L. Newbould: I wouldn't agree to that proposition --
Justice Potter Stewart: What's the prevalence if there's a danger of increasing fires and --
Mr. A. L. Newbould: Any time you move into the criminal process.
In other words, we're talking about the penal process, we're moving against the person.
We make the difference or we make the statement in our brief that there's a major difference between something in random.
We look at the -- the structure of a building.
We are not concerned with the activities that are carried on inside the warehouse.
Now, we are not concerned with the activities inside the house.
We are concerned with the construction of the walls.
We're concerned with its plumbing, but were not concerned with his person, his papers or his personal effects.
Justice Abe Fortas: Suppose he'd got a lot of paper, pay a lot -- lot of his personal papers that are lying around near an open fire?
Mr. A. L. Newbould: We're concerned with the chemical content of that personal effect.
We are not concerned with the content of those personal effects.
We will tell him that under those circumstances, the storage of that chemical material close to that fire presents a fire hazard.
Justice Abe Fortas: I understand.
Mr. A. L. Newbould: For seizing or searching those papers, we don't touch it.
Justice Abe Fortas: If he says, “You leave me alone.
They're my personal papers,” the Fourth Amendment applies to them.
Mr. A. L. Newbould: And he says we should leave him alone and I agree that the government should leave him alone.
I do not agree that he has a right to keep those papers that close to the fire if in fact we agree that a hazard which enda -- endangers the entire neighborhood.
This is the point.
It's not what's in the papers and it's not what is in his books.
It's not whether the alcohol that he has in a particular can is seasoned or otherwise, it's the chemical nature of it that creates a fire hazard or the explosion hazard.
And this is what we are concerned with.
Chief Justice Earl Warren: Well, I suppose also though that if you found that this fire hazard was caused by him in violation of law, you might arrest him for it, wouldn't you?
Mr. A. L. Newbould: No sir.
He would get a notice to correct the deficiency.
Justice Potter Stewart: Let's say in a fire hazard there was a lot of ammunition and bombs in there, what would you do?
Mr. A. L. Newbould: This -- the explosives requires a special permit to store.
If he told the inspectors that those are cases of M1 ammunitions, he would get an instruction immediately to take out the permit and when he got his permit he must store them in accordance with the permit.
Now, I -- I spoke of the compliance with the fire inspection ordinances or the fire prevention ordinances as being primarily a voluntary type of encouragement to get people to cooperate in eliminating fires and explosions.
Normally, I would say that he would take out his permit and construct the necessary walls to protect this.
If he did not, then we come to the ultimate of the process and then we would be forced to take him into Court and say that you're storing ammunition without a permit.
Chief Justice Earl Warren: Do you say that under those circumstances could they arrest him for any violation of -- of the Building Code, when they found those violations under inspection?
Mr. A. L. Newbould: That's correct, Your Honor.
Chief Justice Earl Warren: I beg your pardon.
Mr. A. L. Newbould: That's correct.
I -- that's what I state.
Chief Justice Earl Warren: What provision of your law prohibits them from doing it?
Aren't there some violations that subject the man to punishment for those things?
Mr. A. L. Newbould: Page 19 of the record in the Supreme Court opinion in this case.
It should be noted that we are not concerned here with the seizure of evidence for use of -- in Court and there is no threat of criminal penalty even if the fire hazards were detected.
Chief Justice Earl Warren: Well, that doesn't decide the point what I asked you about.
Mr. A. L. Newbould: You said would we arrest him and put him in jail.
Chief Justice Earl Warren: I said, could you?
Mr. A. L. Newbould: The Supreme Court --
Chief Justice Earl Warren: This doesn't say you can't.
What you just read certainly doesn't.
Mr. A. L. Newbould: The Supreme Court instruction to this says that -- we must give the notice first, and if the violation of the notice that constitutes then the crime.
Chief Justice Earl Warren: Do you have any ordinances that say if a man does so and so in violation of the building code that he shall be -- he shall be prosecuted and if convicted, punished?
Mr. A. L. Newbould: Our Building Code says that, yes Your Honor.
Chief Justice Earl Warren: Yes.
Now, what is it that -- that says that those provisions are not valid that -- that you can't do it in that matter?
Mr. A. L. Newbould: As a furtherance of the Fire Code.
Chief Justice Earl Warren: Now, your statute says that if a man does certain things in violation of the Building Code he is guilty of a misdemeanor.
Now, what is it that says that he can't be prosecuted thus a misdemeanor if it's found in one of these inspections?
Mr. A. L. Newbould: In one of the fire inspections?
Chief Justice Earl Warren: Any inspection.
Mr. A. L. Newbould: We don't have inspections such as this in connection with our Building Code.
There are different types of inspections.
Now, the case here today is a fire inspection.
Now, the building inspection, we may have an entirely different case under our Building Code and that inspection ordinance.
We may have an entirely different case than we have today.
Chief Justice Earl Warren: Well, that's what I'm trying to get.
You -- so you can't say that -- that he goes in there to inspect, he's just going in there to see if everything is alright and if it isn't alright to tell the man to make it right, because if he doesn't, violations in there that there were both deliberate.
Isn't he subjected to the penalties to those arguments as you just mentioned to me?
Mr. A. L. Newbould: When a fireman goes into the -- the commercial premises under this ordinance.
We're talking about under the Fire Code and under this inspection authorization.
The only thing he may do when he gets through is to give a notice of deficiency.
Justice Byron R. White: Yes, but now -- what about -- lets us say he gives the notice of deficiency.
Then when he comes back he wants in again.
Then in -- then -- the Chief Justice question is certainly pertinent to --
Mr. A. L. Newbould: Then he will be prosecuted if there's not a correction within the reasonable time.
Justice Byron R. White: So why should he be able to get him in the next time without a warrant?
Mr. A. L. Newbould: The difference between the first time and the second time, the second time --
Justice Byron R. White: Well, in this -- in this term said.
Mr. A. L. Newbould: The second entry will be -- it may be denied.
But then we have the notice and we have the violation theoretically and the non -- the non-conformance.
Justice Byron R. White: And you really you get -- you say you can get in the second time?
Mr. A. L. Newbould: No sir.
Not if he refuses.
Justice Byron R. White: Not even in -- can -- can he get a warrant?
Mr. A. L. Newbould: He could -- not under Washington law, he could not get a warrant.
Justice Abe Fortas: Well, the point is as I understand it that the evidence observed by the Fire Chief or his agent after entering the -- the premises and would be used against the man in a criminal prosecution?
Mr. A. L. Newbould: This --
Justice Abe Fortas: -- you say the fireman, the inspector would come inside and testify that he made an inspection on the premises and that in the course to that inspection and he saw the -- this condition which was in violation of the code and then was notified to be corrected and he didn't correct it.
That's one reason why I'm having a little difficulty with your -- what I understand to be your distinction.
Mr. A. L. Newbould: This --
Justice Abe Fortas: -- between inspections and a criminal investigation and you take it the other way around.
Let's suppose that the police go to Mrs. Smith and say, “I want to go through your house because we think Johnny has been stealing.”
She says, “No or you can't enter in my house.”
And they say, “Well -- well we won't prosecute you.”
And so they give her some -- some kind of immunity and they don't in fact prosecute her that they go through the house and obtained some evidence which they subsequently used against Johnny, her son.
And suppose there's no doubt in your mind that that's a violation of the Fourth Amendment.
Mr. A. L. Newbould: What's -- if -- if we assume we waive the -- the question of the consent of the entry --
Justice Abe Fortas: She did not consent them.
They just said they're not going to use it against her.
Mr. A. L. Newbould: Now, the Supreme Court of Washington had this argument before them too.
They are on page 26 of the record.
The Supreme Court said, “The related issues and knowledge gained by the inspection for possible use in any subsequent criminal cases.”
That is the question we do not pass upon at this time since it is not before us.
Now, whereas that the defendant here or the appellant has not been prosecuted for violation of the ordinance.
We are not in that stage of the proceeding --
Justice Abe Fortas: Now (Voice Overlap) --
Mr. A. L. Newbould: -- pinpoint an answer.
Justice Abe Fortas: It's your analysis as I understand that requires us to face up with that, perhaps I don't follow you precisely then --
Mr. A. L. Newbould: One --
Justice Abe Fortas: -- if I do, it does require, in effect, to face up to this problem.
Mr. A. L. Newbould: One state court did have to face up to the problem and the case is now on the calendar.
And they found a particular solution not that I necessarily agree with it but the solution was found to solve this particular problem.
Once they had permitted the entry, what happens in the subsequent crimi --criminal prosecution to the evidence of this variety?
The point I would make when we do get there is in that entry it was there any insecurity, or was there an interference with the security if this person, his paper or his personal effects?
As to Mr. See, I will say no.
But as I say we have a long way to go before we get to this particular question.
I would like to take a minute --
Chief Justice Earl Warren: Mr. Newbould, may I ask you on -- under the ordinance, you do not have the right to inspect a -- a dwelling in the same manner in which you do a business.
And your argument provides that they must have probable cause in order to investigate it or to inspect a building.
And as I understood your Supreme Court has held that that means they have to have a warrant if they want to inspect this, is that correct?
Mr. A. L. Newbould: That -- I beg it is different with you there sir.
That's not correct.
It's dicta in the case.
Chief Justice Earl Warren: I beg pardon.
Mr. A. L. Newbould: It's dicta in the case.
This was read out of the See case, the statement that a warrant is required.
When we get to that point in the state court, we will be faced with the statutory process for the issuance of warrants in the State of Washington.
Now, this is an extremely limited process and I would like to spell it out to the Court, if I might, right here to show you what -- what we're concerned with.
You can get a warrant --
Chief Justice Earl Warren: But I -- I -- I didn't state that that's a fact
Chief Justice Earl Warren: I understood either your counsel to --
Mr. A. L. Newbould: Counsel the --
Chief Justice Earl Warren: -- the statement that the Court had interpreted it that way.
Mr. A. L. Newbould: They have but not in the case before that.
Because we were not into a residential house and we've not try to get into a residential premises --
Chief Justice Earl Warren: Yes.
Mr. A. L. Newbould: -- at that time.
That question of how to get in to a residence was not argued.
And when the courts decide questions like this, we get into trouble and it takes us more time to search (Voice Overlap).
Chief Justice Earl Warren: As far as you know that's the only evidence, we only -- the court law there is on the subject, is that right?
Mr. A. L. Newbould: There's no law on it at all, on how you get into -- how you show probable cause and to whom in order to gain entry to a house for a fire inspection.
Justice Abe Fortas: So your position is contrary to the dicta in this case if I correctly followed you.
Mr. A. L. Newbould: My position is res --
Justice Abe Fortas: And your position is that that's an inspection that it doesn't make any difference than it's a dwelling so far as Fourth Amendment is concerned.
And so far as Fourth Amendment is concerned that it is “inspection” that the Fire Chief can go in to it as Justice White puts it, if it's a dwelling or a place of business?
Mr. A. L. Newbould: He could have, but --
Justice Abe Fortas: And not a warehouse.
Mr. A. L. Newbould: But for the ordinance --
Justice Abe Fortas: No --
Mr. A. L. Newbould: It says --
Justice Abe Fortas: I'm talking about Fourth Amendment, isn't that your position?
Mr. A. L. Newbould: But for -- for the purpose of the Fourth Amendment, that's correct.
Chief Justice Earl Warren: Does the State of Washington recognized that under this ordinance a homeowner has the right to demand an ordinance, demand a -- a warrant?
Mr. A. L. Newbould: Well, we have no cases on that, Your Honor.
Chief Justice Earl Warren: But what's the practice?
Mr. A. L. Newbould: We have never been into the problem.
We don't go into residences.
We don't go into residences under the Fire Code even in apartment buildings.
The question so far as I know has never been raised in connection with an urban renewal housing inspection program, so that the legal issue to be passed on by the Court just has never been there.
As I say this is dicta in the case because we were not here dealing with a residence.
Let me make a distinction or -- or draw a distinction between the normal search warrant process and the suggestion that the appellant makes here that we obtained some other kind of warrant.
Now, the minute we move into the search warrant process, the first thing we have is a criminal proceeding.
When we -- there's -- there's a lot of difference between an inspector going to a house owner and saying, “May I inspect?”
And the inspector or same official with a warrant saying, “It's time now to get in”.
This is hard to put in words but a -- from personal experience there is nothing more officious than someone with the Court process.
We're talking about the feelings of the individuals within the house or within the business.
It's a more severe process to enter with judicial process than it is to ask permission to enter.
And that's actually what happens here.
Mr. See said no when the firemen asked him permission to enter.
And he continued to say no.
And he come later in a formal demand and a formal refusal by a letter.
Now, this is much different and what happened if -- our lieutenant from a leather company showed up at Mr. See's warehouse with his warrant.
Chief Justice Earl Warren: Well, the fact that they were entitled to demand the warrant would mean that every household you would have to present a warrant to every businessman or every household within it then we would go to them and say you want to inspect.
Then I suppose 99 out of a 100 people which says they always have that “Go ahead and inspect.” But if a person did demand one, well then you could have the -- the search warrant and -- and that he wouldn't have any right to say and if that was any more severe than otherwise, would he?
Mr. A. L. Newbould: If -- in my opinion it would be more severe, Your Honor.
In the San Francisco case, the property owner put the inspector off three times for whatever reason.
I asked a question by way of answering how may times does the inspector with a warrant is going to be put off?
Not at all, and now this doesn't matter whether we come with -- in with our warrant first or we come in with our warrant second.
Now, the -- the warrant process itself, when I go to obtain a search warrant, I go ex parte.
I take my justification up.
I give the justification to the administrative officer and whatever the reasons are under oath, if the judge will have to agree they accept the facts as determination of one of the probable cause from the facts.
There may well be some reason why the inspector shouldn't come in today or this month.
And it may well rate -- relate to Fourth, First, or Fifth Amendment freedoms.
But in any event, those considerations are not before the Court in the ex parte search warrant proceedings.
The next question here on our -- in our search warrant, well how about our question of probable cause?
In a sense, I was delighted with the first case because it's either no inspections on a routine basis or an inspection only on the same showing with a probable cause according to the appellant and a probable legal cause.
Appellant here is a bit more reasonable in saying, “Well a spot check or a -- a routine inspection program.”
My suggestion here is that the routine inspection program can be put into a mimeographed warrant, a mimeographed justification and I can leave blank in that mimeograph the number of the house and possibly the name of the person although I don't see why I need it, because this isn't a personal process and a blank for signatures.
Now, what's the -- the City of Seattle adopts an annual fire inspection program that becomes the justification.
And I cannot see how that justification becomes any better or any less better or this routine inspection becomes better or worse, or the protection for the propety owner becomes more or less when this mimeographed form is submitted to a magistrate to sign in accordance with the annual inspection program, I -- I don't think it's a real --
Justice Abe Fortas: Are you saying that you -- I beg your pardon.
Are you saying that you do make up such a mimeographed form?
Mr. A. L. Newbould: No, I'm saying, Your Honor, if I were.
Justice Abe Fortas: If you were to do that?
Mr. A. L. Newbould: If I were to do it.
Let's look at --
Chief Justice Earl Warren: Well, that would at least show, I presume, the -- the fact that the search was a -- was authorized and I suppose that if -- would you designate the -- the warrant would designate the extent of the search.
I suppose that if the city had a -- have a -- an ordinance based upon the experience of the city to the effect that certain things were fire hazards and they were very common in the city and they were investigated in.
I suppose when a -- if a man demanded a warrant, search warrant and the Court issued a search warrant, then one issued was a warrant for a general search of the -- of a house, it issued a warrant for the purpose of inspecting it in order to determine whether or not certain fire hazards existed there.
And that would be the end of it and he wouldn't be able to go in and look in drawers or doors and -- and things of that kind in his -- in his search, would he?
Mr. A. L. Newbould: This is the precise extent of his authority now.
And the question is, will he abuse his authority under the ordinance or will he abuse his authority under this so-called search warrant?
My answer is that if he's going to abuse it in the first place, he's going to it abuse it in the second.
Chief Justice Earl Warren: But the -- the extent of -- of the home -- of the building would at least know, would he not?
What the extent of the authority was that they gave them a search warrant?
Mr. A. L. Newbould: In our particular case I -- I think he knows any way when he shows up in his fire uniform.
These are not unidentified people.
Chief Justice Earl Warren: We're not taking just this man, we're taking -- we're taking people in their homes and in their -- in their businesses and they don't know how many -- how many -- how many inspections you say you have?
I have forgotten, it was mentioned, wasn't it?
How many you have in the City of Seattle or was it in the city of a --
Mr. A. L. Newbould: It was in the City of San Francisco.
Chief Justice Earl Warren: -- San Francisco?
How must an own -- owner know what they're looking for when they come in -- into his -- into their homes?
But if they have a search warrant says, “This man is a -- is a -- a fire marshal.
He's -- and they're going to your home for the purpose of determining whether there are the electrical fixtures are -- are properly installed or whether there are any fire hazards.”
And if he starts looking at some place else, you're going to have to say to them, “Well that --that isn't included in this warrant.
You're looking for that.”
But if a fellow just comes in and said, “Here I'm -- I'm here to inspect your home.”
He walks in and has quite blank to -- to look for what he wants and the owner doesn't know, it isn't limited by -- by any authority that's given to him that the owner knows anything about, how can he protect his rights?
Mr. A. L. Newbould: The best answer I can make to that is that the homeowner who will insist on a warrant will be the same own -- homeowner, who under our present systems, ask the inspector what's the extent of your authority.
And if they have any doubt as to it, they send him away to come back another day.
This is the ultimate protection and I submit it's a protection that's not fair with the warrant process.
And it's one that the judicial officer, the magistrate cannot import into the inspection process.
We lose more than we gain by an inspection warrant.
Chief Justice Earl Warren: Very well.
Rebuttal of Norman Dorsen
Mr. Norman Dorsen: I will -- I will --
Chief Justice Earl Warren: -- Dorsen.
Mr. Norman Dorsen: Thank you, Mr. Chief Justice.
I would like merely to say that I think the suggested solution to the problem that appellant urges is a fair and appropriate accommodation of the important interest of the private citizens' rights for security of his private property on the one hand and the undoubted and legitimate interest of -- of urban society, and of course eve -- even suburban society to inspect and that the purpose of urging the solution that I have upon the Court is in large part because it's just as easy, just as easy for the inspector to go and get a search warrant than arrest warrant.
And the fellow says, “You can't come in” why put him at his -- at his peril and into wrong peril with the criminal law, send the man to the inspector to a disinterested magistrates, have him present a colorable and valid administrative reason for the entry and then the legitimate interest of the municipality can be accommodated.
Justice Potter Stewart: Mr. Dorsen, I suppose your argument would lead to our requirement that a meter reader would have a search warrant to come in and read the water meter.
If he were a public official of the city -- city water system.
Mr. Norman Dorsen: Yes.
Justice Potter Stewart: And the -- the search warrant, in order to get a search warrant how -- would you have to allege as simply that you haven't read the meter in a month?
Mr. Norman Dorsen: That's right.
If he -- he's --
Justice Potter Stewart: What possibly is then is the purpose of the warrant?
Mr. Norman Dorsen: Well, I can answer that fast very easily by saying that some people who are searching, some people who are inspecting, may be doing it arbitrarily, may be doing it as part of harassment.
Secondly, the distinction between the ordinance in this case, the ordinance in -- in the See v. Seattle as compared with the ordinances we have had in the other cases before this Cour -- Court illustrates the extent to which municipalities are prepared to go and not providing notice.
The reason -- the answer to your question, it seems me, that one way to solve that problem is to give a man notice or make an appointment.
The English statute that was -- was cited in the -- in dissenting opinions in both Eaton and Price and Frank said that the man should call up and make an appointment.
Justice Potter Stewart: Well, that has nothing to do with probable cause.
Mr. Norman Dorsen: Right.
Justice Potter Stewart: That has to do with the householders' convenience.
And as --
Mr. Norman Dorsen: Well, that's true.
Justice Potter Stewart: -- suggested to you that the -- the present statute from the point of view of householders' convenience gives much preference to a warrant because a man armed with a warrant can come in despite the householders' inconvenience.
Mr. Norman Dorsen: That's correct.
As they -- I was just going to say that the very English, the English statute that was cited provides that you have to make an appointment, but if the man still refuses then you have to go the independent judicial magistrate.
Justice Abe Fortas: Will the meter readers, for example, have a right to enter your house?
Is there any statute or ordinance?
Mr. Norman Dorsen: I'm not sure, actually the water meters that I've seen sometimes are on the outside of the house and not in the dwelling --
Justice Potter Stewart: In New York, I gather, you don't have them?
Mr. Norman Dorsen: Not the water.
Justice Potter Stewart: That's for water, -- but I'm-- I'm hypothesizing a city water system where the meter itself usually belongs to the water company but it's located inside the -- the four walls a house.
Mr. Norman Dorsen: Well, the direct answer to your question is that the man knocks on the door and says, “I'm the water inspector.”
Justice Potter Stewart: Yes.
Mr. Norman Dorsen: And I want to see --
Justice Potter Stewart: Then he presents is credentials and (Voice Overlap).
Mr. Norman Dorsen: And he presents his credentials.
If the individual does not want to enter, he has to go somewhere and get authority that you just can't break into the house over his objection.
Justice Potter Stewart: Well, we're not talking about breaking into house --
Mr. Norman Dorsen: Well, breaking in any scheme or putting the man in terrible criminal conviction for not admitting him which was happen to Mr. See in this case.
Justice Hugo L. Black: Mr. Dorsen, suppose the inspector had known the magistrate, sworn that there was a local ordinance or statute which permitted him to make periodic inspections in the interest of safety, would you think that would be sufficient ground to issue a search warrant?
Mr. Norman Dorsen: I think he -- the way I -- I would answer that question, Mr. Justice Black, is you would have to say something one step more.
We have also to say that this particular inspection is pursuant to that plan.
Justice Hugo L. Black: I suppose you said that.
Mr. Norman Dorsen: I think the -- the last thing that he might have to say is what the plan was?
Justice Hugo L. Black: What the what?
Mr. Norman Dorsen: What -- what the plan of inspection was?
I think he -- he have to say, “We have a plan for inspection fire for one year inspections of this type of dwelling because it's a wooden frame house and it's in a neighborhood where we had --”
Justice Hugo L. Black: Do you think he'd have to say anything about it's being a wooden frame house?
Mr. Norman Dorsen: No.
We have -- well --
Justice Hugo L. Black: Another way of what I'm asking is that, do you think that in order to get a search warrant, it is sufficient to rely upon the judgment of the legislative body that periodic to the inspection one each year or two each year are necessary, and that in order to comply with that part, that that's our law, the inspector must now be allowed to inspect in this house.
Mr. Norman Dorsen: Well --
Justice Hugo L. Black: Would that in your judgment authorize a search warrant?
Mr. Norman Dorsen: Well, I'm not -- I'm not certain.
I think at -- as I said and I -- I think at least, he would have to show that this inspection was -- was pursuant --
Justice Hugo L. Black: Yes.
Mr. Norman Dorsen: -- to that kind.
Justice Hugo L. Black: Well I -- I'm assuming that.
Justice Byron R. White: I thought you'd said yes to this particular --
Mr. Norman Dorsen: I had -- had (Voice Overlap) --
Justice Byron R. White: -- case before this?
Mr. Norman Dorsen: I had said yes and I -- and now reconsidering it.
Justice Hugo L. Black: Now, assuming that to be the case, why would an ordinance which permitted the search -- search without a warrant but on the probable cause that -- creation of the periodic right to search, to inspect why would an ordinance be invalid?
Mr. Norman Dorsen: Well, I think that --
Justice Hugo L. Black: Which did the same thing that would be done in case of the issuance of the search warrant.
Mr. Norman Dorsen: Well, I don't think I would -- I would draw a distinction between that but I do think that the inspector would have -- I think that the key element is the fact that the person who wants to gain entry must go to the magistrate and swear that he is conducting the inspection pursuant to this plan and that he -- and that he give in -- in the warrant the -- the essential facts and I -- I, how far you'd -- you'd go for specificity, how far you'd require him to show that for example this plan was a plan relating to a specific neighborhood and defining the neighborhood and defining --
Justice Hugo L. Black: But it's just limited to the city.
You've got a right to make the search in order to discover fire hazards under an ordinance and you'll search, and you'll enter into the house.
And that that's what he wants to get in there for?
Mr. Norman Dorsen: I would permit the search in that case.
Justice Hugo L. Black: But well if that's the case.
Why is an ordinance invalid which provides for certainty in inspection upon the basis that periodical searches are necessary?
Mr. Norman Dorsen: I would say it is not invalid but I -- but the citizen is still entitled to the protection he gets by having the inspector go to the magistrate and affirm that the inspections taking place is part of that plan.
Justice Hugo L. Black: Why would he be if all he has to swear is precisely the facts upon which the legislation obeys?
Mr. Norman Dorsen: Well, it's impossible that the inspection was not taking place pursuant to that plan and the fact that he is prepared to swear to it and affirm that this is part of the plan for fire inspection of this community or -- or a neighborhood, is a protection of the citizen, that the -- that the individual is being kept, that the -- that the inspector is being kept from the inside of the premises without -- with what -- on the facts you've presented Mr. Justice Black, seems to me a reasonable administrative plan for assuring that fires will not take place.
Justice John M. Harlan: I suppose on the same argument, you are urging the Fire Chief saying that this time, he's making the periodic inspections and he shows that he's authorized to do so and that he's entitled do on A, B, C, D, E, would that suggest it?
Mr. Norman Dorsen: No, it would not under the -- under the suggestion I'm making and -- and the only thing --
Justice William J. Brennan: That is exactly the same concept I'm suggesting that the search warrant would grant him to do that.
Chief Justice Earl Warren: Mr. Dorsen, wouldn't it be one additional protection to the householder if he has a warrant?
A warrant would -- would indicate to what extent the -- the officer had a right to be in that house?
I suppose the search warrant you'd say that he -- he was authorized to enter the house for the purpose of inspecting the premises to see if these safety factors was there or if he just comes in on his own and he wants to -- to inspect the -- the house and he goes rummaging around in other -- other things, the -- the householder would have no -- no way to stop him or to say, “You can't go any farther than that, you haven't got the authority to do it.”
But if the warrant said that he could -- he could then challenge the man's right to do something that he wasn't entitled to under his inspection.
Mr. Norman Dorsen: It was beyond scope of the warrant.
Justice Byron R. White: Exactly.
Mr. Norman Dorsen: Right.
And I'd say, Mr. Justice White since I did answer your question yes before and now I did rethink it and I still would answer it yes.
Justice Hugo L. Black: Mr. Dorsen, may I ask you one other question.
Suppose one should believe that the regular routine annual practice of inspecting a fire hazard is within the power of the state, that's enough to justify an entry into the house.
How could he then say that the ordinance was invalid?
Mr. Norman Dorsen: Well, I don't think that the ordinance --
Justice Hugo L. Black: Are the law?
Mr. Norman Dorsen: -- invalid in what -- in what that I probably misunderstand your question.
I think that the point --
Justice Hugo L. Black: What I mean is if -- if the legislature has authorized inspection will be done under a system which does not violate the First -- the Fourth Amendment, how could we hold that that ordinance is invalid?
Mr. Norman Dorsen: Well, I guess my answer to that question, Mr. Justice Black, is that an essential part of the validity in such an ordinance is that upon the refusal of entry by the individual that the government has to go to the magistrate to gain --
Justice Hugo L. Black: Is -- how would you say that?
Mr. Norman Dorsen: That an essential part of the validity, a prerequisite to the validity and the ordinance that you describe is that even if it's tailored for daytime at reasonable times and so forth, that if the citizen says when the inspector comes, “I do not want you to enter”, that at that point, despite of the ordinance has worded you must go and get.
Justice Hugo L. Black: That would be required suppose the occupant wanted him to have to have a search warrant?
Mr. Norman Dorsen: That is correct.
Justice Hugo L. Black: Even though he could swear no more that the -- the best probable cause and the ordinance itself provided.
Mr. Norman Dorsen: And that this is part of the plan of the ordinance as the Chief Justice said, yes.
Chief Justice Earl Warren: Very well.