DAVIS v. MISSISSIPPI
Term:
- 1960-1969
Facts of the Case
None
Question
None
Argument
Davis v. Mississippi - Oral ArgumentDavis v. Mississippi - Oral Argument, Part 1Davis v. Mississippi - Oral Argument, Part 2 Conclusion
Decision: 6 votes for Davis, 2 vote(s) against
Legal provision: Amendment 4: Fourth Amendment
Legal provision: Amendment 4: Fourth Amendment
None
Print this transcript
Transcript:
Argument of Melvyn Zarr
Chief Justice Earl Warren: Number 645, John Davis, petitioner versus Mississippi.
Mr. Zarr.
Mr. Melvyn Zarr: Mr. Chief Justice, may it please the Court.
This case is here in writ of certiorari to the Supreme Court of Mississippi to review petitioner's criminal conviction.
Petitioner John Davis, a 14-year old Negro boy was convicted of raping an 86-year old white woman for whom he had done yard work and he as sentence to life imprisonment.
This Court granted the petitioner's petition for writ of certiorari and forms a purpose to consider whether the police conduct evidence by this case contriving in the Fourth and Fourteenth Amendments of the Constitution of the United States, and if so, whether the product of that illegal police conduct, petitioner's fingerprints was properly admitted into evidence at petitioner's trial.
Briefly, the facts of this, starting December 3, 1965, the police of Meridian, Mississippi took into custody for investigation some 65 to 70 Negro boys.
Now, what they were investigating was a complaint of rape by an 86-year old white woman, who had reported to the police that she had been attacked in her home by a Negro youth on the evening of December 2nd, apparently around seven o'clock.
The nature of her description is uncertain but its quality can be inferred from the number of suspects that appeared to cover.
Two partial fingerprints had been found on the outside of a window and a partial palm print that's been found in the inside window sill.
On this basis, they drag had begun.
The petitioner, a 14-year old Negro boy, who had done yard work for the woman was one of the 65 to 70 Negro boys taken into custody.
The petitioner was taken to the police headquarters on December 3rd, questioned, fingerprinted and released.
The others apparently went to a similar procedure.
Now, it's quite clear from the record that there was no warrant for petitioner's detention.
Why?
The reason is best capsulized in respondent's brief at page 2 in these terms, I'd like to quote it, “that none of the 65 or 70 who are interrogated or picked up were suspects but were only interrogated and printed by the police in an effort to get leads to establish probable cause to arrest the guilty party.”
That was on page 2 of the respondent's brief.
Now, at that December 3rd detention, which was the petitioner's first detention, he was fingerprinted and those sets I shall refer to as the first set.
They were never analyzed nor introduced in evidence and nothing further has been heard of them.
Now, between December 3rd and 7th, he was taken into custody in the words of the police juvenile Officer Keller about four or five times.
Officer Keller testified that he was picked up in an attempt to get leads, those are his words, and on at least one occasion the petitioner was taken to the hospital and exhibited to the prosecutor for a “gage to go by on size and color.”
However, there was apparently no positive identification even though the record is clear that the petitioner had done some yard work for her recently as two weeks before.
The last detention from which the fingerprints that were introduced in the evidence is second set was green was on -- begin on December 12th, again without a warrant.
He was driven to Jackson having been picked up by Officer Keller and Chief Bedingfield, kept overnight to the Jackson jail, given a lie detector test the following day and return to the Meridian jail.
On December 14th, this second set was taken and sent off to the FBI laboratory in Washington together with the prints of approximately 23 of Negro boys who were still under suspicion at that time.
On December 14th, all the record does not show that he was charged with juvenile delinquency for breaking into the woman's home.
Three days later, his case was certified by the juvenile judge after hearing to the Circuit Court of Lauderdale County, in which Court he was indicted and tried.
Justice Potter Stewart: What was the -- it was the breaking into the woman's home the same -- the same -- part of the same offense --
Mr. Melvyn Zarr: Yes sir.
Justice Potter Stewart: Which is now been tried and convicted?
Mr. Melvyn Zarr: Yes sir.
Justice Potter Stewart: I see.
Mr. Melvyn Zarr: At the trial, the testimony presented by the State, well, before I get to that, let me first say that preliminarily, petitioner's counsel moved to suppress the introduction of evidence of a second set of fingerprints as violative of his rights into the Fourth and Fourteenth Amendments.
After a hearing this motion was denied, the prosecution's case consisted of the woman's testimony, we just capsulized at page 4 and 5 of our brief to the effect that that he had done yard work for her.
A description of the attack which is contained and set out in the brief, there was no medical evidence, the second set of fingerprints came in over objection and he was convicted and sentenced to life imprisonment.
Justice William J. Brennan: Where was the second set of fingerprints you drawn first?
Mr. Melvyn Zarr: I have no idea Your Honor.
The testimony in the record when that was asked by Ms. Yang of the detective Scarborough, he merely said that they were very busy and they were just -- they just never got around to setting the first set out.
Justice Potter Stewart: It doesn't make any difference to your argument which set was used?
Mr. Melvyn Zarr: No, sir.
But except for this.
The respondent argues that even assuming for purpose of the argument which he is willing to do that the second detention, that is -- the last detention that is December 12 which he yields at the second set, even assuming that that detention was illegal.
This Court should still hold the conviction because on a retrial, this first set which possibly sitting in the file supplies --
Justice John M. Harlan: I got no file --
Mr. Melvyn Zarr: Oh, yes sir.
Yes, sir.
But my point about both --
Justice John M. Harlan: There might not have been any arrest at the first occasion.
Mr. Melvyn Zarr: Yes, we contend that there was Your Honor.
Justice John M. Harlan: I know you do but the facts are different.
Mr. Melvyn Zarr: Well, Your Honor, the only testimony as to this first detention which we call an arrest that of December 3rd was by officer Griffin on page 6 and officer Thompson on page 6 and 7.
He was asked question, “Didn't you have occasion on December 3rd last year to arrest the defendant John Davis?”
Answer, “I did.”
“Did you tell the Court whether or not you had a warrant for his arrest?”
Answer, “I did not.”
Question, “you did not have a warrant for his arrest?”
Almost the identical testimony was conducted by Mr. Yang and Mr. Thompson, Officer Thompson and that is the only, only evidence in the record about that December 3rd arrest.
Justice John M. Harlan: They didn't take him to the station now to investigate?
Mr. Melvyn Zarr: Yes, they did Your Honor.
Justice John M. Harlan: Oh, they did?
Mr. Melvyn Zarr: Yes, they did on the -- under December 3rd.
Justice Potter Stewart: Then on December 12 which you did not tell us was the time when the fingerprints were, they were actually used.
Mr. Melvyn Zarr: Yes, sir.
Justice Potter Stewart: Where is the testimony about that episode, I mean about the circumstances of the arrest that you quoted now?
Mr. Melvyn Zarr: It's scattered throughout the record Your Honor.
On page 8, the police officer -- Chief Bedingfield testified here that middle of the page that he went with the petitioner to Jackson on the 12th.
On page 10, the -- Officer Keller testifies near the bottom of the page.
Question now, “When you picked him up on the 12th, did you have a warrant at that time for his arrest?”
The answer, “no.”
Few answers previous to that is a testimony of the effect that they in fact did pick him up on the 12th.
The Mississippi Supreme Court held that on the 12th, he was arrested.
On page 58 of the appendix about 10 lines down the Court says, however on December 12th, the appellant actually was arrested, brought to Jackson and subjected to a lie detector test and of course that's supported by the record.
Let me back up for one moment and discuss what the Mississippi Supreme Court held, two things.
One, that the detention yielding the prints was not an arrest, this probably based on the mistaken assumption that the prints had been taken as a result of the first detention, those who were introduced in evidence were the product of the first detention.
And secondly, apparently alternatively, the print should not be excluded because they are authentic.
Now, respondent argues and I better complete this argument that the -- even though -- even assuming argument that the prints, the second set of prints are to be excludable as a result of a -- an illegal arrest.
The conviction must yet be affirmed because on and assured retrial, the first set which is presumably lying around some place hasn't been used could be introduced, and therefore to reverse this conviction would be “a useless gesture” quoting from the brief at page 8, to reverse this conviction only to submit the first set of prints to be introduced in evidence at John's retrial.
This argument of course assumes that the first detention was legal and we maintain quite the contrary and urge the Court to set at rest the constitutional sides of both sets of prints in order to forestall the necessity of further review by this Court.
Justice John M. Harlan: What if both sets are excludable?
What about instilling other set?
Mr. Melvyn Zarr: Well Your Honor, we assume that traditional scope obtained principles will apply and it would be free to -- a position would free at some subsequent time as a retrial to challenge a new set of prints as a product of the original obtained.
Justice John M. Harlan: Well, what if a -- what if the police just go around to his house and ask him for his fingerprints and he says, no, and they say, well, we want they anyway and we're going to take them and they get his fingerprints.
Mr. Melvyn Zarr: You mean not in this case Your Honor but just some types of set of --
Justice John M. Harlan: No, in this case.
Lets say its reverse -- let assume its reversed --
Mr. Melvyn Zarr: Yes.
Justice John M. Harlan: Then they say, well, we'll go around and get his fingerprints now and they go around to his house and say give us your fingerprints and he says no --
Mr. Melvyn Zarr: Well, would that be under the --
Justice John M. Harlan: And then they take his fingerprints, that's all they do is take his fingerprint.
Mr. Melvyn Zarr: Well, I'm going to assume Your Honor that they would have to go to his house, if they were willing to do this legally this time with a warrant and they would depend on what -- on what that warrant was based on.
If it fact was based upon her affidavit, Mrs. Key's affidavit, the prosecutor's affidavit and that affidavit was in fact tainted by this prior set of fingerprints, then we would assume a scope obtained principle would apply and that could be excluded but it would depend on what the facts at a later hearing would turn up.
Justice John M. Harlan: Would you say there is no way, no legal way that officers may or the police or investigators may get a set of fingerprints of a suspect until and unless they have probable cause to arrest as long as he objects to it?
Mr. Melvyn Zarr: That's right Your Honor and I think that there may be a narrow exception for true voluntary detention.
I think that it's possible that one could conceive a situation which is this is an action voluntarily to give his prints in order to eliminate any suspicion of himself but of course this Court's voluntariness test would have to apply.
He have to knowingly and freely involuntarily give up his prints and asserting well that they would have to knowingly, knowingly that he could refuse and nothing would happen, that he have to knowingly give up his prints.
Justice John M. Harlan: Didn't this lady identify him at the trial?
Mr. Melvyn Zarr: Yes she did Your Honor.
Justice John M. Harlan: And on a sworn testimony that's the man?
Mr. Melvyn Zarr: Yes, sir.
She was -- said she was pretty sure
Justice John M. Harlan: Do you suppose the warrant could issue on that kind of -- for his arrest now?
Mr. Melvyn Zarr: It might very well Your Honor and then we would be free to argue.
We contend that that -- the affidavit that led to that warrant was tainted.
Justice John M. Harlan: By what?
Mr. Melvyn Zarr: By the fact that he had already been convicted and apparently her testimony was --
Justice John M. Harlan: That's when she testified at the trial?
Mr. Melvyn Zarr: Yes, sir.
But her testimony at the trial it seems to me Your Honor was influenced very much by what the police had done to him including the statement he confessed at all.
I think that her -- we would be free to argue this would be open at retrial I think Your Honor that that was tainted.
I'm not sure the Court has to get to into it at this point, it seems to be just sufficient to say that petitioner would be able to argue with some subsequent proceeding that the -- a new set however obtained was tainted.
Justice William J. Brennan: I assume that she still live?
Mr. Melvyn Zarr: I believe so.
Justice William J. Brennan: She'd be 80 by now?
Mr. Melvyn Zarr: Just about Your Honor.
Justice Potter Stewart: But you do have what appears to be her positive identification of him made under oath appearing at page 5 of your brief and certainly now, if this conviction was reverse, there would be plenty of probable cause to arrest, wouldn't that be?
Mr. Melvyn Zarr: Your Honor, yes and that is what you put your finger on when its essentially fishy about this case.
That is her original identification was apparently so fussy that it covered the 65 to 70.
At the hospital prior of the 12 and after the 3rd, she wasn't able to identify positively the petitioner and now a year later, she is able to say that she is pretty sure that was Johnny.
Justice Potter Stewart: Now, she says no doubt in mind about it?
Mr. Melvyn Zarr: On --
Justice Potter Stewart: Page 5 of your brief.
Mr. Melvyn Zarr: Yes, sir, now when she says another point that she's pretty sure.
Justice Potter Stewart: Over yonder in that white shirt, yes sir that's him, no doubt in mind about it.
Mr. Melvyn Zarr: And on page 30 of the --
Justice Byron R. White: Well, wasn't she crossed examined about her previous identification or failure to identify?
Mr. Melvyn Zarr: No, no she was not.
The only testimony --
Justice Byron R. White: She wasn't?
Mr. Melvyn Zarr: No, she was not Your Honor.
The only testimony about the hospital -- the failure to identify positively at the hospital is by a juvenile Officer Keller on page 51.
The question, “did Mrs. Key identify him?”
Answer, “Not positively.”
Question, “Mr. Keller, did you say that Mrs. Key did not identify the defendant at the hospital?”
Answer, “that's right.”
That's all what's in the record about that hospital identification.
Justice Thurgood Marshall: I have great problem with your point that if a statement is made under oath that this man is guilty of raping me, the fact that she wasn't sure before makes that statement under oath insufficient of probable cause for one had great problem with that?
Mr. Melvyn Zarr: Well, I do too Your Honor.
Justice Thurgood Marshall: It didn't seem to matter though.
Mr. Melvyn Zarr: My point Your Honor is this that --
Justice Thurgood Marshall: The point that was asked was on the basis of her testimony.
If a new trial is granted, couldn't they get a new set of fingerprints and you said no.
Mr. Melvyn Zarr: I was wrong to say they might and my only point was that if there were a new warrant that this Court needs to decide nothing about that at this time.
And my only point was that the petitioner would be free to argue with some future time that a new set was tainted, that's all my point was Your Honor.
Justice Byron R. White: How did it -- where is the -- where does it appear on the record about her previous inability to identify the defendant?
Mr. Melvyn Zarr: Your Honor, the only testimony that I cited was on page 51 of the appendix where the police juvenile officer in describing one of those detentions between the 3rd and the 12th, he said it was somewhere on the 5th, 6th to 7th, referred to that hospital, short effect.
Justice Byron R. White: And yet she was never crossed examined about that and at the trial?
Mr. Melvyn Zarr: That's right sir, she was not.
Justice Byron R. White: Nor was this that the gentleman calls a witness or yes he was -- yeah he was, yeah.
Mr. Melvyn Zarr: Now, we assert that the both arrest, the first and the last are illegal, but first, we have to deal with the decision by the court below that although the second detention was an arrest, the first detention was not and why?
Well, both times that he was taken into custody, obtained at the station house, interrogated and fingerprinted but the difference the court below holds is at the first time, the police had no intention to charge him with crime but merely wanted to investigate him.
There are two answers to this.
The first is that there is no testimony about police intention after December 3rd.
The only testimony as to the arrest at December 3rd is that which I quoted from earlier page 6 and 7 of the record by the arresting officers.
But there's a sharper answer called for in this case and the fact is this.
That the fact that the officer had an investigative intent only in taking him to the station on December 3rd does not dispense with the constitutional requirements of obtaining a warrant or under circumstances where a warrant maybe excused with showing of probable cause.
To the contrary and this is our central point in the case.
To the contrary, the fact that there was an investigative intention only reinforces the legality of the detention.
Reinforces the conclusion that there was a violation of constitutional safeguards because you can't get a warrant at least under the law of the land for an investigative arrest and you can't show probable cause or you can't take someone down at the station in order to get probable cause to detain him further.
Justice Potter Stewart: Your argument is entirely based on the Fourth Amendment aspects of the Fourteenth Amendment --
Mr. Melvyn Zarr: Yes, sir.
Yes, sir.
Justice Potter Stewart: Entirely?
Mr. Melvyn Zarr: Entirely.
Justice Potter Stewart: Not at all on the Fifth Amendment aspect or the Fourteenth Amendment nor on Generalized Due Process?
Mr. Melvyn Zarr: No, Your Honor.
Justice Potter Stewart: Exclusively on the Fourth, on the --
Mr. Melvyn Zarr: That's right.
Justice Potter Stewart: -- illegal arrest?
Mr. Melvyn Zarr: That was compelled by Schmergel (ph) Your Honor.
Justice Potter Stewart: He -- what else happened during this period of detention?
Mr. Melvyn Zarr: Well Your Honor, let me capsulate like go over it again and see if we can narrow it down.
It was the arrest at December 3rd, the number of pickups by Keller between the 3rd and the 12th, he said four or five times in an attempt to get leads.
And the final detention of December 12th from which he has never been released and that's essentially is it.
You want to direct my attention --
Justice Potter Stewart: No, I just wondered, it can be argued I suppose that the -- that these fingerprints were not the -- were not the result of the arrest necessarily.
Those were his fingerprints, whenever they had been taken; I just wondered what else happened during this -- at the time his fingerprints were taken, on the 12th.
Was he interrogated?
Mr. Melvyn Zarr: Well, the given -- he was taken 90 miles, given a lie detector test.
Justice Potter Stewart: That was later?
Mr. Melvyn Zarr: Yes.
Justice Potter Stewart: Over at Jackson where he was?
Mr. Melvyn Zarr: Right.
And then brought back, kept some more at in jail, finally, his prints were taken at the 14th and those were sent off to Washington and those were introduced in evidence, that's what I called the second set.
There's a reference in the --
Justice Potter Stewart: In twice, it is the fingerprint of what?
23 or 24 other young Negro's were sent to Washington in connection with this case?
Mr. Melvyn Zarr: Yes, Your Honor.
Justice Potter Stewart: As the record shows.
Mr. Melvyn Zarr: On the 14th, same day that his were taken, his second set was taken.
Justice Potter Stewart: Had they -- had all those 23 or 24 have been arrested, does the record show?
Mr. Melvyn Zarr: Is best one conferred from it.
It's a very skimpy record Your Honor.
The best that I can tell all those same kind of treatment had been meted out to them.
They have been taken to the station house and --
Justice Potter Stewart: Taken over Jackson and given lie detector test?
Mr. Melvyn Zarr: No, I don't think --
Justice Potter Stewart: Not that?
Mr. Melvyn Zarr: I don't think that, no.
Therefore to return to the tread of our argument, the failure to obtain a warrant or to make any attempt to show probable cause for the two arrest is explainable by the fact that this was just for an investigate -- just for investigation.
This was an investigative arrest but is not excusable.
Now, I turn to the warrant point first.
The record is clear that there was no warrant for petitioner's arrest on both on the 3rd and 12th.
As I indicated, the police can't get a warrant under the law of the land for such an investigative detention, so that we can understand why no warrant was obtained even though we cannot excuse it.
I see my time is running short so I'll skip --
Justice Potter Stewart: What if they -- what if they just had an arrest even though -- what if they just gone through a neighborhood and said we want to take the fingerprints of all the young Negro's on this neighborhood between the ages of 15 and 20?
Mr. Melvyn Zarr: Well, Your Honor.
I think that under most circumstances, they would actually have to have an arrest warrant in order to take that thing except for the category --
Justice Potter Stewart: Why?
My fingerprints were on file, the FBI --
Justice Thurgood Marshall: What about -- what about --
Justice Potter Stewart: Just because I was in the military service.
Justice Thurgood Marshall: -- if the boy refuses to give him voluntarily?
Mr. Melvyn Zarr: Well, that I like to stop in freeze bone, they escalate into a situation where he then becomes under greater suspicion but I think that I'm willing to concede that there maybe a very narrow category of cases called voluntary giving of fingerprint cases in which the person actually knows that nothing will happen if he refuses to comply but that's not this case.
Justice Potter Stewart: Well, my question really is, is that your claim at all that taking of his fingerprints as such violated any provision of the constitution.
Mr. Melvyn Zarr: Oh no, no, Your Honor.
Our contention is grounded upon the fact that --
Justice Potter Stewart: Its only at the time and place when they were taken, he under you say illegal arrest?
Mr. Melvyn Zarr: Yes, sir.
Our contention --
Justice Potter Stewart: Yes, that you're only trying --
Mr. Melvyn Zarr: Is grounded upon the fact that there was illegal police conduct.
Outrageously illegal police conduct and the fact that these fingerprints were the product of this illegal police conduct means that -- if the exclusionary rule means anything that these fingerprints should be excluded.
Justice Byron R. White: What should you argue to say a thing that they did go around the neighborhood then say, let me have your fingerprints and he said no, and they wind up getting where they're taking fingerprints right there on the spots where --
Mr. Melvyn Zarr: They would have to have a warrant for that kind of --
Justice Byron R. White: Taking involuntary (Inaudible)
Mr. Melvyn Zarr: Yes, sir, without a warrant.
Yes sir.
Justice Byron R. White: Or without a doubt, without a legal remedy?
Mr. Melvyn Zarr: That's right.
Unless -- unless Mr. Justice White and here's my point.
There's one of this narrow category cases that's really voluntary in giving a fingerprints.
Justice Byron R. White: Well, I know but I called everybody just to go --
Mr. Melvyn Zarr: Yes, sure.
Let me continue quickly to the point that there was another attempt to show probable cause for either arrest that of December 3rd or December 12th.
Again, it was impossible for the police to do so.
It's clear from the record that all they want to do is investigate, so of course there was no probable cause.
Finally, I come to the court below ruling that fingerprints are excluded from the operation in the exclusionary rule in Fourth -- in the Fourth Amendment and I start with this Court's landmark ruling in Mapp v. Ohio that all of us obtained by searches and seizures are violation of the Constitution is inadmissible in state proceedings.
I do want to save some time for rebuttal and so I think I'll stop here.
The argument on fingerprints and their subjection to the exclusionary rule as contained in our brief and I'll save the remainder of my time for rebuttal.
Chief Justice Earl Warren: Mr. Lyell.
Argument of G. Garland Lyell, Jr.
Mr. G. Garland Lyell, Jr.: Mr. Chief Justice, may it please the Court.
I'll be as brief as possible because I can see most of the cites of counsel is already of no probable cause appearing in this record for the second arrest and I'm really not concerned with the second arrest and I don't mean to use that word second arrest in the sense that there was first.
Well, the state's position is this that there's a heinous crime unsolved.
The only leads they've got is two what fingerprints and a palm print in the window sill and the window pane on the victim's home.
This has got nothing to do with merits of the Court might be asked to know that Mrs. Key, is a mother of Al and Fred Key who in the turn deserves at the world endurance flight plain record -- plane flight record which still stands, except the light plan of (Inaudible) of 37 days.
Justice Potter Stewart: Is that the question mark?
Is that the name of that plane?
Mr. G. Garland Lyell, Jr.: I believe it was Your Honor.
Justice Potter Stewart: Yes.
Mr. G. Garland Lyell, Jr.: Now, here we have this a crime and the record is slim as to what lead -- led the police to pick this boy up, evidently, he won the first but not the first picked up and interrogated.
Now, I'm thriving on a proposition, please the Court, generalized statements from the case like Culombe versus Connecticut which was reversed by other reasons that this was a general inquiry into another unsolved crime and often there -- this is quoted, “often there is little else the police can do than interrogate suspects as an independent part of criminal investigations.”
And to further quotes from the opinion and probably the most restrict piece this quote of evidence now from investigations Miranda, “general on the same questioning as to facts surrounding a crime,” in which to emphasis this language.
All other general questioning of citizens in the fact finding process is not affected by a vote.
And further that fingerprints fall in a different category -- testimony that is presents as held in Schmergel (ph) versus California that it even had taken a bluff over objection was a perfect form as long as it's done in clinical conditions as was done in this case.
Justice Thurgood Marshall: But why still on Miranda?
In Miranda also say when a person was then held in restraint?
Mr. G. Garland Lyell, Jr.: Mr. Justice Marshall, it's the state's position that in a case of this kind where you got no positive identity and the record is slim as it says to what leads the police could get from Mrs. Key.
I believe the original as the Supreme Court record is here and you see pictures in the record of Mrs. Key in the hospital bed and like bruises about the face and I think on that.
And it's just my conjecture and her age in having gone through what she had.
She was not in a position to give them very much information but suffice to say as our State Supreme Court went along with my argument on that this boy and incidentally was only 14 at the time of this and I'm satisfied because of his youth that he didn't get the death penalty, his youth and the age of the victim.
Justice Thurgood Marshall: But my question was, was he in restraint when the fingerprints were taken?
Mr. G. Garland Lyell, Jr.: My answer sir is this.
He was in restraint but not under arrest in the legal --
Justice Thurgood Marshall: But doesn't --
Mr. G. Garland Lyell, Jr.: -- sense of the word.
Justice Thurgood Marshall: It doesn't restraint, put him under Miranda.
Mr. G. Garland Lyell, Jr.: But Miranda has only to do with testimonial evidence, Mr. Justice Marshall.
Justice Thurgood Marshall: Yeah but you had said that this was distinguished from Miranda.
I was waiting to get to where you have distinguished.
Mr. G. Garland Lyell, Jr.: The distinction is set out in Schmergel (ph) versus California and other cases signing there is.
Justice Potter Stewart: There is no Miranda claim that -- your adversary is not relying one bit on Miranda, Miranda is Fifth Amendment.
Justice Thurgood Marshall: That's right.
Mr. G. Garland Lyell, Jr.: I understand that but I'm getting back to the Fourth Amendment on the arrest and it's our position that it was not illegal -- an arrest in the legal sense of the word, that it was part of a fact finding process.
Justice Byron R. White: Do you intend that his appearance which voluntary here --
Mr. G. Garland Lyell, Jr.: Mr. Justice White, I wouldn't say it was voluntary, I don't know, that didn't go into that.
Justice Byron R. White: Did they just brought him down here --
Mr. G. Garland Lyell, Jr.: The 14-year old boy?
I wouldn't say that.
I can't say but I wouldn't say this was voluntary.
It wasn't developed and confirmed.
Justice Thurgood Marshall: How many did they bring there voluntarily?
Mr. G. Garland Lyell, Jr.: Mr. Justice Marshall, I think the record show they interrogated the 26, 27 and nobody remembered for sure and I think they both --
Justice Thurgood Marshall: And they interrogated them all at the precinct?
Mr. G. Garland Lyell, Jr.: No, sir.
Justice Thurgood Marshall: Where did they interrogate the other one?
Mr. G. Garland Lyell, Jr.: The record doesn't show, apparently home, schools, I just don't have the conjecture.
Justice Thurgood Marshall: Well, why did they bring this one down there?
Mr. G. Garland Lyell, Jr.: They brought this one and down 26 were they --
Justice Thurgood Marshall: Was --
Mr. G. Garland Lyell, Jr.: The last one in 20 somewhat others --
Justice Thurgood Marshall: For 20 somewhat others --
Mr. G. Garland Lyell, Jr.: And --
Justice Thurgood Marshall: -- the police went up to him and said, "Would you mind please coming along with me."
Or did they say, "Come on boy?"
Mr. G. Garland Lyell, Jr.: It doesn't show.
Justice Thurgood Marshall: What do you think?
Mr. G. Garland Lyell, Jr.: Well, Mr. Justice Marshall, at the -- again per conjecture on my part, I know -- I know at least there's no indication in this record that anybody was intimidated.
I'm sure that's what you getting at and as a matter of fact, what little it is in the record about the trip to Jackson.
I believe the record shows that almost positive that the boy's mother approved but I'm not -- I'm trying to forget the second, the third what I say is the first legal arrest and the trip to Jackson because even though I was there there's been some statement against some old but it was not used in the trial, nothing as a result of his arrest when he was taken to Jackson was used at the trial.
Justice Hugo L. Black: You think the question of whether that was an “arrest” is a crucial indication?
Mr. G. Garland Lyell, Jr.: I think it does.
I think that's the question Mr. Justice Black.
Justice Hugo L. Black: You think that's the case they have presented?
Mr. G. Garland Lyell, Jr.: Then my way of thinking is the question was they arrested when he was first interrogated and printed at police headquarters.
Justice Byron R. White: Well, if the fingerprints -- the fingerprints were used for what?
Mr. G. Garland Lyell, Jr.: Well, there again Mr. Justice White --
Justice Byron R. White: You're just saying that they --
Mr. G. Garland Lyell, Jr.: I'm saying --
Justice Byron R. White: They did it before.
Mr. G. Garland Lyell, Jr.: So, that I'll get them sooner, give them prints that was sort of a clerical error, and officers police department over there at Meridian and its certainly under Chapman versus California, the officer beyond a reasonable doubt.
Chief Justice Earl Warren: We'll raise this whole part.
We'll recess now then Mr. Lyell.
Print this transcript
Transcript:
Argument of Melvyn Zarr
Chief Justice Earl Warren: Number 645, John Davis, petitioner versus Mississippi.
Mr. Zarr.
Mr. Melvyn Zarr: Mr. Chief Justice, may it please the Court.
This case is here in writ of certiorari to the Supreme Court of Mississippi to review petitioner's criminal conviction.
Petitioner John Davis, a 14-year old Negro boy was convicted of raping an 86-year old white woman for whom he had done yard work and he as sentence to life imprisonment.
This Court granted the petitioner's petition for writ of certiorari and forms a purpose to consider whether the police conduct evidence by this case contriving in the Fourth and Fourteenth Amendments of the Constitution of the United States, and if so, whether the product of that illegal police conduct, petitioner's fingerprints was properly admitted into evidence at petitioner's trial.
Briefly, the facts of this, starting December 3, 1965, the police of Meridian, Mississippi took into custody for investigation some 65 to 70 Negro boys.
Now, what they were investigating was a complaint of rape by an 86-year old white woman, who had reported to the police that she had been attacked in her home by a Negro youth on the evening of December 2nd, apparently around seven o'clock.
The nature of her description is uncertain but its quality can be inferred from the number of suspects that appeared to cover.
Two partial fingerprints had been found on the outside of a window and a partial palm print that's been found in the inside window sill.
On this basis, they drag had begun.
The petitioner, a 14-year old Negro boy, who had done yard work for the woman was one of the 65 to 70 Negro boys taken into custody.
The petitioner was taken to the police headquarters on December 3rd, questioned, fingerprinted and released.
The others apparently went to a similar procedure.
Now, it's quite clear from the record that there was no warrant for petitioner's detention.
Why?
The reason is best capsulized in respondent's brief at page 2 in these terms, I'd like to quote it, “that none of the 65 or 70 who are interrogated or picked up were suspects but were only interrogated and printed by the police in an effort to get leads to establish probable cause to arrest the guilty party.”
That was on page 2 of the respondent's brief.
Now, at that December 3rd detention, which was the petitioner's first detention, he was fingerprinted and those sets I shall refer to as the first set.
They were never analyzed nor introduced in evidence and nothing further has been heard of them.
Now, between December 3rd and 7th, he was taken into custody in the words of the police juvenile Officer Keller about four or five times.
Officer Keller testified that he was picked up in an attempt to get leads, those are his words, and on at least one occasion the petitioner was taken to the hospital and exhibited to the prosecutor for a “gage to go by on size and color.”
However, there was apparently no positive identification even though the record is clear that the petitioner had done some yard work for her recently as two weeks before.
The last detention from which the fingerprints that were introduced in the evidence is second set was green was on -- begin on December 12th, again without a warrant.
He was driven to Jackson having been picked up by Officer Keller and Chief Bedingfield, kept overnight to the Jackson jail, given a lie detector test the following day and return to the Meridian jail.
On December 14th, this second set was taken and sent off to the FBI laboratory in Washington together with the prints of approximately 23 of Negro boys who were still under suspicion at that time.
On December 14th, all the record does not show that he was charged with juvenile delinquency for breaking into the woman's home.
Three days later, his case was certified by the juvenile judge after hearing to the Circuit Court of Lauderdale County, in which Court he was indicted and tried.
Justice Potter Stewart: What was the -- it was the breaking into the woman's home the same -- the same -- part of the same offense --
Mr. Melvyn Zarr: Yes sir.
Justice Potter Stewart: Which is now been tried and convicted?
Mr. Melvyn Zarr: Yes sir.
Justice Potter Stewart: I see.
Mr. Melvyn Zarr: At the trial, the testimony presented by the State, well, before I get to that, let me first say that preliminarily, petitioner's counsel moved to suppress the introduction of evidence of a second set of fingerprints as violative of his rights into the Fourth and Fourteenth Amendments.
After a hearing this motion was denied, the prosecution's case consisted of the woman's testimony, we just capsulized at page 4 and 5 of our brief to the effect that that he had done yard work for her.
A description of the attack which is contained and set out in the brief, there was no medical evidence, the second set of fingerprints came in over objection and he was convicted and sentenced to life imprisonment.
Justice William J. Brennan: Where was the second set of fingerprints you drawn first?
Mr. Melvyn Zarr: I have no idea Your Honor.
The testimony in the record when that was asked by Ms. Yang of the detective Scarborough, he merely said that they were very busy and they were just -- they just never got around to setting the first set out.
Justice Potter Stewart: It doesn't make any difference to your argument which set was used?
Mr. Melvyn Zarr: No, sir.
But except for this.
The respondent argues that even assuming for purpose of the argument which he is willing to do that the second detention, that is -- the last detention that is December 12 which he yields at the second set, even assuming that that detention was illegal.
This Court should still hold the conviction because on a retrial, this first set which possibly sitting in the file supplies --
Justice John M. Harlan: I got no file --
Mr. Melvyn Zarr: Oh, yes sir.
Yes, sir.
But my point about both --
Justice John M. Harlan: There might not have been any arrest at the first occasion.
Mr. Melvyn Zarr: Yes, we contend that there was Your Honor.
Justice John M. Harlan: I know you do but the facts are different.
Mr. Melvyn Zarr: Well, Your Honor, the only testimony as to this first detention which we call an arrest that of December 3rd was by officer Griffin on page 6 and officer Thompson on page 6 and 7.
He was asked question, “Didn't you have occasion on December 3rd last year to arrest the defendant John Davis?”
Answer, “I did.”
“Did you tell the Court whether or not you had a warrant for his arrest?”
Answer, “I did not.”
Question, “you did not have a warrant for his arrest?”
Almost the identical testimony was conducted by Mr. Yang and Mr. Thompson, Officer Thompson and that is the only, only evidence in the record about that December 3rd arrest.
Justice John M. Harlan: They didn't take him to the station now to investigate?
Mr. Melvyn Zarr: Yes, they did Your Honor.
Justice John M. Harlan: Oh, they did?
Mr. Melvyn Zarr: Yes, they did on the -- under December 3rd.
Justice Potter Stewart: Then on December 12 which you did not tell us was the time when the fingerprints were, they were actually used.
Mr. Melvyn Zarr: Yes, sir.
Justice Potter Stewart: Where is the testimony about that episode, I mean about the circumstances of the arrest that you quoted now?
Mr. Melvyn Zarr: It's scattered throughout the record Your Honor.
On page 8, the police officer -- Chief Bedingfield testified here that middle of the page that he went with the petitioner to Jackson on the 12th.
On page 10, the -- Officer Keller testifies near the bottom of the page.
Question now, “When you picked him up on the 12th, did you have a warrant at that time for his arrest?”
The answer, “no.”
Few answers previous to that is a testimony of the effect that they in fact did pick him up on the 12th.
The Mississippi Supreme Court held that on the 12th, he was arrested.
On page 58 of the appendix about 10 lines down the Court says, however on December 12th, the appellant actually was arrested, brought to Jackson and subjected to a lie detector test and of course that's supported by the record.
Let me back up for one moment and discuss what the Mississippi Supreme Court held, two things.
One, that the detention yielding the prints was not an arrest, this probably based on the mistaken assumption that the prints had been taken as a result of the first detention, those who were introduced in evidence were the product of the first detention.
And secondly, apparently alternatively, the print should not be excluded because they are authentic.
Now, respondent argues and I better complete this argument that the -- even though -- even assuming argument that the prints, the second set of prints are to be excludable as a result of a -- an illegal arrest.
The conviction must yet be affirmed because on and assured retrial, the first set which is presumably lying around some place hasn't been used could be introduced, and therefore to reverse this conviction would be “a useless gesture” quoting from the brief at page 8, to reverse this conviction only to submit the first set of prints to be introduced in evidence at John's retrial.
This argument of course assumes that the first detention was legal and we maintain quite the contrary and urge the Court to set at rest the constitutional sides of both sets of prints in order to forestall the necessity of further review by this Court.
Justice John M. Harlan: What if both sets are excludable?
What about instilling other set?
Mr. Melvyn Zarr: Well Your Honor, we assume that traditional scope obtained principles will apply and it would be free to -- a position would free at some subsequent time as a retrial to challenge a new set of prints as a product of the original obtained.
Justice John M. Harlan: Well, what if a -- what if the police just go around to his house and ask him for his fingerprints and he says, no, and they say, well, we want they anyway and we're going to take them and they get his fingerprints.
Mr. Melvyn Zarr: You mean not in this case Your Honor but just some types of set of --
Justice John M. Harlan: No, in this case.
Lets say its reverse -- let assume its reversed --
Mr. Melvyn Zarr: Yes.
Justice John M. Harlan: Then they say, well, we'll go around and get his fingerprints now and they go around to his house and say give us your fingerprints and he says no --
Mr. Melvyn Zarr: Well, would that be under the --
Justice John M. Harlan: And then they take his fingerprints, that's all they do is take his fingerprint.
Mr. Melvyn Zarr: Well, I'm going to assume Your Honor that they would have to go to his house, if they were willing to do this legally this time with a warrant and they would depend on what -- on what that warrant was based on.
If it fact was based upon her affidavit, Mrs. Key's affidavit, the prosecutor's affidavit and that affidavit was in fact tainted by this prior set of fingerprints, then we would assume a scope obtained principle would apply and that could be excluded but it would depend on what the facts at a later hearing would turn up.
Justice John M. Harlan: Would you say there is no way, no legal way that officers may or the police or investigators may get a set of fingerprints of a suspect until and unless they have probable cause to arrest as long as he objects to it?
Mr. Melvyn Zarr: That's right Your Honor and I think that there may be a narrow exception for true voluntary detention.
I think that it's possible that one could conceive a situation which is this is an action voluntarily to give his prints in order to eliminate any suspicion of himself but of course this Court's voluntariness test would have to apply.
He have to knowingly and freely involuntarily give up his prints and asserting well that they would have to knowingly, knowingly that he could refuse and nothing would happen, that he have to knowingly give up his prints.
Justice John M. Harlan: Didn't this lady identify him at the trial?
Mr. Melvyn Zarr: Yes she did Your Honor.
Justice John M. Harlan: And on a sworn testimony that's the man?
Mr. Melvyn Zarr: Yes, sir.
She was -- said she was pretty sure
Justice John M. Harlan: Do you suppose the warrant could issue on that kind of -- for his arrest now?
Mr. Melvyn Zarr: It might very well Your Honor and then we would be free to argue.
We contend that that -- the affidavit that led to that warrant was tainted.
Justice John M. Harlan: By what?
Mr. Melvyn Zarr: By the fact that he had already been convicted and apparently her testimony was --
Justice John M. Harlan: That's when she testified at the trial?
Mr. Melvyn Zarr: Yes, sir.
But her testimony at the trial it seems to me Your Honor was influenced very much by what the police had done to him including the statement he confessed at all.
I think that her -- we would be free to argue this would be open at retrial I think Your Honor that that was tainted.
I'm not sure the Court has to get to into it at this point, it seems to be just sufficient to say that petitioner would be able to argue with some subsequent proceeding that the -- a new set however obtained was tainted.
Justice William J. Brennan: I assume that she still live?
Mr. Melvyn Zarr: I believe so.
Justice William J. Brennan: She'd be 80 by now?
Mr. Melvyn Zarr: Just about Your Honor.
Justice Potter Stewart: But you do have what appears to be her positive identification of him made under oath appearing at page 5 of your brief and certainly now, if this conviction was reverse, there would be plenty of probable cause to arrest, wouldn't that be?
Mr. Melvyn Zarr: Your Honor, yes and that is what you put your finger on when its essentially fishy about this case.
That is her original identification was apparently so fussy that it covered the 65 to 70.
At the hospital prior of the 12 and after the 3rd, she wasn't able to identify positively the petitioner and now a year later, she is able to say that she is pretty sure that was Johnny.
Justice Potter Stewart: Now, she says no doubt in mind about it?
Mr. Melvyn Zarr: On --
Justice Potter Stewart: Page 5 of your brief.
Mr. Melvyn Zarr: Yes, sir, now when she says another point that she's pretty sure.
Justice Potter Stewart: Over yonder in that white shirt, yes sir that's him, no doubt in mind about it.
Mr. Melvyn Zarr: And on page 30 of the --
Justice Byron R. White: Well, wasn't she crossed examined about her previous identification or failure to identify?
Mr. Melvyn Zarr: No, no she was not.
The only testimony --
Justice Byron R. White: She wasn't?
Mr. Melvyn Zarr: No, she was not Your Honor.
The only testimony about the hospital -- the failure to identify positively at the hospital is by a juvenile Officer Keller on page 51.
The question, “did Mrs. Key identify him?”
Answer, “Not positively.”
Question, “Mr. Keller, did you say that Mrs. Key did not identify the defendant at the hospital?”
Answer, “that's right.”
That's all what's in the record about that hospital identification.
Justice Thurgood Marshall: I have great problem with your point that if a statement is made under oath that this man is guilty of raping me, the fact that she wasn't sure before makes that statement under oath insufficient of probable cause for one had great problem with that?
Mr. Melvyn Zarr: Well, I do too Your Honor.
Justice Thurgood Marshall: It didn't seem to matter though.
Mr. Melvyn Zarr: My point Your Honor is this that --
Justice Thurgood Marshall: The point that was asked was on the basis of her testimony.
If a new trial is granted, couldn't they get a new set of fingerprints and you said no.
Mr. Melvyn Zarr: I was wrong to say they might and my only point was that if there were a new warrant that this Court needs to decide nothing about that at this time.
And my only point was that the petitioner would be free to argue with some future time that a new set was tainted, that's all my point was Your Honor.
Justice Byron R. White: How did it -- where is the -- where does it appear on the record about her previous inability to identify the defendant?
Mr. Melvyn Zarr: Your Honor, the only testimony that I cited was on page 51 of the appendix where the police juvenile officer in describing one of those detentions between the 3rd and the 12th, he said it was somewhere on the 5th, 6th to 7th, referred to that hospital, short effect.
Justice Byron R. White: And yet she was never crossed examined about that and at the trial?
Mr. Melvyn Zarr: That's right sir, she was not.
Justice Byron R. White: Nor was this that the gentleman calls a witness or yes he was -- yeah he was, yeah.
Mr. Melvyn Zarr: Now, we assert that the both arrest, the first and the last are illegal, but first, we have to deal with the decision by the court below that although the second detention was an arrest, the first detention was not and why?
Well, both times that he was taken into custody, obtained at the station house, interrogated and fingerprinted but the difference the court below holds is at the first time, the police had no intention to charge him with crime but merely wanted to investigate him.
There are two answers to this.
The first is that there is no testimony about police intention after December 3rd.
The only testimony as to the arrest at December 3rd is that which I quoted from earlier page 6 and 7 of the record by the arresting officers.
But there's a sharper answer called for in this case and the fact is this.
That the fact that the officer had an investigative intent only in taking him to the station on December 3rd does not dispense with the constitutional requirements of obtaining a warrant or under circumstances where a warrant maybe excused with showing of probable cause.
To the contrary and this is our central point in the case.
To the contrary, the fact that there was an investigative intention only reinforces the legality of the detention.
Reinforces the conclusion that there was a violation of constitutional safeguards because you can't get a warrant at least under the law of the land for an investigative arrest and you can't show probable cause or you can't take someone down at the station in order to get probable cause to detain him further.
Justice Potter Stewart: Your argument is entirely based on the Fourth Amendment aspects of the Fourteenth Amendment --
Mr. Melvyn Zarr: Yes, sir.
Yes, sir.
Justice Potter Stewart: Entirely?
Mr. Melvyn Zarr: Entirely.
Justice Potter Stewart: Not at all on the Fifth Amendment aspect or the Fourteenth Amendment nor on Generalized Due Process?
Mr. Melvyn Zarr: No, Your Honor.
Justice Potter Stewart: Exclusively on the Fourth, on the --
Mr. Melvyn Zarr: That's right.
Justice Potter Stewart: -- illegal arrest?
Mr. Melvyn Zarr: That was compelled by Schmergel (ph) Your Honor.
Justice Potter Stewart: He -- what else happened during this period of detention?
Mr. Melvyn Zarr: Well Your Honor, let me capsulate like go over it again and see if we can narrow it down.
It was the arrest at December 3rd, the number of pickups by Keller between the 3rd and the 12th, he said four or five times in an attempt to get leads.
And the final detention of December 12th from which he has never been released and that's essentially is it.
You want to direct my attention --
Justice Potter Stewart: No, I just wondered, it can be argued I suppose that the -- that these fingerprints were not the -- were not the result of the arrest necessarily.
Those were his fingerprints, whenever they had been taken; I just wondered what else happened during this -- at the time his fingerprints were taken, on the 12th.
Was he interrogated?
Mr. Melvyn Zarr: Well, the given -- he was taken 90 miles, given a lie detector test.
Justice Potter Stewart: That was later?
Mr. Melvyn Zarr: Yes.
Justice Potter Stewart: Over at Jackson where he was?
Mr. Melvyn Zarr: Right.
And then brought back, kept some more at in jail, finally, his prints were taken at the 14th and those were sent off to Washington and those were introduced in evidence, that's what I called the second set.
There's a reference in the --
Justice Potter Stewart: In twice, it is the fingerprint of what?
23 or 24 other young Negro's were sent to Washington in connection with this case?
Mr. Melvyn Zarr: Yes, Your Honor.
Justice Potter Stewart: As the record shows.
Mr. Melvyn Zarr: On the 14th, same day that his were taken, his second set was taken.
Justice Potter Stewart: Had they -- had all those 23 or 24 have been arrested, does the record show?
Mr. Melvyn Zarr: Is best one conferred from it.
It's a very skimpy record Your Honor.
The best that I can tell all those same kind of treatment had been meted out to them.
They have been taken to the station house and --
Justice Potter Stewart: Taken over Jackson and given lie detector test?
Mr. Melvyn Zarr: No, I don't think --
Justice Potter Stewart: Not that?
Mr. Melvyn Zarr: I don't think that, no.
Therefore to return to the tread of our argument, the failure to obtain a warrant or to make any attempt to show probable cause for the two arrest is explainable by the fact that this was just for an investigate -- just for investigation.
This was an investigative arrest but is not excusable.
Now, I turn to the warrant point first.
The record is clear that there was no warrant for petitioner's arrest on both on the 3rd and 12th.
As I indicated, the police can't get a warrant under the law of the land for such an investigative detention, so that we can understand why no warrant was obtained even though we cannot excuse it.
I see my time is running short so I'll skip --
Justice Potter Stewart: What if they -- what if they just had an arrest even though -- what if they just gone through a neighborhood and said we want to take the fingerprints of all the young Negro's on this neighborhood between the ages of 15 and 20?
Mr. Melvyn Zarr: Well, Your Honor.
I think that under most circumstances, they would actually have to have an arrest warrant in order to take that thing except for the category --
Justice Potter Stewart: Why?
My fingerprints were on file, the FBI --
Justice Thurgood Marshall: What about -- what about --
Justice Potter Stewart: Just because I was in the military service.
Justice Thurgood Marshall: -- if the boy refuses to give him voluntarily?
Mr. Melvyn Zarr: Well, that I like to stop in freeze bone, they escalate into a situation where he then becomes under greater suspicion but I think that I'm willing to concede that there maybe a very narrow category of cases called voluntary giving of fingerprint cases in which the person actually knows that nothing will happen if he refuses to comply but that's not this case.
Justice Potter Stewart: Well, my question really is, is that your claim at all that taking of his fingerprints as such violated any provision of the constitution.
Mr. Melvyn Zarr: Oh no, no, Your Honor.
Our contention is grounded upon the fact that --
Justice Potter Stewart: Its only at the time and place when they were taken, he under you say illegal arrest?
Mr. Melvyn Zarr: Yes, sir.
Our contention --
Justice Potter Stewart: Yes, that you're only trying --
Mr. Melvyn Zarr: Is grounded upon the fact that there was illegal police conduct.
Outrageously illegal police conduct and the fact that these fingerprints were the product of this illegal police conduct means that -- if the exclusionary rule means anything that these fingerprints should be excluded.
Justice Byron R. White: What should you argue to say a thing that they did go around the neighborhood then say, let me have your fingerprints and he said no, and they wind up getting where they're taking fingerprints right there on the spots where --
Mr. Melvyn Zarr: They would have to have a warrant for that kind of --
Justice Byron R. White: Taking involuntary (Inaudible)
Mr. Melvyn Zarr: Yes, sir, without a warrant.
Yes sir.
Justice Byron R. White: Or without a doubt, without a legal remedy?
Mr. Melvyn Zarr: That's right.
Unless -- unless Mr. Justice White and here's my point.
There's one of this narrow category cases that's really voluntary in giving a fingerprints.
Justice Byron R. White: Well, I know but I called everybody just to go --
Mr. Melvyn Zarr: Yes, sure.
Let me continue quickly to the point that there was another attempt to show probable cause for either arrest that of December 3rd or December 12th.
Again, it was impossible for the police to do so.
It's clear from the record that all they want to do is investigate, so of course there was no probable cause.
Finally, I come to the court below ruling that fingerprints are excluded from the operation in the exclusionary rule in Fourth -- in the Fourth Amendment and I start with this Court's landmark ruling in Mapp v. Ohio that all of us obtained by searches and seizures are violation of the Constitution is inadmissible in state proceedings.
I do want to save some time for rebuttal and so I think I'll stop here.
The argument on fingerprints and their subjection to the exclusionary rule as contained in our brief and I'll save the remainder of my time for rebuttal.
Chief Justice Earl Warren: Mr. Lyell.
Argument of G. Garland Lyell, Jr.
Mr. G. Garland Lyell, Jr.: Mr. Chief Justice, may it please the Court.
I'll be as brief as possible because I can see most of the cites of counsel is already of no probable cause appearing in this record for the second arrest and I'm really not concerned with the second arrest and I don't mean to use that word second arrest in the sense that there was first.
Well, the state's position is this that there's a heinous crime unsolved.
The only leads they've got is two what fingerprints and a palm print in the window sill and the window pane on the victim's home.
This has got nothing to do with merits of the Court might be asked to know that Mrs. Key, is a mother of Al and Fred Key who in the turn deserves at the world endurance flight plain record -- plane flight record which still stands, except the light plan of (Inaudible) of 37 days.
Justice Potter Stewart: Is that the question mark?
Is that the name of that plane?
Mr. G. Garland Lyell, Jr.: I believe it was Your Honor.
Justice Potter Stewart: Yes.
Mr. G. Garland Lyell, Jr.: Now, here we have this a crime and the record is slim as to what lead -- led the police to pick this boy up, evidently, he won the first but not the first picked up and interrogated.
Now, I'm thriving on a proposition, please the Court, generalized statements from the case like Culombe versus Connecticut which was reversed by other reasons that this was a general inquiry into another unsolved crime and often there -- this is quoted, “often there is little else the police can do than interrogate suspects as an independent part of criminal investigations.”
And to further quotes from the opinion and probably the most restrict piece this quote of evidence now from investigations Miranda, “general on the same questioning as to facts surrounding a crime,” in which to emphasis this language.
All other general questioning of citizens in the fact finding process is not affected by a vote.
And further that fingerprints fall in a different category -- testimony that is presents as held in Schmergel (ph) versus California that it even had taken a bluff over objection was a perfect form as long as it's done in clinical conditions as was done in this case.
Justice Thurgood Marshall: But why still on Miranda?
In Miranda also say when a person was then held in restraint?
Mr. G. Garland Lyell, Jr.: Mr. Justice Marshall, it's the state's position that in a case of this kind where you got no positive identity and the record is slim as it says to what leads the police could get from Mrs. Key.
I believe the original as the Supreme Court record is here and you see pictures in the record of Mrs. Key in the hospital bed and like bruises about the face and I think on that.
And it's just my conjecture and her age in having gone through what she had.
She was not in a position to give them very much information but suffice to say as our State Supreme Court went along with my argument on that this boy and incidentally was only 14 at the time of this and I'm satisfied because of his youth that he didn't get the death penalty, his youth and the age of the victim.
Justice Thurgood Marshall: But my question was, was he in restraint when the fingerprints were taken?
Mr. G. Garland Lyell, Jr.: My answer sir is this.
He was in restraint but not under arrest in the legal --
Justice Thurgood Marshall: But doesn't --
Mr. G. Garland Lyell, Jr.: -- sense of the word.
Justice Thurgood Marshall: It doesn't restraint, put him under Miranda.
Mr. G. Garland Lyell, Jr.: But Miranda has only to do with testimonial evidence, Mr. Justice Marshall.
Justice Thurgood Marshall: Yeah but you had said that this was distinguished from Miranda.
I was waiting to get to where you have distinguished.
Mr. G. Garland Lyell, Jr.: The distinction is set out in Schmergel (ph) versus California and other cases signing there is.
Justice Potter Stewart: There is no Miranda claim that -- your adversary is not relying one bit on Miranda, Miranda is Fifth Amendment.
Justice Thurgood Marshall: That's right.
Mr. G. Garland Lyell, Jr.: I understand that but I'm getting back to the Fourth Amendment on the arrest and it's our position that it was not illegal -- an arrest in the legal sense of the word, that it was part of a fact finding process.
Justice Byron R. White: Do you intend that his appearance which voluntary here --
Mr. G. Garland Lyell, Jr.: Mr. Justice White, I wouldn't say it was voluntary, I don't know, that didn't go into that.
Justice Byron R. White: Did they just brought him down here --
Mr. G. Garland Lyell, Jr.: The 14-year old boy?
I wouldn't say that.
I can't say but I wouldn't say this was voluntary.
It wasn't developed and confirmed.
Justice Thurgood Marshall: How many did they bring there voluntarily?
Mr. G. Garland Lyell, Jr.: Mr. Justice Marshall, I think the record show they interrogated the 26, 27 and nobody remembered for sure and I think they both --
Justice Thurgood Marshall: And they interrogated them all at the precinct?
Mr. G. Garland Lyell, Jr.: No, sir.
Justice Thurgood Marshall: Where did they interrogate the other one?
Mr. G. Garland Lyell, Jr.: The record doesn't show, apparently home, schools, I just don't have the conjecture.
Justice Thurgood Marshall: Well, why did they bring this one down there?
Mr. G. Garland Lyell, Jr.: They brought this one and down 26 were they --
Justice Thurgood Marshall: Was --
Mr. G. Garland Lyell, Jr.: The last one in 20 somewhat others --
Justice Thurgood Marshall: For 20 somewhat others --
Mr. G. Garland Lyell, Jr.: And --
Justice Thurgood Marshall: -- the police went up to him and said, "Would you mind please coming along with me."
Or did they say, "Come on boy?"
Mr. G. Garland Lyell, Jr.: It doesn't show.
Justice Thurgood Marshall: What do you think?
Mr. G. Garland Lyell, Jr.: Well, Mr. Justice Marshall, at the -- again per conjecture on my part, I know -- I know at least there's no indication in this record that anybody was intimidated.
I'm sure that's what you getting at and as a matter of fact, what little it is in the record about the trip to Jackson.
I believe the record shows that almost positive that the boy's mother approved but I'm not -- I'm trying to forget the second, the third what I say is the first legal arrest and the trip to Jackson because even though I was there there's been some statement against some old but it was not used in the trial, nothing as a result of his arrest when he was taken to Jackson was used at the trial.
Justice Hugo L. Black: You think the question of whether that was an “arrest” is a crucial indication?
Mr. G. Garland Lyell, Jr.: I think it does.
I think that's the question Mr. Justice Black.
Justice Hugo L. Black: You think that's the case they have presented?
Mr. G. Garland Lyell, Jr.: Then my way of thinking is the question was they arrested when he was first interrogated and printed at police headquarters.
Justice Byron R. White: Well, if the fingerprints -- the fingerprints were used for what?
Mr. G. Garland Lyell, Jr.: Well, there again Mr. Justice White --
Justice Byron R. White: You're just saying that they --
Mr. G. Garland Lyell, Jr.: I'm saying --
Justice Byron R. White: They did it before.
Mr. G. Garland Lyell, Jr.: So, that I'll get them sooner, give them prints that was sort of a clerical error, and officers police department over there at Meridian and its certainly under Chapman versus California, the officer beyond a reasonable doubt.
Chief Justice Earl Warren: We'll raise this whole part.
We'll recess now then Mr. Lyell.
Print this transcript
Transcript:
Argument of Melvyn Zarr
Chief Justice Earl Warren: Number 645, John Davis, petitioner versus Mississippi.
Mr. Zarr, you may continue with your argument.
Mr. Melvyn Zarr: Mr. Chief Justice, may it please the Court.
I'd like to summarize the major points I made yesterday and then say a few things about the record.
The major points were these; one, that the petitioner was caught up in a police dragnet.
Two, that the two detentions of petitioner yielding the two sets of fingerprints were illegal arrest because in the first place, in neither case was there was a warrant to earn any attempt to show exigent circumstances excusing a warrant.
And secondly, even assuming that the warrant requirement could somehow be excused in this case, there was no attempt by the state to show probable cause to arrest.
Next the fact that these arrests were for investigation only explains but cannot excuse the failure to comply with these constitutional safeguards, and last that fingerprints are not accepted from the operation of the exclusionary rule.
Now, counsel opposite stressed to the Court yesterday that the December 3rd detention, the first detention was not an arrest and apparently relied upon the court’s below ruling which in role and part appears at page 59 of the record which I shall just briefly read.
The court below said this, the officer said that he arrested appellant but the evidence which is in no way controverted shows that appellant was merely escorted to headquarters for interrogation as in fact for numerous others in the course of an investigation by police of an unsolved major crime.
It is clear from the record that there was no intention to arrest within the accepted legal meaning of the word and of course there are two answers to this.
One, it is clear from the record that that statement is wrong that the only testimony in the record about December 3rd arrest is that of officer Griffin and Thompson which they say they arrested the petitioner and there is nothing to controvert that.
And the second answer of course is that this was an investigative arrest and that as we have argued is illegal.
I have two evidentiary points, one, I want to stress that the petitioner had done the yard work for the woman at page 17 interrogation there that the record makes that clear.
And next, I want to stress that even though Mr. Justice Stewart yesterday correctly observed that she testified that there was no doubt in my mind about it that Johnny was the one.
In other places, she was not quite so positive at page 22 just previous to that she says, “I recognized it was Johnny.
I thought it was but I wasn’t perfectly sure right then but then I knew nobody else have been in the house but him.
I asked him to carry a table to the kitchen where he threw the light where the media was.”
And on page 30 of the record, on cross-examination, she says in response to the question, “But by light of the flashlight could you see his face?”
Answer, “Yes sir, true.
He had that fascinator put to the head piece over it and I could see through that crochet part his face and I recognized him or who’s as far that's who it was.
I was pretty sure it was.”
Justice Potter Stewart: You are going back for a moment if you will to the first three points you made in summary.
Mr. Melvyn Zarr: Yes, sir.
Justice Potter Stewart: The last of which was -- the third of which was that fingerprints are not excluded from the -- are not accepted from the exclusionary rule.
There's the Bynum case in the District of Columbia.
Mr. Melvyn Zarr: Yes, sir.
Justice Potter Stewart: Are there any other cases on that point?
Mr. Melvyn Zarr: None that we could find Your Honor that dealt explicitly with fingerprints.
Justice Potter Stewart: That's what I'm talking.
Mr. Melvyn Zarr: Thank you (Voice Overlap).
Justice Potter Stewart: Thank you.
Chief Justice Earl Warren: Very well.
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DAVIS v. MISSISSIPPI. The Oyez Project at IIT Chicago-Kent College of Law. 26 April 2013. <http://www.oyez.org/cases/1960-1969/1968/1968_645>.
DAVIS v. MISSISSIPPI, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1960-1969/1968/1968_645 (last visited April 26, 2013).
"DAVIS v. MISSISSIPPI," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 26, 2013, http://www.oyez.org/cases/1960-1969/1968/1968_645.