HARRIS v. UNITED STATES

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Argument of Paul H. Weinstein

Chief Justice Earl Warren: Number 92, James H. Harris, Petitioner, versus United States.

Mr. Weinstein.

Mr. Paul H. Weinstein: Mr. Chief Justice, may it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals for the District of Columbia reviewing judgment -- the decision of that court.

The issue presented before the Court today is may a property which was seized from the petitioner's automobile during a general administrative search at a time subsequent to petitioner's arrest after his automobile had been impounded by the police and towed where police -- precinct lot some four or five miles from the place of arrest while the petitioner was in custody and under lawful arrest at the police station be received in evidence against the petitioner consistent with the Fourth Amendment with the search of the automobile and the seizure of the property as performed without a warrant.

The regulation promulgated by the Metropolitan Police Department in this case is cited on page 3 of my brief.

During the late evening hours of August 29th, 1964 at approximately 11:45 PM that evening, a York robbery occurred in the 5500 Block of 13th Street, Northwest Washington DC.

Among one of the articles taken from the victim that evening was a registration card to his automobile bearing his name and identification of that automobile.

An off-duty police officer at approximately at the time of the robbery observed three colored males running North on 13th Street and enter a Ford automobile.

The officer wrote down a description of the automobile and the tag number.

He phoned this description in to the sixth precinct approximately five to 10 minutes after he observed the three males running North on 13th Street.

The next day another police officer was assigned to investigate this robbery.

And at that time was given a description of the automobile and the tag number.

The police officer at that time checked with the Motor Vehicle Department of the District of Columbia and ascertain that the petitioner in this case was the owner of that automobile and also that the car was registered to a premises in the vicinity of the 2500 Block of M Street, Northwest.

The police officer preceded to the area the 2500 Block of M Street Northwest, at which time, he saw the petitioner in this case attempt to enter his automobile.

The officer testified that the petitioner had opened the door to his car when he approached him, asked him his name, placed him under arrest for robbery.

The petitioner was placed in a police cruiser at that point.

The arresting officer conducted a cursory search of the automobile to see whether or not there were any weapons in the automobile.

He found none.

He then called for a police crane to come and tow the vehicle to the sixth precinct.

The car was left on the M street --at 1M Street unlocked and unattended to await the arrival of the police crane.

The arresting officer and his partner transported the petitioner via a police cruiser to the sixth precinct which was a ride of 10 to 20 minutes and was approximately six or seven miles from the place of arrest.

The time of arrest without any warrant was estimated to be at 1:30 PM in the afternoon.

At approximately 3:00 PM the same day, the operator of the crane arrived at the sixth precinct and informed the arresting officer that the car was on the lot inside of the precinct.

He notified the officer that there was a light rain falling, and that he did not roll up the windows because he did not want to disturb any finger prints which may have been found on the automobile.

Officer Baker who was the arresting officer went out to the automobile to make an inventory search pursuant to the police regulation which is cited again on page 3 of my brief.

Officer Baker first went and put a property tag on the steering wheel.

He then proceeded into the car.

He searched the glove compartment, the rear of the car and he also testified that he looked behind the sun visor.

He found nothing to remove from the car.

He got out of the car, walked around to the passenger side.

He opened up the right front door to roll up the window to protect it from the rain.

At this point, lying on the door well with the automobile was a registration card belonging to the victim of the robbery that occurred the night before.

Justice John M. Harlan: How is the door well or the window that he (Inaudible)?

Mr. Paul H. Weinstein: I beg your pardon.

Justice John M. Harlan: Is that the door well or the window that the officer closed?

Mr. Paul H. Weinstein: Yes, it was.

It was the right door well on the right front door.

After the officer discovered the registration card, he left the door opened.

He left the registration card lying in the well.

He went into the precinct and brought the petitioner back and confronted him with the evidence which he found.

He then took the evidence, turned it over to the police property clerk.

The next day he went down to the Court and obtained a search warrant directed to the police property clerk to seize the registration card which he had found the day before.

Officer Baker testified that the sole purpose of the search was to find and protect property which may have been in the car pursuant to the police regulation which was in effect at that time.

On a motion to suppress this evidence, it was denied.

However the District Court found that the police officer had more than one thing in mind when he went out to look at this car.

At page 118 of the record, the district judge stated that not only did he go out to protect the automobile from the elements or to remove property, but in fact he did conduct a search of that automobile for that he eventually opened up the trunk of the car which was locked.

The Fourth Amendment to the constitution has laid down procedures to be followed where police officers want to search areas protected by the Fourth Amendment.

Most recently, this doctrine was reaffirmed in Katz versus the United States in which the Court said that searches conducted outside the judicial process without prior approval by judge of magistrate are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well delineated exceptions.

Justice Byron R. White: Well, if a -- would you be making the same argument if the police property clerk could have the duty of examining automobiles that have been impounded legally and had gone and searched the car in a routine search or to pick up -- to inventory personal property and to put it in the lock box or in a check room or something and had discovered the same statement and had to call somebody's attention to him.

Mr. Paul H. Weinstein: I would say this, Your Honor, that the police have administrative problem.

I would ask the Court in this case to restrict the use of any incriminating evidence which they may find pursuant to an administrative search.

Justice Byron R. White: So you would say, make -- be making (Voice Overlap) --

Mr. Paul H. Weinstein: I would be making the same argument.

I would ask though that any incriminating evidence --

Justice Byron R. White: So irrelevant then -- what the purpose was here --

Mr. Paul H. Weinstein: That is correct, it's irrelevant.

Justice Byron R. White: You would say in other words that this search for the purpose of maintaining property for safe keeping perfectly proper?

Mr. Paul H. Weinstein: That is perfectly proper.

Justice Byron R. White: And so the thing the police ought to do.

Mr. Paul H. Weinstein: They ought to do this but they should not.

Justice Byron R. White: What they find is incriminating and cannot be used in evidence?

Mr. Paul H. Weinstein: That is correct unless they comply with the exceptions or unless the case falls within the exceptions of (Voice Overlap) --

Justice Byron R. White: Well, you -- would you think that though that the rule of admissibility is -- had been admissibility is certainly based on unreasonable search and a violation of the Fourth Amendment.

Mr. Paul H. Weinstein: That's correct.

Justice Byron R. White: And if the officers -- if it's quite proper and legal for the police to make a -- examine a car and -- with the purpose of safe keeping articles at that point, you wouldn't say there's any violation of anybody's rights.

This isn't a Fifth Amendment problem or anything like that.

This is a question of inadmissibility of evidence to enforce some subsidy violation of the constitution.

Mr. Paul H. Weinstein: In answer to that Mr. Justice --

Justice Byron R. White: Well, tell me what the unreasonable police conduct is if it has been the administrative -- if it would've been the property clerk making a routine check of the articles?

Mr. Paul H. Weinstein: First, it doesn't fall with any of the -- within any of the exceptions as announced by this Court previously.

That is the two exceptions announced in Preston nor the forfeiture statute that was a -- in proof.

Justice Byron R. White: Yes, but you've just told Mr. Justice Brennan and that's perfectly all right for the police to make these examinations.

Mr. Paul H. Weinstein: I'm going to answer your question this way.

The intent of the police department in protecting the property is not determinative whether or not there's a violation of the Fourth Amend -- or a persons Fourth Amendment's rights.

The motive or intent maybe perfectly alright but they're encroaching on an area protected by the Fourth Amendment when they go into the petitioner's automobile --

Justice Byron R. White: So you say there is a violation of the Fourth Amendment at the time the property clerk inventories these evidence and picks it up and puts it in a box in -- for safekeeping.

Mr. Paul H. Weinstein: I am saying that, Your Honor.

Chief Justice Earl Warren: Was there indication in this case that the petitioner consented to the police impounding his car?

Mr. Paul H. Weinstein: There is no indication that he was ever asked whether or not the officer could inventory the car.

There was no consent given by the petitioner.

Chief Justice Earl Warren: Is it your position that the police had no right to impound the car in these circumstances?

Mr. Paul H. Weinstein: No it's not.

I -- they had --

Chief Justice Earl Warren: Do you think they did have the right to --?

Mr. Paul H. Weinstein: I think that they did have a right to impound the car.

Chief Justice Earl Warren: On what theory?

Mr. Paul H. Weinstein: On the theory that if they had let -- they could have left the car on the street if they have locked it up.

They did have reason to believe that this car may have been connected with a robbery that occurred the night before and if they had a description and the tag known.

Chief Justice Earl Warren: They have probable cause to believe that this (Voice Overlap)?

Mr. Paul H. Weinstein: They have probable cause to believe that this car was used in a robbery.

Chief Justice Earl Warren: Supposed -- suppose there hadn't -- leave out the robbery part, and suppose he was just arrested as he was, he was not arrested for the robbery, was he?

Mr. Paul H. Weinstein: I believe he was.

Chief Justice Earl Warren: Oh, he was?

Mr. Paul H. Weinstein: Yes he was.

Chief Justice Earl Warren: I see.

Mr. Paul H. Weinstein: The connection there was his car to him.

Chief Justice Earl Warren: I see.

Mr. Paul H. Weinstein: Now --

Justice Abe Fortas: But as I -- would you agree that the Fourth Amendment reason for excluding evidence is in part at least to discourage an unlawful search?

Mr. Paul H. Weinstein: Yes, I do agree with that.

Justice Abe Fortas: And if the search was not unlawful, what is the justification for excluding the evidence?

That is to say here we have a situation in which neither the general search, the entry into the automobile was unlawful nor was the particular action.

I take it, your submission is the -- that particular action of opening the door was not unlawful and then in plain view there was this registration card.

Mr. Paul H. Weinstein: Your, Honor --

Justice Abe Fortas: Would you say that up to that point whatever the police man did was not unlawful it was justified.

Then on what theory should the evidence be excluded?

Mr. Paul H. Weinstein: The car is protected by the Fourth Amendment following Preston.

Justice Abe Fortas: Yes.

Mr. Paul H. Weinstein: Once he makes a physical intrusion into this car regardless of his motive and seizes incriminating evidence, I think that the petitioner in this case is protected by the Fourth Amendment.

Justice Abe Fortas: Well, perhaps I misunderstood you.

I thought a moment ago you said that there was -- you agree that the examine -- what the policeman did with respect to the car that is to say putting the tag on the steering wheel, examining it to remove personal property which might get lost or to be stolen, opening the doors with the purpose of running up -- and want to protect the car against the rain.

I thought you agreed that all of that was lawful.

Mr. Paul H. Weinstein: I did admit that that conduct was lawful because of the administrative problem that the police have.

I think they have a right to protect themselves against a lawsuit --

Justice Abe Fortas: Right.

Mr. Paul H. Weinstein: -- for stole -- for articles being stolen or for negligence.

Justice Abe Fortas: Right.

Now my question to you that if you assume that all of that was lawful, that is to say, the entry into the automobile, the opening of the door to turn up the windows, then on -- how do you -- how can we get from there to the proposition that the Fourth Amendment will not permit the use of the -- this card that was obtained in the course of what you agree was an unlawful activity.

Mr. Paul H. Weinstein: That is correct.

I'll get to it this way.

The search being conducted by the Metropolitan Police Department is one in administrative search which was struck down by camera and see.

Second, it gets around the particularity --

Justice Abe Fortas: How can you say that when you say that this was lawful activity where the car is (Voice Overlap) --

Mr. Paul H. Weinstein: Well, it strikes it down in this respect that he can't use the administrative search without a warrant to secure evidence.

And this is what we're getting at.

The administrative search here was not designed only to protect the -- it wasn't limited only to the protection of the valuables or the petitioner's automobile, but it also allowed then to seize any evidence which they may have found in the automobile -- in the car.

You have a general and exploratory search without particularly describing the things to be seized in the vehicle at the time that they seized it.

So, it violates the particularity requirement of the Fourth Amendment when they seized the incriminating evidence pursuant to this general search.

Justice Abe Fortas: You mean that the fact that the policeman found something that was evidentiary.

So it relates back and invalidates what you would otherwise have said, it was a lawful entry into the automobile, is that your position?

I mean, I don't -- it seem to be you're saying both that the search was a -- so-called a search, the entry into the automobile or it seems to me you're saying that is both lawful and unlawful.

Mr. Paul H. Weinstein: Well, I am saying that Your Honor, I am saying that it was lawful on one side and unlawful for the reason that he seized the evidence.

That is -- there is the -- the problem here is that they have to inventory these cars and yet I'm asking this Court that were there searching or inventorying a car pursuant to that police regulation and they find incriminating evidence, they should be restricted.

They should not be allowed to use this incriminating evidence although they should be allowed to remove the valuables from the car.

Applying the exceptions in Preston versus United States that is that the police have a right to search incident to a lawful arrest and contemporaneous thereto, the facts in this case certainly don't justify a search of this vehicle an hour and a half later and at the police station, five or six miles away.

There were no exigent circumstances existing at the time that police officer conducted the inventory search at the police precinct.

And the third exception is announced in Cooper versus California where in the state legislature had passed the statute forfeiting the automobile to the state in certain types of crimes.

There is no such statute in the District of Columbia, therefore the search pursuant to -- that statute would not be lawful in this instance.

The administrative search in my opinion is also violated from the Fourth Amendment because it was a part of a general practice of making general searches of all automobiles that came into police custody.

If this general --

Justice Hugo L. Black: How do you draw a distinction between the administrative search and other kinds of searches?

Mr. Paul H. Weinstein: The administrative search Mr. Justice Black is a regulation promulgated here by the Metropolitan Police Department.

They were or able to promulgate regulations directing the police officers without either legislative authority or judicial authority to do certain things which they may not otherwise have been able to do.

Justice Hugo L. Black: You say this regulation was all right, a valid regulation?

Mr. Paul H. Weinstein: I say it was valid for the -- for defensive purposes to protect the police department against a lawsuit.

Justice Hugo L. Black: But if they happen to see something in there it was admissible evidence, they couldn't use it.

Mr. Paul H. Weinstein: That is correct.

Justice Hugo L. Black: That's your whole case, isn't it?

Mr. Paul H. Weinstein: That is my -- basically my case.

Justice William J. Brennan: Well, is your attack an administrative search as an attack on the administrative search as such, in other words you're asking us to overrule Abbot?

Mr. Paul H. Weinstein: No, I'm not asking to overrule Abbot.

As I recollect, there was a lawful -- there was a search incident to a lawful arrest in Abbot.

This a search --

Justice Byron R. White: (Inaudible) to an arrest?

Mr. Paul H. Weinstein: It took place sometime later.

No, I'm not asking you to overrule Abbot Your Honor.

Of course, I -- the --

Justice Abe Fortas: I concede for example that if in this automobile there were -- they locked it safe, let's say or a very secured glove compartment that it might very well be arguable that if the police went in the back you see, they would be going beyond what is necessary for custodial purposes.

That is I understand your submission here you agree that what they -- you know, make you any such point you agree that this was a proper activity for custodial purposes.

And then the card came into view.

And the course of proper custodial activity, there was limited two custodial functions and that they didn't go beyond it.

They didn't -- its -- this is not a situation in which they would tear open a package that they found in the area and find evidence in that package or go into a locked compartment or anything of that sort.

Mr. Paul H. Weinstein: I believe the testimony was that he did go into the glove compartment and eventually he even removed the backseat of the car and went into the trunk.

Justice Potter Stewart: Yes, but that was with the search warrant, wasn't it?

Mr. Paul H. Weinstein: I think he went into the -- I think he said -- no, I'm mistaken.

He did go into the search -- the truck with a search warrant but he said it was the practice of the police department that where they couldn't get into the trunk that they had a right to go into the trunk --

Justice Byron R. White: Oh, would you --

Mr. Paul H. Weinstein: -- through the backseat.

Justice Byron R. White: Would you deny that -- lets assume you -- that the trunk was not locked and the administrative clerk is inventorying the car.

So he opens the back in and gets in and inventories how many spare tires, chains, etcetera at the back.

Now, that is a -- to the extent that it's legal at all, that its legal as looking in the front, isn't it?

Mr. Paul H. Weinstein: I would say so.

Justice Byron R. White: Well, what if it is locked?

You wouldn't suggest that -- which makes any -- that makes any difference to the search?

Mr. Paul H. Weinstein: Well, it would show that they were going into all areas of the car that then -- they weren't gong to restrict themselves --

Justice Byron R. White: Oh, yes.

They're going into all areas of the car where it might -- where normally you follow -- you find personal property to be inventoried.

Mr. Paul H. Weinstein: That is correct.

Justice Byron R. White: Yes.

Mr. Paul H. Weinstein: The inventory regulation is a regulation would -- which purports to allow the police wherever they have lawful custody of an automobile to conduct a general search of that automobile, inventorying it and removing any and all property which they may find in the automobile.

Justice Byron R. White: Well, I suppose a search warrant, if it was really a search warrant issued on probable cause to search a car might authorize the officers to search parts of the car that no custodial purpose would ever permit them to search.

Let's assume they had some probable cause to believe that the -- that there were -- narcotics were secured in the upholstery of the car.

I suppose they can look in the upholstery of the cars, tear it up.

But I doubt if -- I doubt just an administrative -- you should search the car to inventory and to safeguard personal property but permits (Inaudible).

Mr. Paul H. Weinstein: I don't know whether or not what the -- what they found would justify their entry into the automobile.

Justice Byron R. White: But you don't -- at this point yet -- though, you don't seem to really -- to question the entry into this car.

Mr. Paul H. Weinstein: I don't question the entry into the car for the purposes of removing the valuables.

The entry into the car for the -- in this case was illegal when he found that incriminating evidence.

Justice Byron R. White: I see.

I see.

Justice William J. Brennan: He could -- he -- it was proper you think for him to pick up this incriminating evidence to put it on an envelope and -- for safekeeping.

Mr. Paul H. Weinstein: No I don't.

Justice William J. Brennan: That's the end of it?

Mr. Paul H. Weinstein: No, I think that at that point he should've go and gotten a search warrant.

He had probable cause at that point to go and apply for the search warrant --

Justice William J. Brennan: Well, he did.

The only thing is --

Mr. Paul H. Weinstein: He removed the car --

Justice William J. Brennan: And gave it to the property clerk.

Mr. Paul H. Weinstein: That's correct.

Justice Byron R. White: Do you think it be the -- it would've been alright if he had left the car lying there, got the search warrant, and came back to pick it up?

Mr. Paul H. Weinstein: No, I don't know.

I don't make that statement.

Once he made that entry, once he open up the door to the car, Mr. Justice White, the physical intrusion was there regardless of what happened to that is irrelevant.

Justice Byron R. White: But that was illegal -- that was legal at that point.

Mr. Paul H. Weinstein: The opening of the door.

But there's -- where you have a search protected by the Fourth Amendment regardless of what he found doesn't justify his entry into the vehicle.

Justice Byron R. White: Yes.

But what if he hadn't found anything?

Would you have said he had to -- had violated the Fourth Amendment rights?

Mr. Paul H. Weinstein: There was nothing to suppress at that point.

Justice Byron R. White: Nothing to suppress but it doesn't bring in what -- but there was a -- was there an unlawful intrusion into privacy or into a protected area when he opened the car -- that car door regardless of what he found?

Mr. Paul H. Weinstein: It's my point that whatever he -- well, of course I have to limit that again to my defensive argument that the police have a problem here but they ought to be restricted as to what they can find and only be able to use it defensively against this man.

There is no -- in today's age --

Justice Byron R. White: Well, your difficulty is that -- your difficulty is what's -- is the -- what the Court has said with respects to the function of the exclusionary rule serves.

Certainly, a good many years ago, well, not too long though either, it was -- this is a state case?

Mr. Paul H. Weinstein: No, this is a federal case.

Justice Byron R. White: Well, had been, it has -- well, even a good many years ago, there would've been any question of what illegal evidence would've been admissible in spite of the violation of the Fourth Amendment.

And the inadmissibility serves a purpose.

I'm not sure that you -- I still have some trouble was whether that purpose observed in this case.

Mr. Paul H. Weinstein: Well, in answer to that, we would -- you would have to engage in determining what the purpose of the intent or motive of the police officer was when he went out to search the automobile.

Justice William J. Brennan: I suggest not once you --

Justice Byron R. White: Well, I wouldn't --

Justice William J. Brennan: -- once you concede that the -- there was a legitimate -- a purpose for entering that car, namely to take the contents, inventory them, and turn them over to the property clerk for safekeeping.

Then what is the purpose if the purpose is to deter police officers from unlawful conduct in violations of the Fourth Amendment?

If that's the purpose of the exclusionary rule or is it, isn't it?

Mr. Paul H. Weinstein: Yes it is.

Justice William J. Brennan: And how is that purpose served by excluding this evidence in this case?

Mr. Paul H. Weinstein: Because the -- he had probable cause to believe that this car even in that -- was used in the robbery, even announced to the officer at the time he arrested them that he was seized in this car for evidence.

So the -- it was --

Justice Byron R. White: Well, all you really saying then is that the -- since I had him under arrest and they had reason to think that this car may have been the vehicle in connection with the robbery?

Mr. Paul H. Weinstein: Yes.

Justice Byron R. White: That what they should've done once they had him in custody was to get a -- not to employ this type of regulation.

Which should then and there have gone to get a search warrant --

Mr. Paul H. Weinstein: Search warrant as --

Justice Byron R. White: -- to search that car.

Mr. Paul H. Weinstein: That is correct as was in -- announced in Preston.

Justice Byron R. White: When you have probable cause you ought to use it for a warrant.

Mr. Paul H. Weinstein: Yes, you should.

The --

Justice John M. Harlan: Supposing the only thing that had happened here or is it -- it rained -- being a rainy night, he just gone out (Inaudible)?

Mr. Paul H. Weinstein: And discover the evidence?

Justice John M. Harlan: And discovery -- yes (Inaudible).

Mr. Paul H. Weinstein: I have to go back to the my position that once he opens that door there is an intrusion in violation of this Fourth Amendment rights.

If he discovered the evidence regardless of whether he was going out there just to roll the window up, the minute he opened that door, he was intruding in the privacy of the man's automobile.

Chief Justice Earl Warren: Do they have a right from this case to impound the car?

Mr. Paul H. Weinstein: Yes, they do.

Chief Justice Earl Warren: Well supposed it was on the street and it was unlocked, supposed the officer just got in to drive it to the place of impoundment and he happen to see this thing on the floor, was he then violating the Fourth Amendment?

Mr. Paul H. Weinstein: I think we have a different situation here, I think that --

Chief Justice Earl Warren: Well, I know, I know it would be different but there we're --

Mr. Paul H. Weinstein: I don't think he would be violating I think he would fall within --

Chief Justice Earl Warren: -- hypothesizing here.

Mr. Paul H. Weinstein: I think he would fall within a search incident to a lawful arrest and contemporaneous thereto.

Chief Justice Earl Warren: But didn't someone in this case -- is this case or another one where someone told him that it was raining up -- raining that night.

Mr. Paul H. Weinstein: Yes, I believe the police -- the crane --

Chief Justice Earl Warren: A police were called at and he went out to --

Mr. Paul H. Weinstein: To roll up the --

Chief Justice Earl Warren: Since he went out to close the windows and the Court believed that to be true, didn't that?

Mr. Paul H. Weinstein: Yes, and he was --

Chief Justice Earl Warren: They found that it was true.

Mr. Paul H. Weinstein: I must point out he was also told that he didn't wish do disturb any fingerprints that might be on the vehicle.

Chief Justice Earl Warren: Yes.

Yes.

Mr. Paul H. Weinstein: Thank you.

Chief Justice Earl Warren: Mr. Beytagh.

Argument of Francis X. Beytagh, Jr

Mr. Francis X. Beytagh, Jr: Mr. Chief Justice and may it please the Court.

I think that before we get to any Fourth Amendment questions in this case, the first thing to do is to figure out whether are any are presented.

And we submit that under the circumstances here and as found by both of the courts below, the evidence that was sought to be suppressed was not obtained as a result of a search at all.

We have in this case concurrent findings of fact by two lower courts in this regard.

We have 10 judges that have looked at this question.

Eight of them have concluded that this card was found incident not to a search but incident to the officer seeking to roll up the windows to prevent the car from being damage by the rain.

Justice Abe Fortas: What's the difference?

Mr. Francis X. Beytagh, Jr: Pardon?

Justice Abe Fortas: What's the difference?

What makes the difference between a search and opening a door of a car and seeing what's in front of you?

Mr. Francis X. Beytagh, Jr: Oh, I take it if there is no search, the Fourth Amendment doesn't apply and --

Justice Abe Fortas: I understand that but I mean to say what is the objective factual difference?

Why do you say this was not a search or you can say and I understand your point that -- to be that the Fourth Amendment does not -- that Fourth Amendment was not violated by this particular search, and why wasn't it a search?

Don't you have a search every time you open the door and see what's -- what your eyes behold?

Mr. Francis X. Beytagh, Jr: I don't think so, Your Honor.

It gets to the matter of a terminology.

This Court had recognized in a number of cases what has come to be called an open viewer, full view doctrine.

The district judge here found that the situation was quite analogous to that but for the fact that the door had to be opened before this car was in full view.

Justice Abe Fortas: Mr. Weinstein has put to us very squarely and fairly the following preposition as I understand it that where in the course of an administrative search for proper reasons, a custodial search, something is found which has an evidentiary or incriminating effect can that later be used, that crime against the defendant.

Now that's the proposition here.

And so -- and that's the question with which I suggest we have to struggle in this case because as far I'm concern, the search is a search.

Then you have a next question as to whether it does or does not violate the Fourth Amendment.

And then the further question is to whether something transpires or something is done by the police, and of course of it that may violate that may result in exclusion on the Fourth Amendment grounds.

Mr. Francis X. Beytagh, Jr: Well, it seems to me to say a search is a search requires one to reject the findings that were made by both the courts below.

That maybe right.

And a proper way to proceed what it seems to me that the first question is much like the one posed by Mr. Justice Harlan.

If all that had going on here was that the officer went out to close the window and there had been no other -- then no regulation relating to an inventory search, no other circumstances that showed some kind of searching activity was engaged in.

Then would that be a search, I'm not sure that it --

Justice Abe Fortas: But suppose a policeman come to the door of my house and they opened the door in my house and they walk in and stop right there.

And they have no warrant, no cause, no -- nothing else, is that or is it not a Fourth Amendment violation?

Mr. Francis X. Beytagh, Jr: I would suppose that it would be but I would --

Justice Abe Fortas: Yes, it is.

Mr. Francis X. Beytagh, Jr: -- like to know why they opened the door.

Justice Abe Fortas: It doesn't make any difference, I suggest to you.

Mr. Francis X. Beytagh, Jr: If your house is on the fire or --

Justice Abe Fortas: That it may or may not be a violation of the Fourth Amendment but it's a search right there which sets in motion a legal inquiry.

And that's what's happened here as I understand it.

Mr. Francis X. Beytagh, Jr: Well, we'll assume that with the petitioner, there was a search here.

And it seems to us then the question its posed is whether -- assuming that there was a search and rejecting the findings below that there wasn't.

The search was reasonable.

Now, as I take a petitioner concedes that the -- it's a reasonable thing for the police to conduct searches for the purpose of safeguarding property which is found in impounded cars.

And he says that here the impounding was proper.

What he says --

Justice Potter Stewart: The Fourth Amendment is written in terms of making the three different things unconstitutional, at least three different things, an unreasonable search, unreasonable seizure, and of things and on the reasonable seizure of persons.

So that even Mr. Weinstein's argument it occurs to me might parse down into the proposition that violates may not have been an unreasonable search.

Nonetheless, it may still have been an unreasonable seizure.

And for that reason was an admissible in evidence.

Mr. Francis X. Beytagh, Jr: Well, I'm -- I don't know of any situations here before where that dichotomy has been adopted.

It seems to me that what he's saying essentially is that while it was proper to engage in this kind of activity, what was improper was to use anything that was found as a result of it and as -- and pointed out by Mr. Justice White this Courts decision under the Fourth Amendment say that the purpose of the exclusionary rule is to deter activity.

And that it seems incongruous to say that the activity would be lawful but for the fact that you found something incident to it that might be used --

Justice Byron R. White: Well, the --

Justice Potter Stewart: Somebody I suppose again Mr. Weinstein I might say that he would like to discourage would be to abuse this valid administrative search for the protection of the car and its owner.

Abuse it by perverting it into a search for evidence to use against the man at his trial.

Mr. Francis X. Beytagh, Jr: Oh, I don't know how --

Justice Potter Stewart: And the way to prevent that abuse is to forbid the introduction of this at this criminal trial.

Mr. Francis X. Beytagh, Jr: Oh, I don't know how it was abused by opening the door --

Justice Byron R. White: (Inaudible)

Justice Potter Stewart: Justification for this was it -- was the administrative search of the car to be sure that no property was going to be lost or stolen and to roll up the windows of the car to be sure that there it -- it wouldn't rain in the upholstery.

And if that was the only justification for it, shouldn't the Government be confined to doing only that rather than finding evidence in there to use against this man at his trial.

Mr. Francis X. Beytagh, Jr: Well, it seems to me of what the Government is doing is reasonable the fact that pursuant to it, it finds something that's usable doesn't lead you to the result that it can't be used.

Justice Potter Stewart: To say it might have been the seizure that was unreasonable.

Perhaps the search was perfectly all right.

Justice Byron R. White: Well, of course here the officer did what -- it seems to be conceded the police can do in a sense they looked in the car or maybe administrative purposes.

And they found the card and they didn't -- they then gave it to the property clerk which is where personal property found on the car should go.

Then they got a search warrant.

They got a -- they went to a judge and said, "We have a probable cause to seize this card", and they get the warrant and seized it.

Is that what happened?

Mr. Francis X. Beytagh, Jr: Yes.

Justice Hugo L. Black: Suppose you'd pull up the -- suppose the trunk had been opened and they wanted to stop and protect it from the rain.

And when he starts to put the top down, he accidentally saw what he was not looking for.But accidentally saw the dead body of the man this fellow has killed.

Would that be admissible?

Mr. Francis X. Beytagh, Jr: Well, I hope that at least it could be seized and removed.

I would think it would be.

It seems to me that the situation here is essentially the same thing though your facts are a little bit heightened in impact.

Justice Hugo L. Black: I judge them -- what they all say is that -- he wasn't looking for this but he just actually have saw it.

Mr. Francis X. Beytagh, Jr: That's essentially I think what happened.

And the only difference between this case in our view and the so-called open view cases is that in order to -- as everyone knows to roll up windows on a car, you have to open the door because they are rolled up from the inside.

And that --

Justice Hugo L. Black: Supposed they hadn't seized the property but he just wanted to testify to what he saw, wholly by accident but not looking for it, not searching for a thing in the world.

The stronger the fact, he didn't even get it.

But he'd been barred from testifying in the fact that he saw it --

Mr. Francis X. Beytagh, Jr: Well, I --

Justice Hugo L. Black: -- by the Fifth Amendment?

Mr. Francis X. Beytagh, Jr: I would suppose, Your Honor that if the card could not be introduced, he could not testify.

As to that otherwise, it wouldn't be much purpose in saying that the card couldn't be introduced but you could still testify about what he saw and observed pursuant to the activity --

Justice Hugo L. Black: You're agreeing now.

We are assuming that he didn't look for it, he didn't search --

Mr. Francis X. Beytagh, Jr: Yes.

Justice Hugo L. Black: Made no effort to get it, didn't want it, didn't know anything about the agreement.

He saw it when he shut this window down.

Do you think that he's barred from testifying to what he saw?

Mr. Francis X. Beytagh, Jr: Well, I would hope that it wouldn't bar him from testifying.

But my answers is that it seems to me that whether he can testify or not is essentially the same question as to whether the card --

Justice Hugo L. Black: Well, why would it be?

They are two different things.

One of them is taking property that you've searched for and seized in violation of the law.

The other is --

Mr. Francis X. Beytagh, Jr: Correct.

Justice Hugo L. Black: -- he's have -- to testifying to something that you saw.

Well, you are not violating any law at all.

Mr. Francis X. Beytagh, Jr: No, I agree.

I stay on the facts here it seems to me that the card should be introduced and he could testify as to what he saw.

Justice Hugo L. Black: Well, why does it necessary to follow the two and distribute, they're locked together.

If it was not a search, if he was not searching for it, he's not looking for it, he just accidentally saw it.

Suppose he'd been walking along the street and saw it?

Mr. Francis X. Beytagh, Jr: Well, perhaps they're not but it would be -- it seems to me it would be kind of a curious rule if you had the thing that he saw and you couldn't introduce that but he could testify as to what it was.

Justice Hugo L. Black: But it might be except to the Fourth Amendment directed that the effects of (Inaudible).

Mr. Francis X. Beytagh, Jr: Yes Sir.

Justice William J. Brennan: Mr. Beytagh, it doesn't make any difference -- or would it -- let's suppose we have all the facts we have here except that the car was impounded because it was parked after four o'clock in an unparking zone as has happened on this city the -- bring a crane and take it down under the six and I take if this -- incidentally I notice this regulation is rather explicit.

The duty is thoroughly do search.That's the language of the regulation, to such a vehicle.

What then?

And what everything had happened here happened.

Mr. Francis X. Beytagh, Jr: What then if pursuant to this search?

I would think that you would have a somewhat different situation but I would --

Justice William J. Brennan: But -- well, I don't understand why.

Why would you?

Mr. Francis X. Beytagh, Jr: Because in the context to none of this Court's decisions talking about automobile searches and seizures, the Cooper case which is the last authority on the point, speaks in terms of the relationship of the search to the crime for which the person was suspected here.

The only thing that the individual is suspected of is leaving his car in the wrong place.

Justice Byron R. White: But isn't this a reasonable for the police to inventory the contents of the car seized for illegal parking as it is to inventory this car which has been seized in connection with the arrest?

Mr. Francis X. Beytagh, Jr: I think it's reasonable, yes.

All that --

Justice Byron R. White: Or is unreasonable?

Mr. Francis X. Beytagh, Jr: Or is unreasonable.

All that I really mean is that it seems to me that the -- that question need not be reached here because on the facts, we do have a situation where a crime have been committed, the car was intimately related to that, it was identified as the getaway car and provided the basis for the probable cause to arrest, whatever.

Chief Justice Earl Warren: Do you quarrel with Preston?

Mr. Francis X. Beytagh, Jr: Well, it's a little difficult to know what Preston stands for anymore.

Justice William J. Brennan: Do you say anymore?

Mr. Francis X. Beytagh, Jr: Anymore.

In light of Cooper, I think that the efforts have been made by courts subsequent to Cooper to put them together.

Some courts have said that Cooper overruled Preston.

Cooper of course pointed out that there were distinguishing features between the two cases.

Here it seems --

Justice Hugo L. Black: Could also pointed out, didn't it?

This Court said, case after case after case after case that the reasonableness is always dependent on all of the circumstances of each case?

Mr. Francis X. Beytagh, Jr: Well, that's what Cooper said.

Justice Hugo L. Black: Well, that's a fact, isn't it?

Mr. Francis X. Beytagh, Jr: It's a fact --

Justice Hugo L. Black: Isn't that what the courts been holding?

Mr. Francis X. Beytagh, Jr: It's a fact Your Honor that there are a lot of cases that speak in those terms but it also -- I have to concede as a fact that there are other cases that speak in somewhat different terms, speak in terms of --

Justice Hugo L. Black: You say it does not depend on the (Voice Overlap) --

Mr. Francis X. Beytagh, Jr: They don't say it doesn't depend on the reasonableness but they talk in terms of the opportunity or ability to obtain a warrant and there are these two lines of authority that move along sometimes (Voice Overlap) --

Justice Hugo L. Black: They're all part of the circumstances?

Mr. Francis X. Beytagh, Jr: Well, I -- that's one way to look at them.

It seems to us --

Chief Justice Earl Warren: Assuming that Preston is still the law, is this distinguishable from Preston?

Mr. Francis X. Beytagh, Jr: I think the situation here is distinguishable from Preston.

As the Court pointed out in Cooper there was no connection in the Preston situation between the crime for which the people were arrested and in the automobile.

Whereas in Cooper, the automobile was -- it was conceded as it is here was lawfully impounded because it had been used to transport the narcotics there.

And here, it was the getaway car from the robbery.

Chief Justice Earl Warren: When did it -- it was impounded, it was that the state who was entitled to the possession of it because of a statute bearing upon the narcotic traffic, wasn't that (Voice Overlap) --

Mr. Francis X. Beytagh, Jr: Which authorized the forfeiture of --

Chief Justice Earl Warren: Yes.

Mr. Francis X. Beytagh, Jr: -- upon conviction, yes.

Chief Justice Earl Warren: Yes.

Mr. Francis X. Beytagh, Jr: That element was in the Cooper Case but the Cooper opinion itself said that the forfeiture cannot resolve until a conviction have been obtained.

And the dissenting opinion there pointed out that it was difficult to understand how the fact that a forfeiture may result in the future to justify a different kind of activity and approaches to the car during the time it was held.

When it was held, it's still was the car of the owner until the forfeiture had occurred.

The forfeiture couldn't occur until the individual have been found guilty.

We think that on the facts here the situation is a much closer one than a -- to Cooper than it is to Preston.

In Cooper, the Court pointed out that the reason --

Justice Hugo L. Black: May I ask you -- before you do that, may I ask you this?

Mr. Francis X. Beytagh, Jr: Yes sir.

Justice Hugo L. Black: Are you going on the assumption that the Preston case held those circumstances were the only ones under which -- which would make a search reasonable.

Mr. Francis X. Beytagh, Jr: You mean the Cooper case?

Justice Hugo L. Black: That the -- to the Preston Case.

Are you reading it as saying while these circumstances are unreasonable they are the only circumstance that could ever make a search unreasonable?

Mr. Francis X. Beytagh, Jr: No, I don't think Preston should be read (Voice Overlap) --

Justice Hugo L. Black: When on the whole facts and circumstances of the case is still reasonable, isn't it?

Mr. Francis X. Beytagh, Jr: Well in Preston as you pointed out in Cooper, the major effort was to justify the search on the ground it was incidental to an arrest.

Preston says that a search that is not contemporaneous and is not in the same area is not -- simply not incident to the arrest and therefore can't be justified on that ground.

Justice Hugo L. Black: But you didn't understand it to say did you, that there's a per se rule, per se just that, no more, no less, that Preston had decided --

Mr. Francis X. Beytagh, Jr: No Your Honor.

Justice Hugo L. Black: -- that all searches made -- after you'd had a car, certain length, the time were unreasonable?

You didn't understand that, did you?

Mr. Francis X. Beytagh, Jr: No, Your Honor and I think that --

Justice Hugo L. Black: I thought it was written on the basis of what I have thought for a long time was the law that we look at all the facts and circumstances of each case to see if it is unreasonable search and it's largely a question of judgment.

Mr. Francis X. Beytagh, Jr: I think that's right and I agree with you.

Justice Hugo L. Black: And you are relying here as I understand it on the fact that eight judges, Court of Appeals held that this was reasonable?

Mr. Francis X. Beytagh, Jr: Yes, Your Honor.

As I was saying, we view the situation presented here assuming again we've reached the question of a search and a reasonableness of a search under the facts as one that it is closer to Cooper than to Preston.

Here as the Court pointed out in Cooper, the reason for in the nature of police custody of an automobile may constitutionally justify a search as a reasonable one.

And also as the Court pointed out in Cooper, the crime for which the individual is arrested is relevant.

And in Cooper the search was one that was closely related to the reason for the arrest, the reason the car was impounded etcetera.

Justice Abe Fortas: Mr. Beytagh, I think the -- and there's another possibility, first, I'd tell you, what you're saying now is that the custody, police custody of the automobile here should be assimilated to the impoundment situation in Cooper.

Mr. Francis X. Beytagh, Jr: Yes, Your Honor.

Justice Abe Fortas: Now, that would mean as I think a colloquy a moment ago indicated that anytime the police impounded an automobile whether it was because of unlawful parking or whatnot that -- you would say that Cooper ought to apply even though Cooper was a different kind of a case, it was a forfeiture type of case, is that right?

Mr. Francis X. Beytagh, Jr: There was that element in Cooper, yes.

Justice Abe Fortas: Yes, but you're saying that anytime the police lawfully take possession of an automobile whether it's for parking or whatnot that it ought to be treated as -- that Cooper ought to be applied, is that your (Voice Overlap)?

Mr. Francis X. Beytagh, Jr: No, I don't think it's necessary to reach that.

As I was pointing out the language in Cooper, that talks in terms of why the search there was reasonable, talks about the relationship between the reason for the impounding and the search which ensued.

It seems to us that --

Justice Abe Fortas: Well, how about in the present case now, what -- am I right, was Cooper a -- Cooper was a narcotics --

Mr. Francis X. Beytagh, Jr: Yes, Your Honor

Justice Abe Fortas: -- case?

And by -- and there might have been narcotics concealed in the car?

Mr. Francis X. Beytagh, Jr: Yes.

Justice Abe Fortas: Now this was not a narcotics case, was it?

Mr. Francis X. Beytagh, Jr: No.

Justice Abe Fortas: This was -- what was this?

Mr. Francis X. Beytagh, Jr: This was a robbery in which the -- this vehicle had been identified as the getaway car and had been --

Justice Abe Fortas: So that you don't have the same possibility that you're suggesting is relevant of a -- use of the car as a place of concealment, do you?

Mr. Francis X. Beytagh, Jr: I'm not sure that you don't have, Your Honor.

Justice Abe Fortas: You mean for the fruits of the --

Mr. Francis X. Beytagh, Jr: That the -- the first place that the fruits of a robbery go when a car is used to get away from the scene is into the car.

Justice Abe Fortas: Well, there was (Inaudible) of time here, wasn't there?

Mr. Francis X. Beytagh, Jr: Yes.

Justice Abe Fortas: Between the commission of the robbery and the time that the police grabbed the car?

Mr. Francis X. Beytagh, Jr: Yes, the robbery was at midnight and the police seized the car the next day at 1:30.

Justice Abe Fortas: By now this -- alright, I think I understand your position on that but there's still another approach here, isn't there?

Which is that, assuming that the police had custody of the car lawfully as Mr. Weinstein seems to concede, the -- what they did, their search of the car, their entry into the car was lawful in the exercise of their custodial responsibilities, is that a separate and distinct approach to the analysis of the problem from your point of view?

Mr. Francis X. Beytagh, Jr: I don't think it's separate and distinct.

I think that it -- that again is a factor as Mr. Justice Black was pointing out that relates to the overall reasonableness.

Justice Abe Fortas: Well, if you assume though that Cooper placed special emphasis upon the forfeiture aspect, the second analysis that I have suggested here would get away from what maybe the difficulty of analogizing this situation to a forfeiture situation.

Mr. Francis X. Beytagh, Jr: Right, I agree with you.

Several things that I would like to point out here, the regulation does draw a distinction between the entry of locked areas of automobiles.

And says that when a glove compartment or a trunk is locked and it appears that the car won't be held for a significant period of time, there's no need to enter those parts.

It also says that where they are locked and there is a need to enter them they should not be broken but the officer should go to the property clerk and seek instructions.

I take it that the basic purpose of this is to avoid insofar as possible unnecessary disruption of individual's automobile.

Finally, I'd like to talk a little bit about the -- our views on automobile search is generally.

We're -- of course, the country that has made the automobile, the thing that everybody has.

We have millions of them on our highways.

And as it's been pointed out, large numbers of them are impounded.

Indeed I should point out that in 1966 over 14,000 cars were impounded in the District of Columbia.

Justice Potter Stewart: I expect the larger -- is the largest proportion of those, these which have towed away for (Voice Overlap) --

Mr. Francis X. Beytagh, Jr: I think rush hour obstruction situations.

Justice Potter Stewart: Yes.

Mr. Francis X. Beytagh, Jr: Most of those are returned as soon as the --

Justice Potter Stewart: Yes.

Mr. Francis X. Beytagh, Jr: -- individual finds out where they are and (Voice Overlap) --

Justice Potter Stewart: And pays just $25.

Mr. Francis X. Beytagh, Jr: And get them.

There is a significant problem not only in the District of Columbia but in all urban areas with automobiles.

And there are problems with safeguarding that the property that exists there.

Furthermore, we don't think that it's an unnecessary thing to analogize automobiles to homes or houses in all respects with respect to the applicability of the Fourth Amendment.

Even in the Preston case, the Court pointed out that the Fourth Amendment has never been applied and precisely the same way as to automobiles as it has to homes.

If the basic thrust of it was to maintain privacy in the house, every man's castle that sort of approach.

It seems to us that these considerations are irrelevant in assessing the overall reasonableness of a search of an automobile.

An automobile is an effect.

And the Fourth Amendment talks in terms of effects.

And it's also a container.

Now, the Government below argued what the -- has been termed instrumentality theory that once you can seize the instruments, you can seize and search all of the contents.

It seems to us that it's not necessary to go that far in the abstract here because we do have this inventory search procedure that's more related to the particular facts here.

But I should point out that a lot of effects or containers as well; briefcases are, suitcases are, handbags are, wallets are.

Now, as to most of these items, it has never been thought that --

Justice William J. Brennan: And envelopes?

Mr. Francis X. Beytagh, Jr: Envelopes.

Justice William J. Brennan: Paper bags with guns in it.

Mr. Francis X. Beytagh, Jr: That's right.

I don't think it's been thought that because such items are -- have a capacity of containing things that when you take them lawfully into custody or seize them or whatever, the term might be in the circumstances that you can't thereupon do with them what is proper and reasonable under the circumstances.

Cars are different, they're bigger.

We understand that and we appreciate that.

We also point out that cars are not homes and that the basic thrust and or the office is and the basic thrust of most to the Court's Fourth Amendment decisions have related to the protection of the privacy in those circumstances.

Justice Abe Fortas: Let's say I understand you.

Do you mean that if the police lawfully enter a house let's say with permission and they see a sealed envelope lying on the table or a package in brown paper with a plan around it.

That they may then proceed to open the envelop or to open the package without more?

Mr. Francis X. Beytagh, Jr: Well, I don't know why they entered the house and I don't know what --

Justice Abe Fortas: Well, suppose a -- they entered a house in pursuit of some robbers --

Justice William J. Brennan: And they see an envelope with some photography shots but sealed up, they're looking for pictures of the robber.

Mr. Francis X. Beytagh, Jr: Well, I don't know about the -- part of --

Justice William J. Brennan: That was Gilbert, remember?

That was Gilbert last year.

Well, what about that?

Mr. Francis X. Beytagh, Jr: Well, it seems to me that you have to apply the test of reasonableness as to the seizure and if --

Justice William J. Brennan: Let's say they could open the envelop and lo and behold, there pictures of the robber, they can use it.

Mr. Francis X. Beytagh, Jr: Well I'd -- again I say that a Court would I think look at all the circumstances of the situation.

If somebody had stolen a wrapped package and you come upon them properly and there's a wrapped package --

Justice Byron R. White: But what if your -- what if somebody starts to ask him questions just as a witness here, just to investigate him, asks him some questions to see a brown paper sack on the table.

And you asked him what's in it, and he says, “It's none of your business”.

And so you go over and tear open the sack and you find two guns in it.

You had no -- and it's admitted you had no probable cause to believe no -- that there wasn't anything in the sack for that matter.

You hadn't intended to arrest him or anything else when you went there.

I don't suppose you could do any -- do that and even more, you can go look in the closet, would you?

Mr. Francis X. Beytagh, Jr: I don't think so.

No Your Honor because it would be under the circumstances.

Justice Hugo L. Black: I suppose your answer about the envelope is that you're not saying unless there should be a per se rule that an envelope could never be opened even though there had been number of things stolen, they were looking for stolen (Inaudible), you're not going to say its -- never be -- not be a rule that should never opened or that it can be opened.

It depends on all the circumstances of what's going on.

Mr. Francis X. Beytagh, Jr: I think that's very -- and I think that makes it difficult to answer somewhat in the abstract --

Justice Hugo L. Black: It's hard to answer a per se question particularly about anyone of particular things.

Mr. Francis X. Beytagh, Jr: Yes, Your Honor.

Thank you.

Chief Justice Earl Warren: We'll recess now.