SABBATH v. UNITED STATES

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Argument of Murray H. Bring

Chief Justice Earl Warren: Number 898, Johnny Sabbath, Petitioner, versus United States.

Mr. Bring.

Mr. Murray H. Bring: Mr. Chief Justice, may it please the Court.

This case involves an important question of statutory interpretation with respect to a constitutionally inspired federal statue that governs the conduct of federal officers when they made or are required to break in to a private dwelling in order to affect another wise lawful arrest.

Also involved in the case is a question whether consistent with the Fourth Amendment federal officers may force their way into a private dwelling at night in order to make an arrest with other warrant under circumstances which did not excuse their failure to obtain the warrant.

The facts of the case are not complicated and maybe briefly summarized as follows; on Saturday evening February 19th, 1966, a man by the name of Edward Jones was entering the United States from Mexico at the San Ysidro, California port of entry.

He was stopped by custom officials and was searched, whereupon the customs officials discovered a container of cocaine concealed in his undershorts.

They immediately arrested him for violations of the narcotics laws.

And thereupon, they began a process of interrogation.

Initially, Mr. Jones denied that he was involved in this elicit transaction with anyone else but after about three or four hours of interrogation, he admitted to the customs officers that he had actually been taken to Mexico on the preceding day by a person named Johnny, that Johnny had hired him to pick up the narcotics and bring them back to Los Angeles for delivery to Johnny and that Johnny had promised to pay him $100 if he did so.

At that point, the customs officials transported Jones from San Diego to Los Angeles and at approximately at 3 o?clock in the morning, Jones in the presence of the customs officers try to telephone a number in Los Angeles which was written on a card that the police officers found in Jones?s possession when he was arrested, also on a card was the named Johnny.

No one answered that telephone call and three or four other attempts were made to call that number during the early morning hours of Sunday, February 20th and again no answer was obtained.

The officers then for some reason which is undisclosed by the record transported Jones back to San Diego.

At 3:00 PM on the following afternoon, the officers again invited Jones to try and call the number in Los Angeles.

On this occasion, the call was answered by a male voice on the other side of the line.

Jones identified himself as BJ and addressed the person on the other side of the telephone as Johnny.

He indicated that he was still in San Diego and that he still had the thing.

Johnny then inquired whether Jones had any trouble in crossing the line.

Jones indicated that he had not and Johnny said that he had been arrested when he had been down in Mexico and that was the reason he was curious as to whether or not Jones had had any trouble.

Jones inquired whether Johnny was going to be in hes apartment and when Johnny said he would, Jones said well I'll come up to Los Angeles to your apartment.

At that point, the agents did not attempt to verify any further any of the information which had been given to them by Jones who dwell all intents and purposes was an unreliable informant nor did they go to a magistrate in an effort to try to obtain a warrant for Johnny's arrest.

Rather they transported Jones to Los Angeles.

They went to the location where Johnny's apartment was.

They outfitted Jones with an electronic transmitting device and they returned the container of cocaine to Jones and sent him to Johnny?s apartment.

At this time the officers of which there were four or five in number took up positions near the apartment.

And they attempted to overhear the conversation that took place between Jones and people inside of the apartment.

Jones went to the apartment, knocked on the door and the door was answered by a woman who was visiting Johnny at that time.

Jones asked if Johnny was in and the lady said that he was and that she would get him.

Jones then went into the apartment and the lady closed the door to the apartment.

Now, this much of the conversation was overheard by the officers who were listening to the electronic transmitting device.

When Jones went into the apartment, the lady who was there called Johnny who turned out to be petitioner, from the bedroom and he came in to the living room and met with Jones.

The conversation that followed was not overheard by the police officers because there was music being played in the background and this drowned out their ability to hear the conversation over the electronic transmitting device.

Apparently, the officers in Los Angeles did not have available to them some of the more sophisticated means of bugging that this Court has just heard about and they therefore were frustrated in their efforts to hear what went on in the apartment and to make the recording of that conversation.

One of the officers did testify that he heard one of the people in the apartment mentioned the word ?package? though he could not identify which of the two people mentioned that word.

And the other person made a response, though he also could not identify or make out what the response was.

At this point after Jones had been in the apartment for approximately five to ten minutes, the officers decided that because they could not make a recording of the conversation that was going on within the apartment that they should then proceed into the apartment to make the arrest.

Three or four officers approached the door of the apartment.

The officer in charge of the group knocked on the door, waited a few seconds, when there was no reply, he turned the knob of the door, the door being unlocked he opened it and rushed into the apartment with his gun drawn.

He was immediately followed by two or three other officers at least one of who, also had his gun drawn.

There was no announcement by the police at least the record discloses that their was no announcement by the police that any of the officers announced who they were, what their purpose was or what their authority was before entering the apartment.

Once inside of the apartment, the officers observed petitioners sitting on the couch, dressed only in his underclothes and Jones sitting on a chair next to the couch.

As they entered one of the officers indicated that he saw a petitioner withdraw his hand from underneath the cushion of the couch.

They immediately announced that both petitioner and Jones were under arrest.

They took petitioner from the couch, placed him against the wall, put him in handcuffs, searched him, searched Jones and then undertook a general and comprehensive search of the entire apartment.

In the course of that search, they found the container of narcotics and under the cushion of the couch near where the petitioner had been sitting.

They also found in other rooms of the apartment certain evidence which was not introduced at petitioners trial but which was testified about specifically some squares, aluminum squares and some balloons which the police officer indicated were customarily used in the elicit trade of narcotics.

The officers then placed both petitioner and Jones under arrest and took them from the apartment.

Mr. Jones did not have on his person the $100.00 which he claimed petitioner had promised to give him if he had delivered the narcotics.

At the trial, when the government attempted to introduce the container of narcotics, the petitioners counsel objected in a rather general fashion.

He indicated that principally the police did not have probable cause to enter the apartment when they did to make the arrest.

He also objected to the fact that the police entered the apartment without a warrant and his discussion or his general lodging of the objection also contained a reference to the fact that the police broke into the apartment.

The District Court denied the objection, had admitted the narcotics into evidence and an appeal from his conviction.

The conviction was affirmed, the Court of Appeals sustaining the District Court's admission of the narcotics into evidence.

Now, the petitioner today principally contends that the arrest of the petitioner was unlawful and that the search which was conducted subsequent to that arrest was also unlawful thereby requiring that the narcotics should have been excluded from the trial.

The basic reason for the illegality of the arrest is the fact that the officers when they broke in to petitioner's apartment did not comply with the requirements of 18 USC Section 3109 which indicates that an officer may break in to an apartment to effect an arrest but only if he first announces his authority and his purpose for breaking in.

Justice Potter Stewart: Mr. Bring, Section 3109 by its terms applies only to what an officer may do to execute a search warrant and here this was an arrest without a warrant just for two reasons, 180 degrees different from what the statute seems to be addressed to.

But I gathered from reading the briefs that both counsel agreed that this is the applicable statue, am I right about it?

Mr. Murray H. Bring: Mr. Justice Stewart that is correct by its term the statue would not seem to contemplate an arrest without a warrant.

Justice Potter Stewart: Right.

Mr. Murray H. Bring: On the other hand, that specific question was raised in United States against Miller where the government conceded that the statute does apply to any arrest without a warrant and the Court specifically held that it does apply to that kind of arrest.

Justice Potter Stewart: Yeah, right.

Mr. Murray H. Bring: So that you might say that the statue has been extended beyond the specific language of the statute.

Now the government and the Court of Appeals below, both take the position that the statute does not apply in this case because there was not a breaking open of the apartment.

And the theory upon which their argument rests is best summarized at page 6 of the government's brief where it takes the position that in common understanding, break open connotes the forcible destruction of a locked door.

In other words, it is the government's position and it was not the position of the Court below that the word break open means only the use of force to gain access to a private dwelling and that unless force is used, the announcement requirement of Section 3109 is not applicable.

Your Honors, we take the position that this is a hyper-technical and detached overly-strained interpretation of the words break open and it's not consistent at all with the basic objectives which the announcement requirement of Section 3109 were intended to serve.

Mr. or Judge learned hand has indicated in one of his famous decisions that the art of interpretation is the art of proliferating a purpose.

And we think that if one analyzes what the purpose of Section 3109 is, what the purpose of the announcement requirement is, it makes no sense whatsoever as the government suggests to draw a distinction between forcibly breaking into an apartment and walking through a closed but unlocked door.

Justice William O. Douglas: I supposed they would -- as I understand their argument using a key is used for to open the door.

Mr. Murray H. Bring: Well, interesting a lot Mr. Justice Douglas that is the position of the government.

The Ninth Circuit itself has so held that if a police officer gains access by using a passkey to open the door that somehow that is brought within the purview of Section 3109 even though the government admits there's no force involved there.

Justice Potter Stewart: The force of you to turning the key is like the force in turning the door knob wasn't it?

Mr. Murray H. Bring: I think that absolutely correct Mr. Justice.

There it seems to me to be no difference if forces to be at all relevant in the application of the statutes, whether the door knob is turned by the force of the energy of the hand turning the knob or whether it passkey is use.

Justice Byron R. White: But you said the door was standing open?

Mr. Murray H. Bring: Well that presents a more difficult question Mr. Justice White.

I think that--

Justice Byron R. White: Well, in terms of purpose of what it was?

Mr. Murray H. Bring: Not in terms of purpose, no.

Justice Byron R. White: Would you make the same argument?

Mr. Murray H. Bring: I would make the same argument to this extent that the objectives of the statue are designed to ensure the privacy of the occupant of the home and to prevent violence which frequently accompanies unannounced intrusions into the home.

And also to ensure the presumption of innocence that every citizen enjoys.

Now, one of the door is open or closed or partially secured by arrested chain or whatever the situation maybe, those objectives it seems to me have to be served in every case unless there are some indication that the person in the apartment has voluntarily relinquished his privacy or has invited the police to come into the apartment.

Now, I think as is the case in most search and seizure cases, you have to look at the facts in every situation.

But I can easily conceive of the case in which the door would be open in which the statutory requirement should apply.

For example, a person may have come into his apartment and shut the door closed thinking that he closed it but in fact the latch didn?t catch and a gust of wind may have come along and opened the door again.

The person then goes into another room of the apartment maybe watching television, maybe eating dinner, the police come, they see the door open and they walked into the apartment.

Now, as far as the person inside the apartment is concerned, he doesn't know who those people are, he doesn't know why they're there.

He has not invited them into his apartment.

They have invaded his privacy, they have -- as far as he knows, they maybe burglars, they may burglars.

And they may elicit the same violent response that any unannounced intrusion into the home may elicit.

So there, the situation in my opinion where the fact that the door open does not eliminate the necessity from making the announcement require -- the necessity from making the announcement.

Justice Potter Stewart: Does the statute apply -- if you announce your purpose at the outside and you're not -- and there's no answer, you're not -- your purpose or -- and then you try the door and it opens and you go in there's three rooms in the apartment.

The doors are shut in both of the rooms, you have to do the same things to those doors or not?

Mr. Murray H. Bring: I think that a literal reading of the statute to would required you to do that because it applies both to outer and inner doors of the apartment.

Again, I can consider situations where the person maybe asleep in a bedroom and the door to which it's closed.

The fact that he didn't hear the knock of the outer door and the police then go in should not relieve the police, it seems to me that the obligation of exercising reasonable caution not to surprise and alarm the person who maybe sleeping in the bedroom.

As this Court pointed out in Miller, does not have unreasonable burden of the statute imposes upon the police.

All they have to do is announce who they are and why they are there and it seems reasonable to --

Justice Byron R. White: Are there any exceptions?

Mr. Murray H. Bring: Yes, I think there are some exceptions.

At least I can conceive the situations in this Court --

Justice Byron R. White: Do you have to talk about those here or no?

Mr. Murray H. Bring: I don't -- well, the government makes the argument Mr. Justice White that there were so called exigent circumstances here which excuse the police from making the announcement.

It's an open question as far as I know as to whether this statute permits exigent circumstances to provide an exception to the requirement.

In Miller, the Court held that that was open question.

However, in Ker against California, when a similar state statute was being considered and when the question was a constitutional requirement imposed upon state officers, the Court did find that the constitution permitted an exception for certain exigent circumstances.

Now, the only one that the government alludes to in this case is the possibility that the police were concerned over the safety of Mr. Jones who was in the apartment and whose conversation they could not hear about and also to the possible safety of themselves in going into an apartment but first having to announce their purpose and authority.

Justice Potter Stewart: Well the police knew that there was a kidnap victim being held in that apartment and reliably have been told by other residents in that building, do you think they - -those would be exigent circumstances?

Mr. Murray H. Bring: I can conceive of the situation like that where there would be exigent circumstances.

For example, they knew that the occupant of the apartment was heavily armed and had a prior record of use --

Justice Potter Stewart: What if they heard some shooting in the apartment when Jones was in there?

Mr. Murray H. Bring: I think that would be sufficient to excuse the announcement.

In my own opinion though, as I indicate the Court itself has never gone that far in interpreting the requirements.

Justice Potter Stewart: So what statute that the government rely on with which they based their theory for Jones for safety?

Mr. Murray H. Bring: There are no facts in the record Your Honor.

Justice Potter Stewart: Why don't you find it out from them?

Mr. Murray H. Bring: Well, I wish that the effort would be made because I'm not familiar with any facts.

The record discloses no facts to indicate that the police had any reasons or whatsoever to believe that Jones was in danger or that they themselves would have been in danger.

Justice Abe Fortas: But what would be basis, what would be the basis for the exception in the case Mr. Justice White talked about?

Mr. Murray H. Bring: The exception of the kidnapper.

Justice Abe Fortas: Yes, right.

Any other exception with the statute, statute then indicates an exception, does it?

Mr. Murray H. Bring: No, Your Honor, it does not.

Justice Abe Fortas: All right, but how can you read into it an exception for exigent circumstances?

Mr. Murray H. Bring: Well, I think your Honor that for the same reasons that the Court did so in Ker versus California while it's true they were not interpreting this specific statue.

The policy reasons which they articulated in both the majority and dissenting opinions in that case indicate that there are circumstances under which it would be unreasonable or unnecessary for the police to make the announcement.

The majority opinion in that case indicated that because the police had reasons to believe that the announcement would have facilitated the destruction of evidence in view of the defendant's prior part of conduct that the police were not required as a matter of constitutional principle.

Justice Abe Fortas: But that's a very different matter, isn't it.

Mr. Murray H. Bring: Yes, it is Your Honor.

Justice Abe Fortas: Ker versus California related to the constitutional requirement.

Here, we're trying to interpret a specific statue of the Congress.

Mr. Murray H. Bring: There's no doubt Your Honor that this Court does not have to go as far in permitting exceptions to the statue as were permitted in the current case when the similar requirement was then under the Fourteenth Amendment

Justice Abe Fortas: You can put that the other way that maybe this Court cannot go as far as we did in Ker.

Mr. Murray H. Bring: Well, Mr. Justice Fortas, I would certainly have no objection to the Court coming out with a broad principle in this case which and I think in fact that I think it should come out with as broad as principle as possible which would require the police to make the announcement in every case.

Now, it's not difficult to conceive of hundreds of different types of factual situations where making the announcement might be imprudent or might lead to the destruction of evidence or might lead to placing somebody in physical peril, that is not presented by this case.

And I think that the general principle ought to be that the rule of announcement should be imposed and that the burden should be on the government to establish through very clear and persuasive evidence that if an exception is to be applied that they fall within the scope of that limited exception.

There is no such evidence in this record Your Honor.

Justice Abe Fortas: Is there any legislative issue Mr. Bring that this is the way on what break in means, start on that broad topic?

Mr. Murray H. Bring: Your Honor, the legislative history of this statute is very sparse.

It refers only to the law of the State of New York at the time that the statute was adopted.

The law of the State of New York's legislative history is equally sparse.

However, the commentators who have examined the question and some recent authorities on the question have indicated that the policemen?s entry to execute a warrant or an arrest should be analogized to the entry of a burglar in the law of burglary.

And it's understandable that that analogy is drawn because in each case, the societal interest involved are the same namely to preserve the right of privacy of the occupant and to minimize the chances of violence which are attended upon unannounced intrusions into the home.

Interestingly, only within the last two months, the Supreme Court of California has rendered a decision which is squarely on point with this case.

In interpreting Section 844, the California Penal Code, which is virtually identical to Section 3109, the Supreme Court in an opinion by Mr. Justice or by Chief Justice Trainer held that the statute applied when a police officer entered to a close but unlocked door of a public dwelling.

And it did so on precisely the same policy considerations that we are urging here today and also by analogizing the entry of the police officer to the entry of a burglar in the law of burglary.

Justice Byron R. White: What if Jones had been a police agent?

Mr. Murray H. Bring: Pardon me?

Justice Byron R. White: If Jones had been in police officer?

Mr. Murray H. Bring: You mean in disguise?

Justice Byron R. White: Well, yes, he wanted to buy some narcotics and came here to buy them --

Mr. Murray H. Bring: Well, no I think Mr. Justice --

Justice Byron R. White: And well as soon as he had then sold some narcotics, he arrested him.

Mr. Murray H. Bring: Right.

I think in that situation Mr. Justice White, we have a case similar to Louise which this Court decided some years ago and --

Justice Byron R. White: Well, not too long ago.

Unknown Speaker: No, not too many years ago, and I think that -- I think that in that kind of a situation as the Court indicated in Louise, the occupant of the house had voluntarily relinquished his privacy --

Justice Byron R. White: What if they're selling narcotic.

Mr. Murray H. Bring: When he turned it into a commercial establishment for the sale of narcotics.

Justice Potter Stewart: And what was Jones doing with this fellow?

Mr. Murray H. Bring: Jones was allegedly delivering narcotics.

Justice Byron R. White: Yeah, he was buying instead of -- they thought he was buying --

Mr. Murray H. Bring: He was selling -- well he was -- well I know that's not correct and he wasn't selling and he wasn't buying.

He was a runner.

Justice Byron R. White: Well, let's assume that Jones -- if Jones had been a police officer he could've -- under Louise, he could've arrested him right there on the spot as soon as he bought some narcotics from him.

Mr. Murray H. Bring: I think that's correct Your Honor and I think the reason for that is that the officer in the disguise of a narcotics peddler or a narcotics purchaser had gained access to the apartment for the purpose of conducting elicit narcotics trade and the occupant of the apartment as the Court said, of course.

Justice Potter Stewart: And that Jones then -- that the Jones could have arrested him could he have before he arrested him with the door and opened it and said come on in to the other police officers outside?

Mr. Murray H. Bring: I don't -- I don't believe he could have done that, no, your Honor.

I don't think at that point -- his entry into the apartment was for a very limited purpose which was to engage in illegal drug activities.

He did not stand in the place of the occupant of the apartment at time.

It was not his place to invite other people into the apartment.

Justice Thurgood Marshall: How soon have he got in when the arrest made?

Mr. Murray H. Bring: Mr. Justice Marshall that was about 10 minutes between five and 10 minutes afterwards.

Justice Thurgood Marshall: What was going on all that time?

Let me put the question definitely, how soon after they went in the door did the occupant see them?

Mr. Murray H. Bring: Immediately.

The arrest was made -- I may have misunderstood your question sir.

The arrest was made immediately upon the entry of the officers into the apartment.

Justice Thurgood Marshall: So, what was the difference between them announcing outside and announcing inside in time?

Mr. Murray H. Bring: Well, they never did make an announcement outside.

The difference in time was probably just a question of a few seconds.

Justice Thurgood Marshall: And that's material?

Mr. Murray H. Bring: I think it is Your Honor because when they barged into the apartment, they were in plain clothes as this is usually the case in narcotics cases.

The petitioner didn't know if they were police when they came in with their cons --

Justice Byron R. White: With water pistols in their hand?

Mr. Murray H. Bring: Pardon me?

Justice Byron R. White: Did they think they have water pistols in their hand --

Unknown Speaker: No, they were -- I think he knew they were revolvers but he might have also thought they were members of the mafia or some other people who had come to do them injury as is frequently the case in underworld activities -- the person who has intruded upon does not know if the people coming in are police officers or other criminals who have come to --

Justice Thurgood Marshall: Well, how soon did he knew they were police officers?

Mr. Murray H. Bring: Within a matter of seconds after their entry.

Justice Thurgood Marshall: Then, they've got a few seconds either way.

Mr. Murray H. Bring: That's right.

Justice Thurgood Marshall: That the same thing would have been accomplished if (Inaudible) they read the statute too.

Mr. Murray H. Bring: They had announced too they were and who their purpose was.

But let me just change the facts for a moment if I may Your Honor.

Assume that Mr. -- the petitioner was standing in the apartment with a gun in his hand for some reason and the police officers barged into the apartment without announcing who they were, the petitioner at that time even though there may have been only a few seconds difference might have shot at those individuals because he did not know who they were.

He did not know what their purpose was.

But if they had been police officers and announced who they were --

Justice Thurgood Marshall: That is to call on the purpose of the statute is to protect the officer.

Mr. Murray H. Bring: Part of it is to protect --

Justice Thurgood Marshall: But if the officer doesn't need that protection it's just too bad for him.

Mr. Murray H. Bring: But part of his is also --

Justice Thurgood Marshall: Right?

Mr. Murray H. Bring: Yes, well I --

Justice Thurgood Marshall: And that's not involved here.

Mr. Murray H. Bring: Well --

Justice Thurgood Marshall: But what is involved here is if he had announced outside, this case wouldn't be here because in narcotics it would have been there under drain.

Mr. Murray H. Bring: That doesn't necessarily follow Your Honor.

It would've taken the police two or three seconds to announce as it did took him two or three seconds to come in.

It doesn't always happen that the narcotics are thrown down the drain and this Court itself has recognized that simply because we're dealing with narcotics cases there's no reason to establish a special rule with respect to the application of Section 3109.

Justice Potter Stewart: Mr. Bring excuse me.

Justice Thurgood Marshall: Or Jones could have been dead?

Mr. Murray H. Bring: They had no reason to believe that Jones was in any danger Your Honor.

Yes sir.

Justice Potter Stewart: Does that 3109 apply to all federal officers or just to some?

Mr. Murray H. Bring: I believe it applies to all federal officers Your Honor.

Justice Potter Stewart: All federal officers who are authorized to --

Mr. Murray H. Bring: To make arrest.

Justice Potter Stewart: To make arrest or to execute a search warrant, I guess.

Mr. Murray H. Bring: That's correct.

Justice Potter Stewart: Actually.

Mr. Murray H. Bring: Mr. Chief Justice may I reserve the remaining portion of my time?

Chief Justice Earl Warren: Thank you Mr. Bring.

Mr. Martin.

Argument of John S. Martin

Mr. John S. Martin: Mr. Chief Justice may it please the Court.

Mr. Bring has made a rather eloquent argument that the arrest here was invalid because of the failure of the agents involved to announce their purpose before entering the petitioner's apartment.

However, at the outset I feel called upon to point out to the Court at that very eloquent argument was not made in the trial Court.

To that reason, that issue should not be considered by this Court.

Now, in making this argument in this case, we're not just merely seeking --

Justice Potter Stewart: Mr. Martin the petitioner was decided in what Court?

Mr. John S. Martin: It was raised in the Court of Appeals.

Justice Potter Stewart: No, my question was --

Mr. John S. Martin: It was decided by the Court of Appeals.

It was decided --

Justice Potter Stewart: But isn't it before us?

Mr. John S. Martin: I would think not, I think under the analogy to the (Inaudible) decision that the problem is that this argument depends on the particular facts of the case.

And petitioner's failure to make this contention in the District Court deprive the government of the opportunity to make the record on which this Court could adequately judge, one; whether or not there was or was not an announcement of purpose.

I think Your Honor's opinion in Warden v. Hayden recognizes the fact that quite often the fact that an agent doesn't testify or policeman doesn't testify to a particular fact, doesn't necessarily mean that that fact did not occur.

I think anyone who's tried a lawsuit realizes hard enough to get witnesses to testify the facts of the material to be issued before the Court and it often happens that facts and not the material are not covered in testimonies, that?s a possibility here.

Justice Abe Fortas: But you don't really make this argument in a brief, do you?

You're referred to the point that this was -- objection was not raised at the --

Mr. John S. Martin: Yes, we do refer to it in the brief and we cite the (Inaudible) case which stands exactly this principle.

Justice Byron R. White: Do you refer to this in the Court of Appeal, did you ask the Court of Appeal to remand it so you can make the piece of the factual record?

Mr. John S. Martin: I'm not sure whether that was done in the Court of Appeals Mr. Justice White.

Justice Byron R. White: I don't notice the Court of Appeals say that the government objects for considering this that we don't think it should be technical or something like that.

Mr. John S. Martin: Well, I think it is important Mr. Justice White --

Justice William J. Brennan: It has been raised at the opposition.

Mr. John S. Martin: Yes, we did.

Justice William J. Brennan: Okay.

Mr. John S. Martin: I think it's important particularly in light of the whole question that is raised in the last part of Mr. Bring's argument concerning the possible exigent circumstances that might have justified why the agents -- if we assume from it they didn't announce.

Why didn't they?

Well, of course Mr. Bring said the record doesn't contain anything.

Well, I'll come to -- wanted to minor items in the record they do have some bearing on it.

But generally, the reason, the record doesn't contain anything on this issue is that there was no motion to suppress made prior to trial.

The first time any mention of a move to suppress this evidence came was at the exact close of the government's case after the arresting agent had testified and then cross-examined.

It was at that point, that counsel got up and his objection appears at the page 28 or 29 in the record.

And it is just clear from reading that objection that in making the objection he in no way prior to the prosecution or the Court -- that he was objecting to the manner of entry.

To clear from reading his objection, the only thing he was focusing on was the presence or absence of probable cause.

Justice Potter Stewart: And where is this?

Mr. John S. Martin: Page 28 to 29 of the appendix.

Justice Potter Stewart: Oh, yes.

Mr. John S. Martin: Now, I think that we have here what was present in (Inaudible) where the government attempted the argument in this case that even though the arrest warrant was invalid, the Court should consider it whether or not the arrest was proper on the basis of probable cause which the aids may have had.

In that case, this Court speaking to Mr. Justice Harlan said, to permit the government to inject its new theory into the case at this stage would unfairly deprive the petitioner of adequate opportunity to respond.

That's exactly what's happened here, the failure of the petitioner to make the objection of the District Court where the record is made, deprived the government of the opportunity to show exactly what happened at the time of that arrest and the exact reasons why the agents acted as they did.

Justice Byron R. White: But you've said Mr. Martin you do not know whether this question was argued in the Court of Appeal?

Mr. John S. Martin: That's right.

Justice Byron R. White: Now, the Court of Appeals have to reach out to cite a view.

Mr. John S. Martin: Well, I think that the Court could --

Justice Byron R. White: Well, if the petitioner is certain, I mean the appellant in the Court of Appeal --

Mr. John S. Martin: No, he said the appellant raised the question --

Justice Byron R. White: He raised it and --

Mr. John S. Martin: And the client Mr. Justice White that I was not sure whether or not the government and the Court of Appeals came out of the Court that the record was not adequate to reach the full merits.

Justice Byron R. White: You didn't come back and say that the Court of Appeals, it should not be considered here.

Mr. John S. Martin: That I'm not sure of.

Justice Potter Stewart: Mr. Justice White I --

Justice Byron R. White: But what if you did --

Mr. John S. Martin: Well, I don't think that that should determine the issue when you have problem here, as I said --

Justice Byron R. White: If you met the appellant on the merits of that question, on the record whatever the record is, isn't that a difficult --

Mr. John S. Martin: Well, I suppose it is somewhat difficult but I do think when you have a situation such as this where so much depends upon the record.

I would assume I would agree with you totally on the issue of whether or not there was an announcement.

I think if we accept in the Court of Appeals that stated the record on that then yes, but I think the whole problem of the exigent circumstances is one that so clearly depends upon the record.

And so clearly not developed here, there is testimony in the record and he said I knocked and went in.

Justice Byron R. White: If you reverse the case, they reversed the Court of Appeals on just on this record that doesn?t propose the possibilities that there are more fact that have been put in this record.

Mr. John S. Martin: That's correct.

I would like to turn into the merits of the claim that petitioner has -- the petitioner contends that because the agents did not announce their purpose when they entered the apartment the arrest was invalid.

We submit two contentions in response to that.

First, we contend that nothing in either the constitution, the case is decided by this Court where the relevant statute requires an agent who's affecting an arrest to announce his purpose before opening an unlocked door.

Second, we contend that even in this record, there are sufficient facts to show that the agents would be justified in not announcing their purpose before entering the apartment in this case.

First I think I'd like to address myself to the statute if I may.

I think both parties before the Court have conceded that in general, the principles enunciated in the statute governed the decision before the Court in this case.

I think this was recognized in Miller.

I think it might occur where we accept the fact that the constitution, the requirement of announcement has constitutional overtones.

However, I don't think having said that, that we can necessarily accept the fact that this statute totally controls the question of arrest.

Obviously, the statue was not drafted with the problems of arrest in mind and in response to Mr. Justice Fortas question about the statue and it does not say anything about an exception for agents who might be endangered.

Their own lives might be in danger in affecting the arrest.

It does refer to people who might be inside when the search is being conducted and might be in danger.

I think the reason for this is clear that the Congress was not concerned, was not addressing itself to a search situation.

So that I don't think that we can say the statute completely controls the situation here.

I do think that in so far as it talks about the need to announce the purpose before breaking in, it embodies a concept which certainly in so far as the federal Courts are concerned this Court decision in Miller makes clear is a governing standard and as I say has constitutional overtones.

Justice Thurgood Marshall: Mr. Martin, would you tell me the difference between the turning of the key, passkey and the turning of the knob that makes one to break it and the other not?

Mr. John S. Martin: Yes Mr. Justice Marshall, I think that the difference is in what is involved here.

One, I think the question is Mr. Bring has argued in his brief that the Fourth Amendment protects privacy not property.

Certainly, that's conceded by the government in all situation, we are talking about the right of the government to enter.

The Fourth Amendment said some of the requirements when they can enter and when they can breach a person's privacy.

When a private premises can be invaded by the government.

So in so far as it requires a warrant or arrest pursuant to probable cause to justify the intrusion, that's clearly concerned more with privacy than property.

I think the historical development of the announcement rule as is set forth in our brief indicates that that part of the law of search and seizure is more closely related to the question of property than privacy.

But certainly it does have some function with regard to privacy.

In that, it gives notice to the person with and that the agents are seeking -- someone is seeking to enter.

But it's a fairly limited protection of privacy since the agents have the right to enter immediately.

So I think there's no question that you will here face with the problem of drawing a line.

I would concede that if the agents open a locked door with a passkey that is breaking.

I think --

Justice Thurgood Marshall: What is the real difference that when he locks his door he doesn't expect somebody to either break it or use a passkey?

Mr. John S. Martin: Exactly.

I think that when the person locks the door --

Justice Thurgood Marshall: He expressed it might open.

Mr. John S. Martin: That's right.

I think that it's common experience.

I think that the rule that says that when you open an unlocked door, that's not a breaking.

It does not increase the risk of invasion of privacy beyond that which is expected in the normal social and business setting.

I think that most people I think it's common experience if you go to someone's apartment or home looking for them, expecting them to be there, you knock on the door, you receive no response, it's not un -ordinary for people in that situation to open and try the door.

And if it's open to walk in and perhaps went inside to call out but the person has the right to protect his privacy if he wants by locking that door.

And once he has done that, he's indicated to the world that he wants his privacy protected, and he doesn't want people coming in, and I think that's the distinction that exists here.

I think also you have to distinguish the case here on the basis of that -- the statute, the rule is designed to provide guidance to law enforcement officers in making an arrest, executing a warrant.

Justice Thurgood Marshall: Would you say that in a home where there are a number of children, and the doors were left open or left unlocked so that the children could run in and run out anytime of the day, that they wanted to come in the house for one reason or another, that that home was deprived of the benefit of this statute?

Mr. John S. Martin: Well, I wouldn't say deprived.

I think that that home is a home that has taken the risk because it wants to allow its children to go freely, their children and other children, and other people coming to the door may open the door.

Justice Thurgood Marshall: Taking the risk against what, lawlessness?

Mr. John S. Martin: Not lawlessness.

I know, I don't think, I think that it takes the risk that people in society who come to the door, find no one, knock, will open the door.

That's what was done here.

Justice Thurgood Marshall: You mean to say that the failure to lock your door is an invitation to anyone to come in?

Mr. John S. Martin: Well, I think that it may not be an invitation to anyone to come in but it has to reasonably expected that that may happen.

Justice Byron R. White: This is like the party night?

Mr. John S. Martin: Well, I think that it -- there is some question about the?

I think this Court's opinion in Katz certainly makes clear that the Fourth Amendment is concerned with what a person's reasonable expectations will be, and I submit to the Court that a person's expectation that nobody is going to come into his apartment is much greater when he locks the door than when he leaves the door open or he leaves it ajar.

Of course, with dealing and you know, it's a fine line that has to be drawn somewhere.

But I don't think --

Justice Thurgood Marshall: Why don't you draw it according to the statute?

Mr. John S. Martin: Well, I think if I'll turn to that Mr. Chief Justice, I think the statute contemplates more than just opening an unlocked door?

I think that the common law and history of the statute, the constitutional requirement, indicated that the sheriff at common law was justified that he only had to announce his purpose if he was physically breaking into the premises.

I think that you'll have to read the statute --

Justice Thurgood Marshall: Are there cases supporting that?

Mr. John S. Martin: Yes, the --

Justice Thurgood Marshall: Your argument is supporting that?

Mr. John S. Martin: Well, Miller doesn't deal with -- I'm sorry, I though you said if you said did our case didn't support that.

I thought -- no case before this Court has ever considered the issue.

I think there are cases, we've cited them in our brief.

Symayne's case which we cite for example, indicates clearly that the common law, the sheriff did have the right to go into an unlocked door and that it only had to announce if the door was locked, before he broke in.

I think the statute itself in its own terms when it talks about breaking not only the door, but any door inside, or anything contained therein, clearly indicates that Congress was contemplating some forcible type of entry because I don't think that normally the agent would expect once he was inside of premises and wanted to open the door, before using the force to pull that door open, he had to announce his purpose.

I think as Mr. Justice White pointed that out.

I think that the thing that has to be kept in mind, with regard to this requirement, to direction to law enforcement officers.

And I think we have to read the statute then, as it would reasonably be understood by the officer who is executing the warrant of making the arrest.

And I can't believe that the agent who opened the unlocked door in this case thought that he was breaking into the apartment.

That fact is somewhat corroborated by testimony at the trial.

On page 25 of the appendix, the agent who was the chief agent in charge of the investigation who made the arrest was being questioned, and on cross-examination by petitioner's trial counsel -- and counsel said,?

by the way, how is Mr. Sabbath dressed when you broke into the apartment??

The agent answered by saying.

when we entered the apartment, Mr. Sabbath--?

And said how he was dressed.

I think the agent resisted the suggestion in his answer that they broke into the apartment.

Justice Byron R. White: These were the customs agents, weren't they?

Mr. John S. Martin: That's right.

Justice Byron R. White: They work out of the treasury department?

Mr. John S. Martin: That's correct.

Justice Byron R. White: Do you know whether they get the same instructions that the FBI gets?

Mr. John S. Martin: I would not think so.

Justice Byron R. White: Do you know whether they get instructions as to what they're supposed to do when they want to enter somebody's dwelling place?

Mr. John S. Martin: They do get -- I know that they do have courses for them, how detailed, you know, before they are assigned.

I have it myself participated at some of those.

But I don't know how detailed they get in their instructions.

Justice Thurgood Marshall: I understood Mr. Bring to say that the word break.

in this statute and statutes like it had been construed in other statutes as equated to the word break in the burglary statutes.

Is that true?

Mr. John S. Martin: Well, I think that there had been -- there's been some -- I think Mr. Bring said not in this statute, but that there had been some of the commentators had suggested that it should be given that same construction.

Justice Thurgood Marshall: Suggested, or decided?

Mr. John S. Martin: Well, I don't -- I think there have been cases in the District of Columbia Circuit which had held that it is the breaking to open an unlocked door.

There are cases in the second and the sixth and at other cases in the Ninth Circuit which held that is not the rule.

No case decided by this Court has passed on a question.

I would submit that the considerations involved, where you're talking about burglary, are entirely different from the considerations that are involved when you're talking about the right of an agent or police officer to arrest.

The burglar has absolutely no right to enter an apartment.

By the terms of most burglary statutes, it only applies when he is not only entering, but entering for some unlawful purpose.

So the society has every right to prevent the entrance of the burglar, and has every right to apply its laws very rigorously to prevent his entry.

The other hand, an agent going to search or to make a valid arrest, has a right to be admitted.

He cannot be excluded, so that the context is so entirely different that I don't think that there is any reason to construe the use of the word as the same in both situations.

I think -- well, it might be argued in the state case that a state policeman dealing with the question of burglary on a day to day basis should understand breaking as a -- as it's understood in the burglary statute.

We are here, dealing with the statute directed, to provide directions for federal officers who don't handle common law crimes such as burglary.

There's no reason to suspect that those agents will have in mind the concept of breaking as it's used in a burglary statute when they read the statute, and try and conform their conduct to the standards which it prescribes.

I think that they would understand.

The agents who made this arrest would have understood the statute as to not require an announcement, because I don't think they considered that they were breaking into this apartment when they opened, entered through the unlocked door.

However, even if this Court were to reject our contention in this regard, and hold that an announcement is required before opening an unlocked door, I think there are circumstances here which would have justified the officers in breaking into this apartment without announcing their purpose.

Now, here again, I must state that because this was not developed -- this contention was not developed in the trial Court -- the record is only scanty on this.

We have to lean through and find passages where the agents weren't concerned about this question, but which where they may have mentioned the fact, which throws some light on the subject.

There are two such passages contained in the record.

First, there is I think the entire posture of the record.

At the time the agents entered, they knew that the informant was inside.

The informant had been inside for five minutes.

I don't think it would be unreasonable for the agents in no circumstances, to realize that if they knocked, and announced that they were there to arrest, that the petitioner might have immediately expected that the agents upcoming so closely on Jones's heels, it was obvious that Jones was working with them.

And if petitioner had come to that conclusion, then the agents could have expected that he might, if he was armed, take some effort either to injure Jones, or to use Jones as a hostage, in an attempt to resist arrest.

I think also when you're dealing with a crime such as a narcotics violation which carries such heavy penalties --

Justice Potter Stewart: You're saying that just like -- if the petitioner, if the police had announced their presence and the fellow had said -- petitioner had said, get away from here, or I'll kill Jones, they could have broken in.

Mr. John S. Martin: That's right.

I think that they could have feared that he might realize why they're going in, and take some action to harm Jones.

And I think rather than take that risk of harm to Jones they were justified in going in without announcing their purpose.

I think that it's also possible, as I say that when you're dealing with something like a narcotics statute, which has mandatory five-year penalty, and penalties running up to 20 years, it's not unreasonable for the agents to assume that if they announced their purpose, the party within may take some action to resist arrest.

Justice Thurgood Marshall: Would you have to say that in narcotic cases all the police have to do is to send in an undercover man into the -- into some quarters and wait a few minutes, and then break open, break down the door and go in and arrest him, on that same theory?

Mr. John S. Martin: Well, I --

Justice Thurgood Marshall: If you don't, how do you distinguish between the ordinary case and this case.

Mr. John S. Martin: I suppose Mr. Chief Justice that when you have an undercover agent inside, it does add an element of risk that the agents have a right to consider, with all the other circumstances they may know, as opposed of if we were writing on a totally clean slate there might be room for argument that anytime agents are going to arrest for a serious crime, where there is -- there might be some basis for saying that they shouldn't have to announce their purpose.

I looked at the only statistics I could find on this with the FBI statistics for 60 to 66, a 105 policemen were killed in making arrest.

I think that that's when you realize that there is an incident of violence accompanying attempts to arrest people for serious crime, that that is something that the agent should have a right to consider.

Now, maybe that they would know -- they would, from what they know about the defendant, they would know they have no reason to fear.

But I don't think that that was the case in this case, and I would like to point that the only two things in the record, that, I think in any way, bear upon what the agents were thinking about at this time.

The first is the testimony of agent Hopkins which appears at page 26 of the appendix, when he was asked what happened when he entered.

And he said, Upon entering the apartment, I had my gun drawn.?

Obviously, the fact that he had his gun drawn is some indication of his state of mind that there was danger involved in this situation.

He wasn't going in to arrest somebody for income tax evasion, or failing to file an income tax return.

He was going in, in a situation where he believed there was danger.

The other factor that appears in the record, which also --

Justice Byron R. White: Do you know how long he had been in that --

Mr. John S. Martin: I believe -- I'm not sure if it appears in the appendix.

I'm quite sure that the normal initial questioning as his -- how long he has been on duty, etcetera.

And I think I've -- I did read that on the -- in this case, I cannot lay my hand on it, though.

Justice Byron R. White: I mean, had he been a seasoned officer?

Mr. John S. Martin: Oh yes, he was.

And this was that -- he was a customs agent.

He was in charge of the investigation.

He was the senior agent on the case.

And the other point I would like to just point out to the Court, the other piece of testimony of which bears on this is the testimony of the customs inspector, Port Investigator Carter, who testified -- it appears on page 46 of the appendix.

He testified that when he went in to the apartment, he immediately went over, he noticed Jones sitting on the couch.

So Jones, with his hand under the cushion, immediately went over, and removed -- I'm sorry, not Jones, the petitioner.

So the petitioner was sitting on the couch with his hand under the under cushion, he went over, and immediately removed the petitioner from the area of the couch.

He was asked why he did this, and his answer was, it appears on page 46, I didn't know particularly what was underneath the cushion.

My feeling was that possibly, it could have been a weapon of some type.

So, it's obvious that at least to this member of the arresting team, there was some reason to suspect or to fear that the petitioner was armed.

It's obvious that the agent in charge, who went in with his gun drawn, was expecting some danger.

The situation just on its face does indicate there is a substantial danger, and if the petitioner is armed, he will either resist arrest, or injure the informant, who has been left in the apartment.

I think that under the -- that these circumstances would justify the officers in not announcing their purpose before they entered, even if the door had been locked.

And for that reason we submit that the manner of arrest here was entirely proper.

Justice Byron R. White: Do you know whether there had been any proposals to amend the statute in the congress in the last several years?

Mr. John S. Martin: I do not know of any Mr. Justice White.

Justice Potter Stewart: I gather Mr. Martin, first of all these is an exigent circumstance's exception.

Do you read that in the statute that it hasn't yet been decided here, has it?

Mr. John S. Martin: No.

I think -- well, there are some indications that -- it's says, so far, it was left open in Miller.

The Court recognized that it had been held in some instances.

That was, in so far as this case was concerned, I believe Your Honor's opinion in ker -- of course not dealing with the statute, expressly recognized the right to protect a person within.

Justice Potter Stewart: But that's, as a matter of fact the conclusion of the congress.

Mr. John S. Martin: That's right.

But here again, I would --

Justice Byron R. White: Probably that restricted the rule of congress.

Mr. John S. Martin: Well, here again, I would point out that I think it's -- that the full statute need not necessarily apply here.

We're talking about a statute that is drawn to cover the execution of a search warrant.

Justice Byron R. White: You're talking about an arrest warrant.

Mr. John S. Martin: That's right.

That congress -- I'm sure that Congress focused its attention on arrest specifically and thought that they were dealing with a statute that would totally govern the arrest.

They would have focused on this problem.

I'm sure that the congress would not expect that the FBI should before announcing -- arresting any one of the 10 most wanted men in the country, knock on the door, and tell them who they were and what they were there for.

So, I don't think that you can apply this statute over fully.

I do think that in so far as it talks about breaking in what, and enunciates the -- you know, what a breaking is, or gives any indication of that I think it embodies a constitutional standard which should be applied.

But I don't think that the fact that it doesn't provide an exception here, should be held controlling.

Justice Potter Stewart: (Inaudible)

Mr. John S. Martin: Well, I think that these -- I think the statute is only is a guideline.

I think that the statute that the Court in Miller looked to this and said that the statue involved general principles.

I don't think that the statute is per se controlling, no.

I think it's control -- is only indicative of what the law really is the constitution requirement is, I think it embodies the constitutional requirement in so far as breaking is concerned.

I don't think it involves so many exceptions that might exist under the constitution, sir.

Unknown Speaker: (Inaudible)

Mr. John S. Martin: That's correct.

And that's why it's never clearly been framed because in Miller, it was more supervisory, that the opinion was cast more in supervisory terms.

Of course in Ker, the statute didn't apply.

It's the only two cases that really considered this issue previously.

Justice Thurgood Marshall: Mr. Bring?

Rebuttal of Murray H. Bring

Mr. Murray H. Bring: Mr. Chief Justice may it appease the Court.

I'll just take a moment or two to respond to a couple of the points Mr. Martin made.

First, with respect as to whether or not this question is right for a decision by this Court, I think the dispositive answer to that Your Honors is just the fact that the Court of Appeals below was met with the same argument by the government, and they undertook to pass on the question on its merits, and to render a decision which was contrary to the rulings of the Court of Appeals for the District of Columbia thereby presenting a clear conflict between circuits on this question.

In a similar situation, in Jones versus United States, 362 US, the Court of -- this Court decided to decide a question which had not been properly been raised at the trial Court, in fact, involving the very same statute on the ground that the Court of Appeals had undertaken to decide the question on the merits.

I think the same result is required in this case.

But beyond that, the record, it seems to me, it makes it perfectly clear that the two contingencies which the government has indicated should be further explored or should have been further explored at the trial, are not really -- do not cast any doubt upon what actually happened when the police officers went in.

There's no doubt from the record that the officers did not make any announcement whatsoever.

The officers testified at great length about the events and circumstances which led up to their entry into the apartment, and how they entered the apartment.

And it's perfectly clear from the testimony of the Officer in Charge on page 21 of the appendix, that no announcement was made.

In fact, he says.

I knocked on the door, waited a few seconds, and no answer came from within, so I opened the unlocked door, and came into the apartment.

Now, surely, if he had made an announcement in describing how he entered the apartment, he would have indicated that.

In addition with respect to the so-called exigent circumstances that the government realized upon the record, simply does not show that the police had any reason whatsoever to believe that either Jones or themselves were in any peril.

The record merely indicates that they were frustrated in their efforts to make a recording, and they decided to go into the apartment.

Finally Your Honor, while I've had not -- not had a chance to discuss the second point in our brief, I would call the Court's attention to it.

I think that this case indicates a flagrant disregard on the part of the officers for the warrant procedure and should not be sanctioned by the Court.

Thank you, Your Honors.