CHIMEL v. CALIFORNIA

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Argument of Keith C. Monroe

Chief Justice Earl Warren: Number 770, Ted Steven Chimel, petitioner versus California.

Mr. Monroe.

Mr. Monroe: Mr. Chief Justice, may it please the Court.

The Court considers today a case which, I believe goes to the very core of the Fourth Amendment of the Constitution.

The facts of the case, in February 1965, there was a burglary of the Pulati home in Santa Ana, California.

Number of coins were taken, some metals and tokens, containers and so forth.

Justice Potter Stewart: This wasn't currency.

These were rare coins or --

Mr. Monroe: Rare coins.

Justice Potter Stewart: Collector's items.

Mr. Monroe: Collector's items, Your Honor, yes.

Thereafter, in August of 1965, there was a burglary of a coin shop, the Money Vault.

This took place in Orange, California nearby.

Without going into a great deal of detail, there was suspicion of the petitioner as to the Pulati burglary but I think it was pretty much agreed and appears in the record, that way, that there was no probable cause on which his arrest could have been founded.

Justice Potter Stewart: He was a fellow member of a collector's club with the Pulati's, was he?

Mr. Monroe: That's correct, Your Honor.

Justice Potter Stewart: And he missed a meeting one night and that's the night at the Pulati's house was burglarized?

Mr. Monroe: That's correct, Your Honor.

Also prior to that time, he had talked to them about insurance whether or not the coins were insured.

He knew, of course, as a fellow member of coin clubs that they were coin collectors and that they did have coins in their home.

As to the Money Vault burglary, the petitioner made a statement before the burglary to a neighbor that he had a big deal cooking that night and that he was going to knock over.

I don't know whether he said coin shop exactly.

He was going to knock over a place, anyhow.

Thereafter, to the same neighbor he made a statement the day following the burglary that an attempt had been made to enter, which had been unsuccessful.

And some two weeks later he made another statement to another coin shop operator that he had been involved in the Money Vault matter.

Now, then, this was about the middle of August.

On August 25th, the California Supreme Court found that petitioner was arrested without a warrant, on the street, in Santa Ana, California, by the investigating officer here, Officer Del Coma.

After transportation to the Orange Police Station and some interrogation, petitioner was released.

Then on September 13th, something more than two weeks later, Officer Del Coma went to the appropriate magistrate and submitted a complaint in purely conclusionary form.

The complaint is set out in the petitioner's brief.

On the basis of this complaint which, in substance, merely said, “I believe that this man committed a burglary on such and such a date in this county”; on the basis of this complaint, a warrant of arrest issued at 10:39 a.m. on September 13th.

Officer Del Coma doesn't give us too clear a picture of what he did the rest of that day.

He knew where the petitioner was at that time.

He knew where he worked.

He knew where to go and get him.

But in any case, Officer Del Coma arrived at the petitioner's home something shortly after 4:00 p.m., knowing at that time that he was not home.

He gained admittance to the house, waited for him to come home.

Justice Potter Stewart: Was there somebody else in the house?

Mr. Monroe: His wife was there, Your Honor.

Justice Potter Stewart: Does it show how he gained entry into the house?

Did he show the wife the arrest warrant, or doesn't the record show?

Mr. Monroe: The record simply shows that the officer requested admittance to wait for Mr. Chimel, Your Honor.

Justice William J. Brennan: Well, is that to say that at least his presence, the officer's presence is not an unlawful presence inside the house, based on the consent of the wife?

Mr. Monroe: I don't think this record is clear enough to show one way or the other, Your Honor.

We don't contend that the officer's presence was unlawful at that point.

Mr. Chimel came home at something like 4:30 p.m., whereupon the officer, after he had entered the house, placed him under arrest on the authority of the warrant, showed him the warrant, requested permission to search, which was not granted.

The officer then stated that, having executed a lawful arrest on a felony warrant, he had a right to search, and he was going to, and proceeded to do so.

This search covered every room in the house.

It covered the garage.

It covered an inspection in the attic and it involved the opening of drawers, the opening of boxes, cupboards.

It was described by the officer as a general search.

The officer did not have knowledge, at the time he made this search of any -- of information which led him to believe that any specific property was to be found in that house.

Justice William J. Brennan: What's your position about the arrest?

Was that a lawful arrest on that warrant?

Mr. Monroe: I can't answer this simply yes or no, Your Honor, for the reason that in this case we raised the issue, so far as I know for the first time in California, that the arrest warrant had been unlawfully issued.

Justice William J. Brennan: Under State law?

Mr. Monroe: Under Federal law, Giordenello versus U.S. and Aguilar that --

Justice Abe Fortas: The California Court so held, didn't it?

Mr. Monroe: The California court did so hold, Your Honor.

Justice Abe Fortas: But then -- so we now have a ruling of the State Courts that this warrant is invalid.

Mr. Monroe: That's correct.

Justice Byron R. White: Only -- Didn't they rule that it was invalid under California law?

Mr. Monroe: No, Your Honor.

It was under Giordenello, Aguilar, and Barnes.

Justice Byron R. White: I see.

Mr. Monroe: Cases from this Court.

Justice Byron R. White: The arrest warrant itself, on a probable cause basis.

Mr. Monroe: That's correct, Your Honor.

This brings us then to the alternative holding of the California Court that it was a valid probable cause arrest.

If I may leave that point for a moment, it ties in with a later part of the argument.

Justice William J. Brennan: Well, I suppose it's going to be relevant, isn't it to what we have to decide as to the scope of the search, whether that arrest was or was not lawful, whether on the basis of the warrant or on the basis of probable cause in respect to the law?

Mr. Monroe: Yes, Your Honor.

I am a little bit on the horns of a dilemma in that.

I don't want to concede the arrest was lawful, because I have doubts.

I think that the search was bad for other reasons.

I simply don't want to make the concession.

Justice William J. Brennan: And well, without making a concession, I guess you are going to argue on the assumption that it was lawful, nevertheless in scope, this exceeded the speed limit under the Fourth Amendment.

Mr. Monroe: This is correct, Your Honor.

Justice Byron R. White: But you are going to argue, aren't you, that there should be no arrest without a warrant at all?

Mr. Monroe: No, Your Honor, I don't intend to make that argument.

Justice Byron R. White: You do concede that you may arrest without a warrant, constitutionally?

Mr. Monroe: Oh!

Certainly, I am sure that there are myriad of cases where an arrest without warrant should be valid.

Justice Byron R. White: Oh!

I agree with that.

I just wondered what your contention was.

Justice Abe Fortas: Well, I don't understand your position in view of what you said.

I thought that you were arguing to this Court that the arrest was an unlawful arrest, in these particular circumstances.

And that, second, even if the arrest was lawful, which you say it was not, the search was of an impermissible scope.

Now, is that your position or is it not?

That is what I thought was indicated by your petition for cert, and by your brief here?

Justice Byron R. White: My primary focus, Your Honor, is on the search itself.

I also take a second position that on the facts of this case, a valid warrant should have been used.

However, my primary focus is on the search itself.

Justice Abe Fortas: I understand that, but I am trying to find out, following my brother Brennan's question to you, whether secondarily, or however -- whatever order you want to do it, you challenge the lawfulness of the arrest here.

Mr. Monroe: Yes, that's correct, Your Honor.

Justice Abe Fortas: I thought you did, but if you don't, I'd certainly like to know.

As I read your papers, you certainly challenged the lawfulness of the arrest here on the theory that, as the California Courts held, the warrant was invalid, that without the warrant the arrest here was unlawful and in violation of the Fourth Amendment.

Mr. Monroe: If I can clarify, Your Honor, to back up and change the facts a little bit, if the officer had simply put the petitioner under arrest at his home, and taken him down to the station, had that been all that had gone on, I would not challenge that arrest on probable cause.

Justice Abe Fortas: And you would not challenge that arrest on the grounds that he should have obtained a warrant?

Mr. Monroe: No.

Justice Abe Fortas: Because you say there was.

Is it your position that whenever the police have probable cause to arrest, regardless of the time factor or any other circumstances, they don't have to get a warrant?

Is that your position?

Mr. Monroe: That is not my position, Your Honor, but so far as the arrest which involves no search, I don't think that it is fairly before this Court on this record.

Justice Abe Fortas: I don't understand that at all.

Justice Hugo L. Black: Well, you would have a hard time getting a remedy if that is all you had, as far as this case is concerned.

You might have a civil action or something, but you would have a hard time arguing that an otherwise valid conviction had to fall because the arrest was an improper one.

We have never held anything like that, have we?

Justice Abe Fortas: No, but involved in this, as I understand it, one of the arguments that the State makes is that the search and the seizure were lawful as incident to a valid arrest.

Mr. Monroe: That is correct, Your Honor.

Justice Abe Fortas: Now, do you or do you not argue that the arrest was invalid as one branch of your submission to this Court?

Mr. Monroe: For the sake of argument, Your Honor, I'll concede that this arrest was invalid, for the sake of argument here.

Justice Abe Fortas: No, no.

I'm not asking you to concede anything.

I'm trying to find out what your position is.

I have read your petition and your brief here, and you surprised me by what you said.

But if that's your position, then that's your position.

Mr. Monroe: Pursuing the facts of the case, then, after this search, or going back to this search of September 13.

It was based altogether on a charge of burglary of the Money Vault.

So far as the record shows, the only thing which was missing from the Money Vault was coins, nothing else.

Nevertheless, in this search, a large quantity of coins and medals, tokens, boxes, razor blades, containers, various other non-coin items were seized.

Justice Byron R. White: Were these the -- were these the fruit of another burglary?

Mr. Monroe: This was what later developed, Your Honor.

Justice Byron R. White: Did the police know it at the time?

Mr. Monroe: No.

Justice Byron R. White: Didn't they -- they never even knew of the other robbery or burglary?

Mr. Monroe: The record indicates that Officer Del Coma, who is the central figure here, had heard something of the Pulati burglary, the first burglary, but that --

Justice Byron R. White: He doesn't know what was stolen there?

Mr. Monroe: I think he knew there were coins which had been taken, but he did not have any detailed information so far as the record shows.

Justice Byron R. White: Assume if he had known specifically what was stolen in the Pulati case and he encountered it in the house that he searched, in the course of searching for coins stolen in another burglary, would you say he couldn't seize the fruit of the Pulati?

Mr. Monroe: Oh, no.

If, Your Honor, he were in the course of a legal search, I think under Marron he would have a right to seize contraband or stolen goods which he happened to come across in the course of a legal search, although I don't think this was a legal search at all here.

Justice Byron R. White: So this is -- this is your fundamental question, the legality of the search?

Mr. Monroe: That's correct.

Justice Byron R. White: Without either a valid arrest warrant or without a valid search warrant?

Mr. Monroe: That's correct.

Justice Potter Stewart: Well, the legality of the search, as I understand your case, depends upon two issues.

First of all, the search, I suppose one that would argue, was obviously invalid if the underlying arrest was invalid.

Mr. Monroe: That's correct.

Justice Potter Stewart: Because the only justification for the search is that it was incident to a lawful arrest.

Therefore, if the arrest was not lawful, the search could not be lawful, regardless of it scope.

And your second point is, even if the arrest was a lawful arrest, this search which is justified only as an incident to a lawful arrest was far too wide in scope to be incident to a lawful arrest.

Is that -- is that your submission?

Mr. Monroe: That is correct, Your Honor, plus on additional point.

I suggest that in order to make a search as an incident to an arrest, there should be a showing of the same elements of probable cause thereafter which would have justified issuance of a search warrant in the first place, else, you are proceeding with a search which is not justified by as much showing, you are proceeding without a warrant with less showing than you would be had you proceeded with a warrant, the preferred method of procedure.

Justice Potter Stewart: Well, there can certainly -- let's assume a lawful street arrest of somebody that you have reasonable cause to believe has a concealed weapon and let's assume the arrest, that there is probable cause, sufficient probable cause, and that you do stop and arrest that man, then certainly incident to that arrest you can search him.

You would agree with that?

Mr. Monroe: No quarrel.

Justice Potter Stewart: And if in addition or if instead of a gun, you don't find a gun at all, but what you do find is narcotics on him, right in his pocket.

Although there was never any ground for a search warrant to search his pockets for narcotics, would you agree or not that that's a perfectly valid search and seizure of the narcotics.

Mr. Monroe: Oh!

Certainly Your Honor.

Justice Potter Stewart: Even though there was no ground at all to search him for narcotics.

Mr. Monroe: Searches of the person, I think, stand on an altogether different plane, because the officer arresting a person obviously has a primary need to search that man and see that he is not assaulted with some sort of weapon.

I don't think there's any question there.

There's an obvious necessity.

Justice William J. Brennan: Well, let's see, then, Mr. Monroe.

This gets down to except for searches of the persons -- except for searches of the person.

There has to be both probable cause to arrest and independent of the arrest, probable cause to search.

Mr. Monroe: If I may, Your Honor, I wouldn't say really that it's independent of the probable cause to arrest.

Rather, turning to --

Justice William J. Brennan: Well, in addition to, rather than independent.

Mr. Monroe: There has to be that other element of some reason to think, if I, as the officer, am going to search the place of arrest, then I have to have some reason to think --

Justice William J. Brennan: Well, all of our cases so far, I gather, have sustained searches, so long as there was probable cause to make the arrest and that the search was incident to that arrest, whether or not the officers had knowledge of what it was they might pick up.

That be so?

Mr. Monroe: I think there's a strong suggestion in the cases, Your Honor.

The cases which have sustained searches that this Court in fact has over the years sustained those searches which have proceeded in this context with a valid arrest warrant and a very strong suggestion that the officer did have knowledge that, what I want at least has a likelihood of being there.

It becomes almost impossible to explain the exploratory search cases unless there is something of that nature.

Justice Byron R. White: Well what if -- well, what more do you need -- what more do you suggest we need if you have probable cause, or a warrant to arrest a fellow for stealing some coins, and you go to his house and arrest him in his house?

Now you suggest you need more reason to search his house for the coins than the fact that you think he stole them?

Mr. Monroe: That's correct, Your Honor.

Justice Byron R. White: You have to have some reason to believe that he has not only stolen them but that he has actually got them there?

Mr. Monroe: That is correct, Your Honor.

Justice William J. Brennan: And you suggest our cases support that submission?

Mr. Monroe: Yes, Your Honor.

Justice William J. Brennan: Has that ever -- has that question ever been explicitly addressed in any of our opinions?

Mr. Monroe: No.

The cases in this Court --

Justice William J. Brennan: You get more comfort out of the pre-Harris cases than you do out of the Harris.

Mr. Monroe: The Harris case is not comforting at all, Your Honor.

Justice Hugo L. Black: Or Rabinowitz.

Mr. Monroe: No.

Rabinowitz, I think, is squarely an issue, so far as its language, the warrant is not required.

Justice John M. Harlan: Really, the essence of your position is that you want us to re-examine Rabinowitz and Harris, and that is a perfectly understandable position.

Mr. Monroe: That's correct.

Justice William O. Douglas: That's the guts of your case, isn't it?

Mr. Monroe: That's correct.

Justice William O. Douglas: You think your re-examination would go so far as overruling, wouldn't it?

Mr. Monroe: I don't think it would be necessary.

Let me clarify my position here, too, because, of course, when one suggests a re-examination of Rabinowitz, the mind automatically turns to the revival of Trupiano.

I'm not really suggesting this, because I think Trupiano was a very difficult case on its own facts.

Trupiano, it may be recalled, involved a valid arrest of Antonio, who was then committing a felony, and the still, the paraphernalia for committing the felony was in plain view.

I think possibly Trupiano went too far in not permitting the still to come into evidence.

There was, after all, a valid probable cause arrest, and this still was seen in the course of making that arrest.

Trupiano raised some, I think, very definite problems there.

In terms of results, the cases in this Court which have generally been supported -- it might be noted here, too, that Rabinowitz so often cited as a non-warrant case, was a case, in fact, in which there was a valid arrest warrant and there was every reason to think the very property for which the search was made was in the place which was searched.

Every element which would have been necessary to get a search warrant was known to the officer and was almost unquestionably present.

The other cases which have supported similar searches are United States versus Ventresca, Rugendorf, Jones versus the United States 362 U.S., Abel versus U.S. 362, of course Rabinowitz which was with a warrant, U.S. versus Lefkowitz, and Marron versus U.S.

Justice Byron R. White: I take it, then, that your position certainly would be that if the officer went to the magistrate and said, “I have probable cause to believe that so-and-so stole some coins,” and if the magistrate agreed with him that he had probable cause he nevertheless couldn't automatically also get a search warrant?

Mr. Monroe: I don't --

Justice Byron R. White: You couldn't say to the magistrate, “Well, you agree with me that I have probable cause to believe that John Jones stole these coins, and you are giving me the arrest warrant for his arrest; therefore, give me a search warrant for his house.”

You would say he would have to have more than that to get a search warrant?

Mr. Monroe: Certainly, Your Honor, because he would have to particularly describe for the magistrate the place to be searched and the persons or things to be seized.

Justice Byron R. White: Well, it describes the house.

Mr. Monroe: But the person or things to be seized.

Justice William J. Brennan: He also says the coins may be there.

Justice Byron R. White: He says the coins that were stolen here, the description of the coins.

Mr. Monroe: But I think under the Camara, he would have to give some reason for thinking that they were there.

Justice Byron R. White: Well, because the man stole them, and that's where he lives.

Mr. Monroe: If this were before a magistrate, and the magistrate passed on it and felt that there was a sufficient showing, taking all of the facts in such and such --

Justice Byron R. White: Well, but would you agree there was a sufficient showing?

If there was -- if you agreed there was probable cause to arrest and you agreed that the arrest warrant, validly issued, would you agree there was then probable cause to issue the search warrant to search his house where he lived?

Mr. Monroe: The cause shown is merely enough to arrest, if that is the cause shown, I do not think that is enough to search his house.

Justice Byron R. White: What more must he show?

Mr. Monroe: Some reason for thinking that --

Justice Byron R. White: That he stashed the coins there instead of someplace else.

Mr. Monroe: That's correct, Your Honor.

Justice Thurgood Marshall: Well, suppose the officer says, “I would assume that he has them in his home.”

Mr. Monroe: If the officer assumed that they were in his possession?

Justice Thurgood Marshall: If he told the magistrate that, “One thing I am sure, he did rob this place.

I am certain of that, and I assume that the coins will be in his home.

Mr. Monroe: On the -- let me turn to the facts in this case --

Justice Thurgood Marshall: Isn't it your position that he has to so more than assume that they are there?

Mr. Monroe: Oh!

Certainly.

Justice Thurgood Marshall: Isn't that what your position is?

Mr. Monroe: There has to be something other than an unfounded assumption, certainly.

Justice Thurgood Marshall: That the coins are there; like somebody saw him put them there?

Mr. Monroe: Or he had conducted himself in such a manner as to support belief that they are there.

Justice Thurgood Marshall: How far, going back to the second point, when he's arrested, how far do you go beyond search of a person?

The room?

Mr. Monroe: I think there can be no question, Your Honor, about the validity -- let me separate, first of all, searches and seizures.

Many of the cases treat them as one and the same.

I think there can be no question about seizure of evidence, instrumentalities, contraband, in plain view.

Searches of the person, of course, are conceded.

As far as searches beyond that, it is very, very hard, I think, to find a logical stopping point, because we start with Rabinowitz, which permitted a very narrowly circumscribed search of one room.

Now, we are searching entire houses.

Justice Thurgood Marshall: You'd say -- you would draw one line on the attic, wouldn't you?

Mr. Monroe: Sir?

Justice Thurgood Marshall: You'd draw one line in the attic?

If you would draw the other line at his person, and then you wouldn't try to draw a line anyplace else?

You would say certainly he couldn't search the attic.

Mr. Monroe: Oh!

I think, Your Honor, that the only logical line that can be drawn is the person, and those things which are in plain view of the person at the place of arrest.

When it involves going into containers, so to speak, then I think the legitimate scope of the search has been exceeded.

Justice Thurgood Marshall: Well what happens if he arrests him, takes him down, and announces to everybody in the house that he is arresting him for stealing these coins, and then gets a search warrant.

Do you think the search warrant would be worth anything?

Mr. Monroe: It seems to me, Your Honor, in looking at the facts of this case, there were three officers.

It would have been a very simple thing, if they wanted to do so, to leave one officer there and obtain a search warrant.

Justice Byron R. White: But you say he couldn't get one anyway, if he went after it, because he had absolutely no probable cause to think the coins were in the house.

Mr. Monroe: That's true, Your Honor, on the facts of this case.

Justice Byron R. White: So the officers ought to leave.

Their just aren't going to get to search ever.

Mr. Monroe: The officer describes this as a general search.

He wasn't searching for anything specific, so it seems to me clear on his testimony that he was exploring this house.

Justice Byron R. White: Just for the fun of it.

He wasn't looking for coins as the product of the crime for which he was arresting him?

Mr. Monroe: I questioned him on that and he didn't so testify.

Chief Justice Earl Warren: Isn't this case somewhat confusing because there were two burglaries involving coins, and the police officer went there with probable cause to arrest for one of them.

Mr. Monroe: That's correct.

Chief Justice Earl Warren: He had no knowledge of the other one, and he made a general search of the whole house, and found nothing in connection with the burglary on which they had probably cause, but found some things on the other burglary for which they had no probable cause when they went there, and had no information.

Mr. Monroe: That is true, Your Honor.

This is a hard point here, and I think it bears emphasis that the case on which they had probable cause was coins and coins alone, so far as the record shows, and the seizure was of medals, tokens, boxes, wallets, razor blades, things which weren't even in the same class.

Chief Justice Earl Warren: This is something like the facts in Mapp, where they went looking, I think, for gambling apparatus, or something of that kind, and they made a general search and ended up finding some obscene literature in a trunk in the place.

That would be somewhat comparable to this, wouldn't it?

Mr. Monroe: It is, Your Honor, yes.

I see that my time has expired.

Chief Justice Earl Warren: Yes but Mr. Monroe, we have taken all your time by answering questions, and I think we would like to hear something about Rabinowitz and Harris, because that is the thrust of your case, and I suggest that you may have five minutes for rebuttal, if you want, after hearing from the other side, if you would want.

Mr. Monroe: Thank you.

Chief Justice Earl Warren: And, of course, you may have five minutes extra if you wish it, too.

Mr. George.

Argument of Ronald M. George

Mr. George: The issues in this case basically are was the search, which was an incident of the concededly valid arrest on probable cause, rendered unreasonable solely by virtue of the fact that it extended beyond the room in which petitioner was arrested?

Secondly, was it rendered unreasonable by virtue of the fact that there was a delay of some six hours in executing the warrant of arrest?

And thirdly, was it rendered unreasonable solely by virtue of the fact that it was conducted as an incident to an arrest on probable cause, instead of by way of a search warrant?

Justice Abe Fortas: In what basis did the California Court hold that the warrant was invalid?

Mr. George: The California Supreme Court, in this case and in the companion case of People versus Sesslin, held that the procedure which had been followed in the State of California for many, many years, of issuing warrants upon complaints which did not set out the factual elements of probable cause, were invalid, but the Court held that, although this arrest warrant was invalid, there was ample probable cause --

Justice Abe Fortas: I understand that.

Well do you -- what about the second point that you listed there?

Why do we have to consider that, the delay of six hours in executing a warrant?

Mr. George: Well --

Justice Abe Fortas: Is that involved in this case?

Mr. George: That has been raised by the petitioner.

We consider it a purely frivolous point that's hardly an unreasonable delay.

But petitioner contends that the execution of the arrest was deliberately delayed so as to permit the officers to search the house.

Justice Abe Fortas: You mean, assuming that the warrant was otherwise valid, petitioner argues that its effect was spent, or it was invalid or ineffective because of the delay.

Mr. George: Yes.

Justice Abe Fortas: Is that the point?

Mr. George: Yes, but the State Supreme Court specifically upheld the arrest on the theory of probable cause apart from the warrant.

And I would submit that one could not find a case on which there was more probable cause to arrest.

Justice John M. Harlan: Did they search the house before Mr. Chimel came back?

Mr. George: No, they did not.

Justice John M. Harlan: They waited for him.

They went to the house, found he wasn't there, wanted to arrest him, and they waited for him.

Mr. George: They waited approximately 10 minutes.

Justice John M. Harlan: And they arrested him, and then the search followed that, is that it?

Mr. George: That is correct.

Justice Abe Fortas: I take it that your point is that the arrest here was valid because there was probable cause, and that the -- and that no warrant was necessary.

Mr. George: That is correct.

The officer --

Justice Abe Fortas: Is there any case that you can think of in which a warrant is necessary and can be lawfully obtained consistent with the Fourth Amendment?

Mr. George: Is your --

Justice Abe Fortas: In other words, doesn't this position really read out of existence -- read out of existence -- the need for a warrant?

Mr. George: No, it does not.

First of all, may I ask Your Honor for a clarification?

Are you speaking of warrants of arrest when you speak of search warrants?

Justice Abe Fortas: I'm talking -- let's take the arrest warrant.

First, is there any case where an arrest warrant could be obtained under the Fourth Amendment and would be necessary on the theory in which this case is being argued by you, and I expect by your adversary?

Mr. George: Our position is no and even --

Justice Abe Fortas: In other words, police never need a warrant.

If they have probable cause, they can get a warrant, of course, for purposes of the Fourth Amendment but they don't need it, because if they have probable cause, they can go ahead and arrest.

Mr. George: That's correct.

Justice Abe Fortas: And so all this business of going to a magistrate to get a warrant in the terms of the warrant is wasted time.

Mr. George: I don't think it's wasted time and the officer here certainly didn't think it was wasted time.

He testified expressly that it was his habit that whenever possible --

Justice Abe Fortas: I know.

Well, maybe it's a nice thing for officers to do, but no legal requirement.

Mr. George: That's correct.

Even Trupiano said that.

Justice Abe Fortas: Yes.

Now, second, turning to the search warrant, your position is exactly the same, isn't it, that is to say that, wherever there is probable cause to search, there is no need to obtain the warrant?

Mr. George: No that's not --

Justice Abe Fortas: On the other hand, if there's not probable cause, the warrant cannot be obtained.

Justice John M. Harlan: You don't say that, do you?

Mr. George: That is not our position, because clearly a search may not be made upon probable cause.

A search may be made only as an incident to an arrest upon probable cause, and we would submit that whenever there is a proper arrest, and that the search is number one, reasonable; and number two, incident to the arrest, that then there is no need to obtain a search warrant.

Justice Abe Fortas: Can you suggest a situation to me in which there is probable cause for arrest and not probable cause to search?

Mr. George: Yes.

One situation which comes readily to mind is the arrest of a person -- let's say Mr. Chimel was arrested at a friend's house.

Now, there would be the right to search incident to arrest, but perhaps not the same type of search as you have here, because it would not be predictable that the stolen coins would be at this friend's house, or at a public place.

Justice Abe Fortas: Well, what you're really saying is that there may be a difference in the permissible scope of the search, but that whenever there is probable cause to arrest, there is probable cause to conduct some sort of search.

Mr. George: Yes.

Justice Abe Fortas: Is that what you are saying?

Mr. George: That is our position.

Chief Justice Earl Warren: How far could they go on the searching in the hypothetical that you just gave us?

Mr. George: That might depend upon who this friend was, whether he had some connection with the burglary or not.

Now, under current law, there does not seem to be any definite limitation.

This Court has always said that we must view the legality of the particular search in light of its reasonableness under the facts of the case, and there can't be any mechanical standards here.

I think what significant is that the Fourth Amendment, as it was drawn up by the framers, does not confer a narrow grant of the power to search.

What it does is it restricts the power to search, the existing and recognized power to search, and prohibits only searches that are unreasonable.

And in turn, that determination of reasonableness is a very practical concept and it has been since it evolved under common law.

Justice Thurgood Marshall: Mr. Chimel -- may I break in just one moment on the other point?

Assuming that they know, they are confident that this man committed this robbery, and they see him in this side of town, going toward his home.

Is it possible that some detective would say, “Well, if we arrest him here, we can only search his person; but if we let him go home, and then arrest him, we can search the attic, the garage, and anything else”, is that possible?

Mr. George: It is possible that officers would do that and definite --

Justice Thurgood Marshall: Well, what is different about that case and this case?

Mr. George: I think it's improper when the officers do that.

We concede that, and there are cases so holding, that it's improper.

Justice Thurgood Marshall: Well, didn't they deliberately wait at home for him?

They knew where he was.

Mr. George: No, they didn't.

If I may answer your question by chronicling the events of that day, I would like to point out that the arrest warrant issued at 10:39 in the morning.

The officer submitted the arrest warrant which he had obtained and which, under current California law was a valid arrest warrant.

Two, the warrant detail of his department, this was customary practice of his department, and this was done as a general rule, without exception, unless there was a definite information that the suspect was about to flee.

The Warrant detail processed the warrant until 2 o'clock that afternoon.

Now, both prior to 2:00 p.m. and after 2:00 p.m., the officer was involved in other burglary investigations.

He had a monthly caseload of 45 to 80 burglaries.

He was involved with those burglaries.

He was not required; it's our position, to drop all other business of an enforcement and investigatory nature in order to serve that arrest warrant.

All right.

Then he -- it was getting on in the afternoon.

He was busy with these other things.

He might well have missed the petitioner, who arrived home at 4:15.

He also testified that he had a desire not to embarrass the petitioner at his place of employment.

Now, had the petitioner been released on bail, as he was perhaps the same afternoon, but very shortly after -- the record isn't completely clear.

And had the case not gone to trial, the petitioner's employer would never have learned of the arrest.

The petitioner would not be fired.

There would not be any consequence.

His wife would learn of it in any event.

Justice Thurgood Marshall: So once again we find the police are only interested in doing favors for the defendant.

Mr. George: I would not state that as a general proposition and I would not be so naive to hold that that's the universal rule.

However, I would submit that it is unparalleled, almost.

It's impossible to find a police officer who could have given more attention to the observance of the defendant's constitutional rights than did this officer.

He did not arrest --

Justice Thurgood Marshall: There were three officers.

Mr. George: There were two officers from Santa Ana who accompanied him, and that was required --

Justice Thurgood Marshall: Their was three.

Mr. George: Under California law because the place of arrest, petitioner's home, was outside the investigating officer's jurisdiction.

And under California law, then, it has since been changed, Officer Del Coma would not have had the right to go outside the City of Orange to arrest petitioner at petitioner's Santa Ana home.

Justice Thurgood Marshall: But regardless, there were three.

Mr. George: There were three and there was --

Justice Thurgood Marshall: Went to the man's home.

Mr. George: They went to the man's home.

Justice Thurgood Marshall: And waited for him.

Mr. George: And waited 10 minutes for him?

Justice Thurgood Marshall: And after he came home, they shook his house apart?

Mr. George: They did not shake his house apart.

They searched the house very carefully with petitioner's wife.

They asked her to accompany them.

They had her open drawers.

They did not ransack.

Justice Thurgood Marshall: They were looking for the coins from this robbery.

Mr. George: That is correct.

Justice Thurgood Marshall: Which they didn't find.

Mr. George: No, that is not the case.

The only -- and I wish to correct prior statement on that that was made in the preceding argument.

The record shows that no coins were positively identified as coming from that burglary, but that is not to say that there were no coins seized.

The inference is very strong that many of the coins were from the Money Vault burglary.

We have set out the -- an inventory of the coins seized in our brief as an appendix, and if you compare those items to some of the items seized from Mr. Slocum's store during the burglary, there is a great similarity.

But we know that coins are by their very nature almost fungible items, with a few exceptions, and it is very difficult to say, “That is my nickel.”

Justice Thurgood Marshall: Mr. George, put it this way, they knew exactly what they were looking for, coins.

Mr. George: Yes.

Justice Thurgood Marshall: And they seized items other than coins, which they did not know at that time were stolen.

Mr. George: No, that is not the case.

Mr. Monroe has implied --

Justice Thurgood Marshall: did they know about this other robbery before that?

Mr. George: There's some indication that the arresting officer had some knowledge that there was another burglary, but he had no detailed information, as Mr. Monroe pointed out.

There was not a wholesale --

Justice Thurgood Marshall: Wouldn't he have needed that to make the search?

Mr. George: No, he would not have needed that other information.

He was looking for one thing only, and that was evidence, stolen fruits of the burglary for which he was arresting the petitioner.

And that was --

Justice Byron R. White: You suggest that everything he seized at that time was the kind of thing that might have been stolen from the Money Vault?

Mr. George: Exactly and I would like to clarify the record on that.

There was some confusion.

The item seized consisted of coins, coin paraphernalia, and one item that does not fall into that category -- a quantity of razor blades, and why razor blades?

The officer was asked that.

Well, because petitioner had said at the time of the arrest, “These razor blades are part of the coin transaction.”

Now, that is susceptible of the inference that they could have been part of the Money Vault burglary transaction, but there is nothing that was not reasonably apparent as to be part of the Money Vault burglary that was seized.

It was a very limited search that was confined by the objective of the officer, which was a permissible objective, namely, to return the stolen property.

This was three-fourths of the man's inventory that had been wiped out, and the officers merely wanted to return that property to their rightful owner, and their search was 45 minutes and was confined to that.

Now, petitioner has implied that this was a wholesale ransacking of the house.

This isn't true.

The record indicates unequivocally and we've set it out in detail in our brief that there were only two rooms that were really searched in the sense of what a search is, prying into hidden places.

They were a bedroom, and a second bedroom --

Justice William J. Brennan: How large was the house?

Mr. George: This was a 3-bedroom tract home, tract-size home.

That's how it was described in the record, whatever that means, a suburban house.

And these two rooms were searched in the sense of drawers being opened and petitioner's wife being asked to move the contents of the drawers to one side, to offer an innocuous explanation for any coins, and the officers left many coins.

They only took those which appeared to be connected with the Money Vault.

And now, these other rooms, the officer testified, he glanced into them.

This was a cursory search.

He looked into the garage.

He looked into the child's room.

But this was not a search.

The search was confined to two rooms and its objective was perfectly permissible, and the search was of 45 minutes duration.

Chief Justice Earl Warren: Mr. George, may I ask you this.

Is your desire to broaden out the right of search, does that indicate a desire on the part of law enforcement in California to wipe out the necessity of warrants, search warrants, warrants of every kind, in order to go in and search whenever they want to do so?

Mr. George: No.

Chief Justice Earl Warren: I'll tell you the reason I ask that.

It's because in one case we had here a while back, it was stated to us that in the great City of Los Angeles, there were -- the Police Department got out, I think it was, fewer than 20 search warrants in an entire year.

Mr. George: That's incorrect information.

Chief Justice Earl Warren: How widespread is the practice of getting search warrants in Los Angeles?

Mr. George: Well, I will indicate that.

I want to preface that by stating that the California Supreme Court, in its Keener decision has, which we have cited, has evidence a policy encouraging the use of warrants.

We cite an article in the official publication of the California Peace Officers Bulletin encouraging officers to use search warrants, an article by the District Attorney.

Chief Justice Earl Warren: Well, how prevalent are they, let's say, in the City of Los Angeles?

Chief Justice Earl Warren: The figures that we have for the Central District of Los Angeles, and some of the neighboring judicial districts -- this is not the whole county -- is 225 search warrants issued last year.

Chief Justice Earl Warren: But that includes territory outside of Los Angeles?

Mr. George: Out of the city, but certain parts; yes.

It's not countywide.

Chief Justice Earl Warren: Because the Los Angeles Police have nothing to do with those?

Mr. George: That's correct.

Chief Justice Earl Warren: Yes.

How many in the City of Los Angeles?

Mr. George: The City of Los Angeles, I would say approximately 200, I would think.

Most of those in the Los Angeles Judicial District are in the City of Los Angeles.

Chief Justice Earl Warren: Most of them, you say.

Mr. George: Yes.

Now, this is a thirteen-fold increase since 1954, which is the year that the California Supreme Court anticipated this Court's decision in Mapp and required the exclusionary rule to be followed in California.

And as Mr. Justice Harlan pointed out in his dissent to the Chapman case, California has been in the forefront of all the states in laying down rules protecting the rights of criminal suspects both in its -- in the field of confessions and search and seizure.

The state has encouraged the use of warrants and they are being used increasingly.

Each year the number increases.

So -- and this officer here testified, he will obtain an arrest warrant, as he tried to do here.

The law was changed after he obtained it.

It was his policy to get one.

Justice Hugo L. Black: What did they get in the house?

Mr. George: They got coins, coin paraphernalia, and this one item of a few razor blades.

Justice Hugo L. Black: Was that identified by anybody?

Mr. George: Yes.

Justice Hugo L. Black: As belonging to the place that had been burglarized?

Mr. George: There were two burglaries, of course.

And it was -- some of the coins were definitely identified as coming from a second burglary because they were unusual coins.

They were odd metals.

We've set them forth.

Things like Alaska centennial coin or something like this, that the Pulati's recognized immediately, or else a container of coins with Mr. Pulati's handwriting crossed out.

So, of course, those were able to be identified but they were 35 coins out of this quantity, a large quantity, of coins.

The other coins, there was every strong inference that they were one and the same from the burglary for which the officers had made the arrest.

Justice Hugo L. Black: Did the defendant testify?

Mr. George: The defendant did testify.

He gave an explanation that was so inherently improbable of his guilt that we would submit that it afforded consciousness of guilt evidence of his guilt.

It was a highly unlikely explanation.

Justice Hugo L. Black: What did you say?

He testified?

Mr. George: He testified in his own behalf and gave such a contrived explanation of how he had come in possession of some of these coins --

Justice Hugo L. Black: Did he admit he had come into possession of them?

Mr. George: Yes, he did.

And he said that he had purchased them from a man, and he didn't know whom, and he didn't collect medals but he had bought these medals anyway, and it was a very obvious attempt to fabricate an explanation for them.

And in fact, he changed his testimony with reference to one coin, that he didn't know how he had obtained that, but later on he suddenly remembered that he had bought it.

He gave no satisfactory explanation.

Justice Hugo L. Black: Then the testimony that he was in possession of them is without dispute?

Mr. George: That is true, yes.

In fact, there was a stipulation between Mr. Monroe and the District Attorney who tried the case that the coins identified by the Pulati's, found on the premises, were the same coins that were at the Pulati's home on the night of their burglary.

That is in the record.

Chief Justice Earl Warren: Mr. George, was he tried for both burglaries?

Mr. George: He was, and was convicted of both.

Chief Justice Earl Warren: He was convicted of both.

Mr. George: Yes, he was.

Chief Justice Earl Warren: Although there was no identification of the coins from the second or the burglary on which they had had probable cause?

Mr. George: Well, no.

There was no -- there were no coins found at petitioner's house that were tied into that burglary positively, but there was another coin, a very unusual coin with four faulty markings that two months, I believe, after the search, petitioner sold to a coin dealer, and this was a coin from the Money Vault burglary.

And there's a great length of testimony in that regard and that was established clearly.

It was a very unusual coin.

Justice Byron R. White: This was a single trial for both burglaries?

Mr. George: Yes, it was.

Both accounts were joined.

I would like to address myself to the reasonableness of the search in light of all of the officer's conduct here.

The officer had the admissions of the defendant to various civilian witnesses that he had committed the burglary in question.

The defendant was negotiating to return the coins.

The officer attempted to obtain an arrest warrant, conducted a great many sessions with the District Attorney's office, before he would deprive petitioner of his freedom.

The District Attorney's office said, “Well, we think you have enough information, but go out and get another one, talk to this witness.”

He did that.

Only then that did he decide to make the arrest.

The search was incident to the arrest.

Clearly, it was the same time and place.

The objective was as legitimate as any imaginable, to return thousands of dollars of stolen coins to their true owner.

Only coins and coin paraphernalia that appeared to be connected with that particular burglary were seized.

The manner of conducting the search was inherently reasonable.

He had to bring along Santa Ana officers to legitimatize the search, since it was outside of his jurisdiction.

He announced his entry, identified himself, asked whether he could enter, treated the defendant with utmost courtesy.

He informed the defendant of the warrant, showed it to him, let him read it.

He asked whether he could search, although consent was not given.

But he informed the defendant that he had the right search anyway.

The defendant's wife was the one who opened the drawer so there would not be any ransacking.

The officer proceeded as quickly as he could.

He took only 45 minutes to search.

And then the officer took the defendant to the station and the two of them compiled an inventory of all of the seized property, defendant was shown the inventory and he signed a copy.

Now, what can be unreasonable in this search?

Certainly, not the scope.

The scope was certainly proper.

The objective of returning the coins to their stolen -- owner -- to the owner rather -- the returning the stolen coins to the owner would not be served by arbitrarily saying, “Well, you can search this room, but not that one, this cupboard, not that one.”

If we started setting down standards like that, the police and the Courts would certainly be confused.

What size of a room could you search?

What circumference around the defendant?

We submit that the Rabinowitz standard of reasonableness under all the circumstances is the proper standard especially in light of the fact that we have a state conviction here, under our federal system, and under the Court's decision in Ker, the States may develop workable rules of search and seizure.

Justice Byron R. White: But why --

Mr. George: That's what California has done.

Justice Byron R. White: What's your submission as to why an officer, when he arrests someone in his house, should be able to search any more broadly than the person of the defendant, to search for weapons or something like that, to guarantee the officer's own safety, or to just seize what is in plain sight?

What's your basis for saying that he should be able to search for the fruits of a crime?

Mr. George: Well, our legal basis is, first of all, the Agnello decision.

The full citation is in our brief at page 392.

It indicates the evidence of -- that fruit of the crime may be searched.

The Rabinowitz decision --

Justice Byron R. White: Anywhere in the house?

Mr. George: It doesn't speak in terms of arbitrary geographical limitations.

Justice Byron R. White: Well, I know, but what's your submission then?

You should be able to search for the fruits of the crime anywhere in the locality where you arrest the defendant?

Mr. George: Depending on the facts of this case.

Let's say we have a television set involved here.

Justice Byron R. White: Well, why should you be able to search for the fruits of the crime, though, without a warrant?

Mr. George: Because the objective of returning them to their owner is certainly legitimate --

Justice Byron R. White: Well, why couldn't you get a warrant and do that?

Mr. George: All right.

In this case, we submit --

Justice Byron R. White: If you know what the fruits of the crime are, why don't you come armed with a warrant for a search?

Mr. George: It's easy to speak in terms of one case and say “Well, the officer could have taken the two or three hours to obtain a search warrant,” and that's what a commentator states it takes under ideal conditions to obtain one.

But if you multiply this across the country, the last year for which there were statistics, there were 1,600,000 burglaries committed in the United States alone.

Now, if you multiply that paper work --

Justice Abe Fortas: I know, but if he had gotten a search warrant here, the search warrant would have specified only the fruits of the first robbery, isn't that right?

Mr. George: That's what --

Justice Abe Fortas: Because that's all this policeman had any cause to suspect was connected with Chimel, isn't that right?

Mr. George: That's true, but all he was trying to --

Justice Abe Fortas: Now by not getting a search warrant -- just a moment -- by not getting a search warrant, on your submission the police officer was able to make a broader search than he would have been able to make if he had gotten a search warrant.

Am I right or wrong about that?

Mr. George: I would say we do not agree with that, and I'll tell you why.

The officer thought that he was only seizing coins from that burglary.

He had -- there were many boxes and containers of coins.

He would have delayed the defendant hours had it taken each box, sorted out a few medals that apparently that would not have been involved with one burglary, and gone through.

The defendant would have been standing there all day.

It was, in fact if he saw a box that appeared to contain coins from the Money Vault burglary, it's our position he was entitled to take that container, that box.

The inventory of the items seized indicates that there were many, many -- there were perhaps hundreds or thousands of coins seized.

There were many, many containers.

The officer could not pick through each one individually.

That would have been an impossible task.

Justice Byron R. White: But if he was searching for, or if he had had a warrant for certain coins, he might have been able to search anywhere in the house for those coins?

Mr. George: That's true.

Justice Byron R. White: And if he encountered some other coins that he recognized as having been stolen from somewhere else, he could have seized them anyway, couldn't he?

Mr. George: He could.

Justice Byron R. White: Some other cases?

Mr. George: Yes and even if not --

Justice Byron R. White: You still haven't really gotten around to saying why you think that an officer should be able to search a house without a warrant for the fruits of a crime and you said that it would be a lot of trouble.

So far you said that much.

Mr. George: Yes.

Now, we recognize --

Justice Byron R. White: Is that it?

Mr. George: No, that is not all.

I don't think you can say it would just be trouble.

You have to, under the Fourth Amendment, we submit, look at it in terms of what is reasonable and as part of reasonableness, this Court has always looked at the practical effect on law enforcement.

Now, --

Justice Thurgood Marshall: Mr. George, did you have probable cause to get a search warrant?

Mr. George: Yes.

Justice Thurgood Marshall: Very simple question, when the officer went to get the arrest warrant, why didn't he also ask for a search warrant because you have already admitted that one of his purposes was to retrieve this money?

Mr. George: Yes.

Justice Thurgood Marshall: Well, why didn't he write that other piece of paper?

Mr. George: Exactly.

It's so simple that one wonders why not with an officer who is as eager to protect the defendant's constitutional rights.

And that answer is, under this Court's decisions, specifically Marron and Stanford versus Texas, there is a very stringent requirement of particular description.

It would not have been enough for the officer to say, to describe the property to be seized as coins and coin paraphernalia stolen from the Money Vault.

Justice Thurgood Marshall: I thought you said you had enough to get one.

Mr. George: Yes, but what would the officer have had to do to get one?

He would have had to describe these coins in great detail.

Justice Abe Fortas: But what you're saying then is the officer has more latitude and lawfully has more latitude if he does not get a warrant than if he does get a warrant.

Mr. George: No, we're not, because the officer could have obtained a search warrant.

It might have taken him two weeks to do it because he would have had to distinguish the stolen coins from the coins that would be found on the premises.

He knew that petitioner was a coin collector.

Justice Byron R. White: But realistically, though, do you think officers under our cases would get a search warrant when our cases aren't here to hold that if you make a valid arrest on probable cause, you may search incident to an arrest?

Officers don't ordinarily come armed with -- let's assume for the moment that it would have been very easy, very easy, to get the search warrant, automatic, five minutes.

Mr. George: Yes.

Justice Byron R. White: Officers often don't ordinarily come armed with both search and arrest warrant, do they?

Mr. George: They do sometimes, and the reason --

Justice Byron R. White: I said ordinarily.

Mr. George: It varies according to jurisdiction.

I wouldn't say ordinarily across the country, no.

But I think that there are incentives to obtain a search warrant that will make officers get them at time, and I would like to mention some of those to the Court.

There is a presumption of legality that attends a search effected by a search warrant.

In many jurisdictions and in California, if the officer does not have a search warrant, the search is presumed to be illegal in California and the burden is on the prosecution to obtain a search warrant, a justification for the search.

It must show that there was probable cause and that the search was incident to an arrest.

Secondly, the fact that there was a search warrant will insulate the officer from civil and criminal liability that will not be the case if there is not a search warrant.

Finally, or rather additionally, there is also an opportunity for a broader search if there is a search warrant.

The officer will be able to search outbuildings and throughout the premises and take as long as he wants if he has a search warrant.

There will also be the possibility of search in the absence of the suspect.

If he doesn't arrest the suspect at the house, of course, he couldn't search incident to an arrest.

So this way, with a search warrant, he can search the house in the absence of the defendant.

If there are multiple suspects, as there often are in narcotics raids or other conspiracy crimes, let's say, he can search many places.

The police force can simultaneously, even if one or more defendants are absent.

Justice Byron R. White: Well, without the arrest, this search could not have been made.

Do you agree with that?

Mr. George: That is correct.

Justice Byron R. White: Without a warrant?

Mr. George: That is without the arrest.

Justice Byron R. White: What difference, then, would the state suggest it makes in terms of the permissibility of this search?

What difference does it make that the arrest took place?

I know you can say, “Well, the cases hold that,” but those cases are under attack here.

Mr. George: Yes.

Justice Byron R. White: I just wonder why you think the arrest, just the fact of arresting a man in his house, gives the officers the right to make a search of the bedroom that otherwise they would not have had in the absence of arrest?

Mr. George: Because the officer had sufficient information to make the most basic invasion of the defendant's privacy that one can imagine.

The seizure of his body.

Now, how much more of an invasion of privacy is it for the officer to also seize items around the defendant?

Justice Byron R. White: Well, I know, but if you had arrested him down at his office and made that basic invasion of privacy, it will be very difficult to go and search the house without a warrant.

Mr. George: True, but you could have searched his office.

Justice Byron R. White: Well, I know, but you couldn't go and search his house.

Mr. George: Yes, but there's nothing to indicate that it was maneuvered.

Justice Byron R. White: What difference does it make whether you arrest him in his house or in his office as to whether or not you can search his house without a warrant?

Mr. George: Well, there are various justifications.

He might have weapons there.

He might try to destroy evidence.

Justice Byron R. White: But they can say that they have a right to search for the fruits of a crime.

Mr. George: Yes.

Justice Byron R. White: Anywhere in the house that fruits of that sort might be.

Mr. George: Of that sort.

Justice Byron R. White: That is your submission.

Mr. George: Yes.

It's different from a -- for a television theft or for stolen checks.

Justice Byron R. White: Drawer for a television set.

Mr. George: Correct.

Justice Byron R. White: But you think they could have looked anywhere in the house that coins might have been hidden.

Mr. George: Yes, where coins could have been hidden and, of course, it's not open to --

Justice Byron R. White: I'm surprised that you don't suggest that once you arrest a man in his house, confederates, family, and everyone else is alerted -- are alerted and that it might be essential, if the officers have probable cause to make the arrest, and probable cause to believe that he has the fruits, or that they are somewhere, that there is some kind of urgency about looking for them, for the fruits, before they are made off with.

Mr. George: Well, of course, that would support the officer's not having to leave and come back with a warrant later.

Justice Byron R. White: But it doesn't get to why they didn't a warrant in the first place, does it?

Mr. George: Well, what it does is, the practical burden that would've been imposed on this officer to describe thousands of coins with sufficient particularity, as would be required under this Court's decision, to distinguish them from the defendant's coins --

Justice William J. Brennan: Well what decision do you say we said that?

Mr. George: Marron.

Justice William J. Brennan: Did we go that far?

Mr. George: Marron describes the --

Justice William J. Brennan: Your submission is to get a warrant, it would have been necessary to specify every coin, hundreds of coins?

Mr. George: At least to the degree necessary to distinguish them from the defendant's own coins, which the officers knew would be on the premises and because there is authority, and we have cited it in our brief, that the description must be adequate to segregate lawful property, the defendant's own property, from the items to be seized.

And that is why the officer did not get a search warrant.

Very frankly, off the record, I asked the officer, “Why didn't you,” as Justice Marshall asked, “If you were down there and you executed this affidavit for the arrest warrant, why didn't you also get a search warrant?”

And that's it.

He didn't want to get a search warrant that would get knocked out if it just described the coins in a general way.

Justice Thurgood Marshall: Well, Mr. George, my problem is, I assume that the officer knew he was looking for.

Mr. George: He did.

Justice Thurgood Marshall: And when he did the search, he was looking for these coins.

Mr. George: Yes.

Justice Thurgood Marshall: And the only problem that you have and the officer has, is to writing down what he already has in his mind.

Mr. George: He had -- he would have had to write down the description that the victim told him, “Well, this is my coin because it's this age, and maybe it's marked up this way, and therefore I know this nickel from somebody else's nickel.”

Justice Thurgood Marshall: Well, he had that information.

It was just a question of putting it on paper.

Mr. George: That would have been quite a difficult problem and the officer chose to have the coins --

Justice Thurgood Marshall: You mean difficult physically to dictate it or write it?

Mr. George: Well, both, and also to reduce certain conceptual matters to writing.

Justice Thurgood Marshall: Could it also be the possibility that once he puts it down on paper, he would be restricted to that and he wouldn't be able to pick up something else?

Mr. George: Yes.

Justice Thurgood Marshall: Would that be a problem?

Mr. George: That didn't trouble him, because he left coins on the premises.

He left many, many coins.

Justice Thurgood Marshall: So there would be reason why he shouldn't have gotten a search warrant, is there?

Mr. George: Oh, there definitely is.

It would have been an impossible task for him to do it, almost.

Justice Thurgood Marshall: Impossible for him to write it?

Mr. George: Considering the number of coins.

They are listed in our appendix here.

There are hundreds, if not thousands, of coins until I get --

Justice Thurgood Marshall: And he couldn't write it?

Mr. George: This would've been an unreasonable burden --

Justice Thurgood Marshall: Oh, it is an unreasonable burden for a police officer to write.

Mr. George: In certain situations to give this kind of a description --

Justice Thurgood Marshall: I understand your position.

Mr. George: Would be like describing the grains of sand on a beach.

Chief Justice Earl Warren: Well, Mr. George, if they couldn't differentiate at the police station, or at the Court when they're getting a warrant of arrest, what coins they're interested in, how did they differentiate when they were in the house as to what coins they would take and what ones the would leave.

Mr. George: The officer apparently had a general description, at least, of particular types of coins right with him, and if he saw a particular container --

Chief Justice Earl Warren: Couldn't he have given that to the judge?

Mr. George: Pardon me?

Chief Justice Earl Warren: Couldn't he have given that to the judge?

Mr. George: It might not have been sufficient.

Of course, this Court has been very stringent.

If you don't dot your “i's” and cross your “t's” in getting the search warrant --

Chief Justice Earl Warren: So because he didn't think that was sufficient information that he had, he thought he couldn't get a search warrant, so he thought he would do it without one.

Mr. George: He thought it was sufficient information.

He thought that it would have been very, very difficult to meet this burden of setting it all out in writing and having it stand up and he thought it wasn't necessary in view of this Court's decisions stretching back many, many years, that a search is reasonable if it is incident to an arrest.

That is why he thought that he did not have to.

Chief Justice Earl Warren: Mr. George, may I ask you this one.

When you and I were discussing the number of search warrants, I thought you indicated that at some place in the record here there were some figures on that.

Mr. George: Not in the record.

No.

Not in the record.

The only figure related to that is the number of burglary investigations that Officer Del Coma himself had for a month, but the number of search warrants --

Chief Justice Earl Warren: But you told me something like 200 in the Central District of Los Angeles and so forth.

You don't have any figures like that in?

Mr. George: I have only a letter from the District Attorney's office.

I thought the Court might be interested in that point and I inquired.

Chief Justice Earl Warren: Would there be any objection, counsel, to it?

Rebuttal of Keith C. Monroe

Mr. Monroe: None I also have some figures.

Chief Justice Earl Warren: Very well we -- I'd like to have them.

Just might not be relevant, but it would be interesting anyway.

Rebuttal of Ronald M. George

Mr. George: May I file with the Court the letter that I received from the District Attorney's office?

Chief Justice Earl Warren: Yes, please.

Justice Hugo L. Black: Mr. George, I wanted to ask you one question.

You might not have time to do it between now and 12:00.

It's about a minute and a half.

You said many times that they had probable cause to believe he was guilty and that justified an arrest?

Mr. George: Yes.

Justice Hugo L. Black: Could you state briefly what evidence there was that they had?

Mr. George: Yes.

The defendant, prior to the burglary itself, had approached the victim and said, “How would you like to have you place knocked off,” and “Do you carry insurance,” and all of that.

Shortly before the burglary, just a few hours, he told a friend, “I have a big job going, we're going to knock off a coin shop, maybe $50,000 or $60,000 are involved.”

Justice Hugo L. Black: Was this a pawnshop?

Mr. George: A coin shop.

Justice Hugo L. Black: A coin shop.

Mr. George: Then shortly afterwards, he told the same friend, “Well, we broke through the two walls and we came across the wires, but we didn't really go through with the job completely.”

Then the next day he told the fellow, “Oh, well I was just kidding ,don't believe what I said.”

Then he told another person after the burglary, “I am involved in the Money Vault burglary, I may be going to jail on that.”

Then he negotiated with the police for the return of the coins.

This man broadcast all over town that he --

Justice Hugo L. Black: He negotiated for the return of the coins.

Mr. George: For the return of the coins, yes.

Justice Hugo L. Black: What -- how do you mean “negotiate”.

Mr. George: He and another suspect and an attorney, who the record indicates was representing both suspects, negotiated for the return of the coins for a civil release.

Justice Byron R. White: Actually negotiated at the police station.

Mr. George: At the police station so this --

Justice Byron R. White: Before arrest.

Mr. George: Guilt and the probable cause was beyond reasonable doubt.

I can't imagine a case with more.

Chief Justice Earl Warren: Well He did claim, though, that he had bought these things, did he not?

He didn't admit to any burglarizing.

Rebuttal of Keith C. Monroe

Mr. Monroe: No, he did not admit.

Chief Justice Earl Warren: He claimed that he had bought these from somebody, fictitious or otherwise.

Rebuttal of Ronald M. George

Mr. George: He gave a very unlikely explanation.

Chief Justice Earl Warren: Yes.

Mr. George: Yes.

Chief Justice Earl Warren: Very well.

We we'll recess now.

Mr. George: For one minute to --

Chief Justice Earl Warren: Yes, you may have one minute.

Mr. George: Thank you very much.

One point that I wanted to make in concluding was that the issue here under the Rabinowitz test is not really whether or not it is the police officer or the magistrate who is to make the decision to arrest and search; but rather, whether it is the magistrate who will decide it before the search or the magistrate after the search because of course as this Court has noted, it's the exclusionary rule which is the most effective means of deterring unreasonable search and seizure.

And as we have attempted to point out in our brief, California affords many, many opportunities at all stages of the proceedings to invoke the exclusionary rule and that means has certainly been effective, if not more effective, than the somewhat cursory examination which is given prior to issuing a search warrant.

And I want to note that I did find the letter, which I'll file with the clerk.

It does not cover just the City of Los Angeles.

It covers the entire County of Los Angeles, those search warrants issued by the District Attorney, but not by other law enforcement agencies.

It shows that a total of 225 search warrant issued by the District Attorney of Los Angeles County during 1968 and --

Unknown Speaker: Seven million people?

Mr. George: That is true, yes.

Approximately seven million people but this does not cover the various other law enforcement agencies in the city rather in the county which have also issued search warrants.

Justice Byron R. White: We assume there are many more -- we may assume, I suppose, that there were many, many more searches than that.

Mr. George: Search warrants?

Justice Byron R. White: No, searches.

Mr. George: Searches?

I think that's a fair assumption.

Justice Byron R. White: Yes.

Mr. George: Thank you Your Honor.

Chief Justice Earl Warren: Mr. Monroe.

Rebuttal of Keith C. Monroe

Mr. Monroe: Thank you, Your Honor.

To pursue this same point a little bit on the matter of warrants, I have shortly before coming here contacted the clerk of the Municipal Court in Los Angeles Judicial District, who is one of the few agencies in California, or anywhere, so far as I can find out, who has some statistical information available on search warrants.

To give you an idea of what Los Angeles Judicial District comprises, the entire county is authorized 125 Municipal Court Judges.

Los Angeles Judicial District, which is within that county, comprises 58 of those 125 judges.

So we have something here which is approaching half of the entire county.

In 1931, according to the letters I have, the clerk of this Court commenced keeping separate records of search warrants issued and papers received for search warrants.

They were numbered serially, commencing with the number 1.

As of March 12, 1969, these numbers had reached 1938 or, in other words, during this period of time, there had been approximately some 50 warrants per year, or something like that, although this is not a fair representation, since in 1968.

According to advice I have personally received from the clerk, there were papers processed in this Judicial District for 179 search warrants.

So the figure has gone up, but it was to me amazingly low for a 38-year period.

Unknown Speaker: We know.

Chief Justice Earl Warren: You'll submit that to us too, will you please, Mr. Monroe.

Mr. Monroe: Yes, I will.

The 1968 figures I obtained myself.

The letter covers the rest.

Chief Justice Earl Warren: That's alright.

Justice John M. Harlan: Do you have any idea of the comparable figures in other states?

Mr. Monroe: I do not, Your Honor.

I looked and I was unable --

Justice John M. Harlan: In the federal system itself?

Mr. Monroe: I do not know.

Turning to Rabinowitz, I think it is necessary to look to the Fourth Amendment itself.

I think we can see rather clearly two distinct philosophies in interpretation of the amendment.

Rabinowitz and Harris, in that line of cases, say not in so many words, but in terms of results they say, the Fourth Amendment consists of two clauses, one which prohibits unreasonable searches, and the other clause sets forth the procedure for obtaining warrants.

The opposing line of cases is, of course, Trupiano, Taylor versus U.S., and those similar cases which say this is not true, rather, there is a general requirement in the amendment which points to the use of warrants and with or without a warrant, any search which is unreasonable does not comply with the amendment itself.

The question which troubles me greatly in the Rabinowitz-Harris philosophy is that if the unreasonable search clause can stand by itself, and if there is not some requirement somewhere for the use of warrants as a general rule, but if unreasonable searches covers the ground, then we've violated a cardinal principle of statutory construction, because the unreasonable search clause really covers the substance of what's in the warrant clause.

It's not necessary to have the warrant language there.

And on that basis, I would submit that there must be something more to the amendment which suggests that under some conditions a warrant is required.

The facts in this case, I think illustrate with the search of a home, with very ample time, in fact conceded no exigent circumstances, grave question about cause for searching.

If this case doesn't require a search warrant, I ask what case possibly could, and if there is not a case that possibly could require a warrant, then the Fourth Amendment itself is changed.

Justice John M. Harlan: Well, of course, the development of this whole field, like so many areas of the law, hasn't been strictly logical.

If you take the first philosophy, or what you call the Harris philosophy, through its logical conclusion and say that all the Fourth Amendment requires is reasonableness under the circumstances, I would suppose, as a matter of logic, it would follow that if a policeman gets a warrant for the arrest of the man at his house and then finds he doesn't happen to be there, and he gets lawful access to the house because of his warrant, it would be very difficult to see why logically he wouldn't be reasonable.

That's the only test.

He could go ahead and search the house anyway.

This whole train of development hasn't been a matter of pure logic by any manner or means, has it?

Mr. Monroe: Thus, along that line of thought, Your Honor, that then, would cast doubt on Chapman.

It would cast doubt on Taylor.

It would cast doubt on all of the cases where there has been a search and not even an arrest.

They can't all be wrong, can they?

Justice John M. Harlan: I am suggesting that that is so.

I am suggesting that the law, if it remains perfectly stable, you can't search without a warrant except in very limited circumstances, one of which is incident to an arrest and, therefore, it's not quite accurate to say that there are two opposite philosophies as regards the interpretation of the Fourth Amendment as a whole, namely, reasonable or logically, a warrant in every case where you can get one feasibly.

Mr. Monroe: My purpose in addressing myself to this, Your Honor, was that if the reasonable clause is to be given primary meaning, then there doesn't seem to be any real, strong reason for having the Warrant Clause in the amendment at all.

For certainly a warrant which was issued without oath or affirmation, or without probable cause, would not, on its face, be reasonable.

Justice John M. Harlan: Well, we have both parts of the amendment.

Mr. Monroe: I think the amendment must be read as a whole, Your Honor.