HILL v. CALIFORNIA

Transcript: 

Argument of Joseph Amato

Chief Justice Warren E. Burger: Number 730, Amato, Hill against California.

Mr. Amato, you may proceed whenever you're ready.

Mr. Joseph Amato: Thank you, Your Honor.

Honorable Chief Justice, Associate Justices, this is another case that we have here in a long history of cases that the United States Supreme Court has decided in the past regarding the Fourth Amendment of the United States Constitution.

That amendment reads as follows, “The right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Certainly, this Court has treated the rights of private citizen in the past with great emphasis.

Weeks versus United States has held that a search based upon reasonable cause is allowed incidental to arrest providing that that search is reasonable.

Before we go into long facts situation of this particular case, I think it should be pointed out that the petitioner in this case is alleging that his particular arrest which was an invalid arrest and then subsequently the police went on with an unreasonable search that this was a violation to his Fourth Amendment rights even prior to this Court's decision last year in People versus Chimel.

Certainly, in this particular case, the petitioner appealed and opposed all information and all evidence regarding that particular case at the trial level, at the Court of Appeal, at the Supreme Court and now here before the United States Supreme Court.

The particular trial court at the time they were ruling on the evidence of particularly the diary which is really the relevant issue in this particular case because without the diary, the evidence is insufficient to convict the particular petitioner, that at the time the trial judge ruled upon the admissibility of the particular evidence and the diary that the trial judge made a statement that a ruling adverse to the prosecution would open Pandora's box to the particular evidence that was included in this particular case.

And what the Court meant, what the trial court meant at that time was not that this factual situation would open the Court, but this was opening such a vast exception to what this Court has ruled in the past.

It wouldn't fit, allow, and arrest, an arrest that was not a valid arrest, and this arrest of a mistaken person.

And then to go from that arrest on to search the premises, to search for things that are not necessarily connected with the crime or the fruits of the particular crime the police were searching for.

Well, the Court of Appeal after taking --

Justice John M. Harlan: Part of Chimel was carried backwards, then in this case, does this satisfy Chimel?

Mr. Joseph Amato: Yes, Your Honor.

I believe we have a question that this comes within the rule of Chimel that the --

Justice Potter Stewart: You mean it's invalid under Chimel?

Mr. Joseph Amato: It's invalid under Chimel.

Yes, Your Honor.

I don't believe that this is the big issue in this particular case although I'm sure that the Court has granted certiorari on the basis of Chimel and the decision on whether to make it retroactive or not but the petitioner in this particular case had this go on the Court of Appeal.

The Court of Appeal of California reversed based upon the law of Rabinowitz and Harris and then the Supreme Court of California affirmed the conviction in using those same two cases as guidelines.

It would seem based on the factual situation in this case that what we have here is the petitioner absent from his residence that the police finding information out from co-companions this case as the Court is aware of involved four individuals robbing a particular house and then two of those individuals shortly thereafter, a day or two thereafter was captured by the police on an unrelated crime possession of marijuana.

The police at that time had information from those particular police officers and the victims of the robbery itself also a bystander.

So it is not the petitioner's contention that there was not reasonable cause to arrest Hill.

Clearly, there was but it is the petitioner's contention that the rights of privacy that this Court has constantly held is the rights of privacy of the house and not the fact that reasonable cause allowed a mistaken arrest to then give effect and authority to an unreasonable search.

First of all, the arrest itself was made which the -- excuse me, the petitioner contends in debatably good faith.

First of all, there were four officers in this case.

Two of them carrying shot guns entered into the office of Hill.

I should say the apartment of Hill.

Miller was there.

Miller answered the particular door and immediately thereafter, the officers arrested Miller.

Miller stated that he was not Miller.

Miller gave identification showing that he was not Miller and then when the officers asked whether or not Miller or -- knew where Hill was, Miller replied no, that he did not know where Hill was.

Chief Justice Warren E. Burger: Well I'm not -- I'm not sure the significance of his disavowal or his claim that he was Miller and not Hill.

That is not unusual for people engaged in this kind of business to carry false identity cards and a lot of other things, is that no so?

Mr. Joseph Amato: That is correct, Your Honor but I think from the standpoint, when you take all these factors, the fact that there was couple inches in discrepancy in the height, 10 pounds in the weight that that could be said that he was Miller and that he was in Hill's apartment that at this particular point in time, he showed identification that he was Miller.

There's no information that the officers had prior to go into the residence of Hill that there was another person and there was no indication that Miller knew that the officers were coming in there or Hill.

So the officers and I think the case cited in the friend of the court brief shows that the officers are required to use diligence and prudence when they arrest the particular person and most of these cases hold that when a person or officer does not use diligence that in fact is an -- a bad faith arrest.

In one particular case cited by the friend of the court brief, it even held that particular officer liable in damages for an amount of $1,500.00 and in that particular dissenting opinion and I'm referring to Walton versus Will, 66 Cal. 2d 509, the dissenting opinion stated that in all respects the description of accused was either identical with or closely approximated that of respondent and that was a particular same name case.

In this situation, the names were not the same at all.

Archi --

Justice John M. Harlan: Would you have expressed the language by the state courts officers though mistaken in their identification, (Inaudible)?

Mr. Joseph Amato: Yes, Your Honor.

Justice John M. Harlan: So you have to start with that practice; your argument also starts with that practice.

Mr. Joseph Amato: Well, I think it starts from that premise from the standpoint --

Justice John M. Harlan: -- those findings.

Mr. Joseph Amato: That's correct, Your Honor.

But I think in all these particular search and seizure cases that all the facts are important that this initial arrest should also be considered in light of the total search itself which the petitioner contends is unreasonable so then we go on to the search itself.

The search was directed towards the bedroom, a material search which disclosed a particular diary and some of the other fruits of the search.

A diary is the area that the petitioner contends as totally unreasonable as far as the search is concerned and that it is totally inconsistent with Rabinowitz, with Harris or any other cases that this particular Court has decided.

First of all, the officers had no way of getting the search warrant based upon the information they had regarding the diary.

The fact that they were able to search that particular residence and assuming they are allowed to search the drawers and rummage through the particular dresser drawers, this Court has always state in the past that because you have a lawful search does necessarily mean that you have a right to seize.

In the respondent's brief, it is indicated that they came across this particular diary in the search for other items and we're talking about cameras, we're talking about clothes and certain types of hoods that the particular suspects wore during the commission of the robbery.

Even in People versus Harris which is probably the most liberal decision allowing the police to search, this Court held that not in all cases will they allow such an extensive search.

Certainly, in Harris they were looking for checks, two to $10,000.00 checks and by the nature of the search, by the nature of the things that they were looking for, it would require looking into a particular drawer or books or personal belongings.

But what information the officers had in this particular case did not require that type of search.

And if in fact they did and as concluded by this Court, that they made a reasonable search then it's submitted by the petitioner that it was an unlawful seizure.

And Boyd versus United States has held that an unlawful search or an unlawful seizure are not dependent upon each other.

So certainly, the petitioner is strongly contending for that one item alone that it was an unreasonable search and seizure.

Justice Potter Stewart: And that's a proceeding on the premise that there was a probable cause to make an arrest?

Mr. Joseph Amato: Your Honor, we assume --

Justice Potter Stewart: Of Hill?

Mr. Joseph Amato: Yes, Your Honor.

I don't believe there's any question.

We have not raised issues that we don't think are extremely material and relevant or strong issues so to speak.

We have raised issues relevant to the arrest itself and the seizure itself and certainly we wanted the arrest itself, the fact that it wasn't the person that the officers were there to make sure that all the circumstances of the case were before the Court.

Certainly, it doesn't need dwelling on that Rabinowitz and Harris which the California Supreme Court relied on to affirm the conviction of the petitioner is totally different from the fact situation in this case.

I already indicated this in my particular brief and I don't believe it needs elaboration on at this time but certainly we are emphasizing at this time that there is really no degree of consistency with the fact situation, the application of the Fourth Amendment in that case as compared to the case at bar.

I would like to go to the second point and that's to the determination of whether or not this Court will make Chimel, People versus Chimel retroactive or not.

In this particular case, I think it directly comes into play another part, another exception, another area on the part of the prosecution to press their case.

I think it's another area that this Court could reverse in addition to the very initial contention the petitioners made.

And that is the fact that Chimel, People versus Chimel decided last year clearly limits the police to search a particular residence and while many questions have been raised as to how far the police are allowed to search certainly, this instance where the particular arrest was made in the living room or this Court hasn't cited that as not a material fact.

Then the search was made beyond the immediate scope of the particular petitioner that I quote, “petitioner because in fact he was not even present that the arrest could not or search could not pursue into the living room, into drawers and in fact the general and exploratory search to find evidence of the crime.”

Justice Potter Stewart: This was -- how big was this apartment?

Mr. Joseph Amato: This apartment was a one bedroom, kitchen and a small living room apartment, a four-room apartment.

Justice Potter Stewart: Four-room apartment including the kitchen.

And Miller was in the living room, was he, when the police came in?

Mr. Joseph Amato: Yes, Your Honor.

Miller was lying on the couch.

When the four policemen came in, he went to the door and was immediately arrested at that point.

Justice Potter Stewart: And the diary was found in the drawer of the desk or closet or be over something in what room?

Mr. Joseph Amato: It was found in the bedroom, in a small drawer in the bedroom.

Justice Potter Stewart: In the bedroom.

Mr. Joseph Amato: Now, insofar as retroactivity on this particular case, certainly, this Court has decided that it depends on a case by case basis, depending on the law, the actual effect that will have in the administration of justice and whether or not it will serve to a good effect on the past content of the courts.

Now, it is contended that the administration of justice will be strongly effective as a result of making Chimel retroactive.

The petitioner contends that this will not in fact be the case, that the courts are extremely flexible, and in the past, time and time again, the courts on major counties have been able to take some of their civil judges and utilize them for criminal manners and this happens on occasion even if when there is no strong decision from this Court changing the particular law.

The petitioner strongly contends that making Chimel retroactive will not have that greater effect on the particular administration of justice from the standpoint of having a lot of criminals who've been unconstitutionally convicted are being released.

Petitioners contended in his reply brief that surely the appeals that are pending now could easily affect the laws as this Court has enunciated in People versus Chimel.

It seems appropriate that when you review the cases regarding this particular problem in Alaska Supreme Court, the Court of Appeals in New Mexico that these cases have applied Chimel on direct appeals only and then when you review the cases you also see that they applied to these particular cases without opinion.

And when the cases are not utilizing Chimel on direct appeal that they seem to state what this Court has stated in Stovall versus California and the Desist case setting forth the three criteria that this Court strongly considers in their determination of whether or not a case in criminal law should be made retroactive or not.

But that the courts in fact have just come to a conclusion that when there is a constitutional finding before it that they review the facts as the law as it is in that pending appeal.

And it doesn't have to be satisfied with the law of opinion or justification but that in fact it seems reasonable to those particular judges that this case should be made as the law has stated by this Court and that set some date that when a particular case, an arrest was made two to three years ago and have all those particular arrests, then based upon whether or not it was constitutional or not constitutional and that's immaterial because the date of the arrest to Chimel, the date of seizure, search and seizure is not the same date as specified in the pending appeal.

This particular case was close to Chimel.

The petitioner contended at the time that the Court of Appeal that this was not a case where the law of Rabinowitz and Harris and I am referring back to the first issue if I may was not constitutionally sanctioned to search even at that time.

So certainly insofar as Chimel is concerned which far limits the courts and far limits the courts in affirming the rights of the police officers to search.

It would be submitted by this petitioner that certainly Chimel should made retroactive at least that the case is on direct appeal.

Chief Justice Warren E. Burger: Thank you Mr. Amato.

Mr. George.

Argument of Ronald M. George

Mr. Ronald M. George: The sole issues in this case are whether the search of petitioner's one-bedroom apartment was lawful under then existing law, and secondly, if the search was not lawful under present law as defined by this Court's decision seven months ago in Chimel versus California whether Chimel is to be applied retroactively.

The factual setting in which the lawfulness of the search arises is a rather unusual one and I therefore like to chronicle it briefly.

On June 4, 1966, a robbery involving a brutal assault was committed by a gang of four armed men, one of whom was petitioner.

As part of the series of robberies committed by this gang or we can say which this gang was suspected, in a particular district in Los Angeles.

Two days later after this robbery, in the evening, the police acquired probable cause to arrest petitioner and this is conceded by petitioner in this Court.

I won't dwell upon the probable cause to arrest petitioner.

That's clear and as I said conceded.

The police then proceed to petitioner's apartment in order to arrest petitioner and to retrieve the weapons used in the assault and robberies and in order to retrieve the disguises in stolen property.

In fact, this is done with the consent of one Bader who is one of the members of the gang, Bader and one other man have been placed in custody and Bader is petitioner's roommate.

The police knock and identified themselves and they're confronted by somebody who later turns out to be Mr. Miller.

Now, Miller is the sole occupant of the apartment at this time, and he opens the door.

He looks almost identical to petitioner.

In fact, the discrepancies are almost negligible, brown hair, brown eyes, almost the same height and weight.

In fact, petitioner was two inches shorter, 5'10" instead of 6 feet and he was 10 pounds lighter as well.

But that is a negligible discrepancy and one that certainly isn't necessarily apparent to the officers or one that need not be apparent.

Chief Justice Warren E. Burger: That issue is foreclosed unless we're going to review the findings of fact, isn't it?

Mr. Ronald M. George: I would think so, yes because the trial court and the Court of Appeals and the State Supreme Court all found that the officers did act with good faith and I know this Court has stated that good faith is not a substitute for probable cause but of course there's no substitution here.

There is ample probable cause.

Justice Potter Stewart: By good faith in this context, do you mean that the -- you submit that there was a finding by both of the courts state or all three of the courts of the state that the officers genuinely believe that Miller was Hill.

Mr. Ronald M. George: Yes.

Justice Potter Stewart: Do I understand you correctly?

Mr. Ronald M. George: That is correct.

Yes.

And there are many things that support this, this person in addition to, is almost identical physical description.

He suspiciously and evasively denied having seen any guns in the apartment yet when the officers are standing outside the apartment after the door has been opened they see an automatic and a loaded clip right on the coffee table in plain view.

The person denies being petitioner but he's unable to give any satisfactory explanation for his presence in the apartment.

He says he had some kind of identification showing his name to be Miller but this doesn't mean much to the arresting officer as the Chief Justice noted, it's commonly known and the trial court took judicial notice of this fact that many criminals at least in California do carry false identification.

It's an easy thing to combine.

And why should the officers believe this identification when they -- when he just lied about the gun not knowing there was a gun in plain view.

The small part was then searched incident to this valid but mistaken arrest of Miller and --

Justice Thurgood Marshall: What were they searching for?

Mr. Ronald M. George: They were searching for the weapons which they've been told would be at the apartment.

The weapons used in this crime and disguises which they had heard were there and presumably some of the stolen property as well which they had reason to believe were there.

Justice Thurgood Marshall: So diary was just a windfall.

Mr. Ronald M. George: That is correct.

They had no idea and it's not even suggested that anybody had any idea there was such a diary.

I don't think it's something we would assume that a person would write, “Dear diary, yesterday I committed a crime.”

Justice Thurgood Marshall: No, if you by any chance have gone for a search warrant, you wouldn't have been able to mention that diary, wouldn't you?

Mr. Ronald M. George: Well, it would've happen, we would submit.

Justice Thurgood Marshall: Would you?

Mr. Ronald M. George: Well, I will answer that.

I think that one could have obtained this diary with a search warrant in a following way by searching for weapons, for looking for weapons in a place where weapons might logically be a bedroom, a dresser drawer opening up the drawer, seeing the diary opened to that current page and then going to use that information lawfully.

Why don't you get a search warrant?

Justice Thurgood Marshall: What if the constitutional requirement to specify what you're searching for and where you search?

Mr. Ronald M. George: Yes.

Justice Thurgood Marshall: Is that gone?

Mr. Ronald M. George: That is not gone.

But the officers would've acquired information lawfully by being where they had a right to be in a place where they might find --

Justice Thurgood Marshall: Well, you still will agree, will you not that you would be a little better off if you have that search warrant, just a little bit better off?

Mr. Ronald M. George: We would be better off but of course that was not the law at the time and we have an alternate argument that even under current law, there were exigent circumstances here which would have not require the officers to obtain a search warrant.

Justice Thurgood Marshall: What were the exigent circumstances?

Mr. Ronald M. George: The exigent circumstances were as follows.

The officers have two suspects of the four robbery gang members in custody.

They knew that there was a series of robbery being committed.

They just found out that petitioner was one of the men and this was after court hours.

There was a great likelihood that other --

Justice Thurgood Marshall: Well, the still have dates straightened out.

They got this information on June 4, right?

Mr. Ronald M. George: No, I'll give a chronicle if Your Honor please.

On June 4, the robbery was committed, at 10:30 p.m., that's a Saturday night.

On June 6, Monday, at 5:30 p.m., the officers commenced their talk with Baum and Bader who are in custody.

That talk finishes sometime thereafter, we don't know exactly when.

At 8:15, that same evening, they go to the apartment.

Justice Thurgood Marshall: Same evening.

Mr. Ronald M. George: Same evening.

Now, there were two members of the gang at large.

We submit that the officers did not have to wait and worry about these fellows committing other crimes.

Also the -- there was a distinct possibility that petitioner would learn of the fact that two of the members of the gang have been taken into custody and would remove these weapons from the apartment.

And finally, what one could say well, why they didn't go ahead and seized petitioner, arrest him and then the next day go back to the search warrant.

Well, we have this fourth member of the gang back out who was still at large and he might be alerted by the fact that these three members were placed in custody and might remove the property before a search warrant could be obtained.

So, this is not the type of situation that Chimel criticizes where the officers routinely as a matter of course dispensed with the requirement of a search warrant.

Chimel itself is replete with language recognizing that there are situations where a search without a search warrant is justifiable and we would submit strongly that this is one of those situations.

Now, this is an alternate argument because we urge very strongly that Chimel is not retroactive but in turn I feel that the search passes master under either Chimel or pre-Chimel law.

Justice Hugo L. Black: Suppose it -- suppose it were retroactive, why do say it's a safe to reason?

Mr. Ronald M. George: Because the officers were confronted with a situation where time was of the essence.

This gang was going around assaulting and robbing people.

The evidence might be removed from the apartment if the other members of the gang at large were apprised of the fact that some of their members had been arrested.

And it's pretty clear that they all had access to this apartment which --

Justice Thurgood Marshall: Mr. George, directing your attention to page 76 which appears to be the opinion of the Supreme Court.

It said that they were arrested on June 5th and the information was obtained on June 5th and again on June 6th, am I reading it right?

Mr. Ronald M. George: And again, in June -- you know, I read that over last night and I thought I've been missing something.

I come to that record Baum and Bader were only spoke -- only spoke once to the arresting officer.

There was no telling him and not telling him again --

Justice Thurgood Marshall: Well, how in the world did the Supreme Court of California make this mistake?

Mr. Ronald M. George: Well, as this Court has found previously, they are not infallible and I submit this is a mistake on their part.

Justice Thurgood Marshall: Occasionally, this Court makes factual errors in its opinions too.

Mr. Ronald M. George: Yes.

But I -- I just last night looked over this and read the entire record carefully including the state court record and it's clear that this officer spoke only once to Bader and Baum and that was the only information he had from them, that he acquired it 5:30 on June the 6th.

And I think these state findings are entitled to great weight where they are supported by the evidence especially regarding the good faith of the officers here.

And I think too the fact of judicial notice where the Court can consider as evidence these facts of common knowledge that the false identification is being carried and that although the man was booked under this different name that in California you're booked under the name you give.

So clearly, the officers did consider Miller to be Hill.

Now, I think we get to the heart of the case here.

We have a valid arrest and we assume it's a valid arrest.

Now, a search incident to arrest, of course, is permissible.

The scope bearing with the time, we submit, that the search occurred, pre-Chimel and post-Chimel.

Now, the question is what is the effect of this mistake?

First of all we'd like to note that it's highly unlikely that upholding this search would open up a Pandora's Box.

The party's diligent research does not disclose this factual situation arising in any other state or federal case.

It's a highly unusual situation and the Fourth Amendment bars only unreasonable searches.

Now, what is their unreasonable in conducting the same type of search which would have been permissible had the arrestee in fact and the petitioner and the officers not have made this reasonable mistake.

Justice Byron R. White: What did you expect to find with the diary, a book?

Mr. Ronald M. George: It's not clear.

All that was introduced are two pieces of paper.

Now, we don't know if they were in notebook form or what.

They --

Justice Byron R. White: Why do you expect to find in a book?

You're searching for weapons or disguises.

Do you expect to find something in a -- the book may have been in plain sight in those places where you were entitled if you were to look for some other things but all you can see was the book.

What makes -- what entitles you to look inside a book?

Mr. Ronald M. George: We don't know.

They did look inside the book.

We don't know that there was a book.

It might have been opened like that if there were book, since that was the current period.

Justice Byron R. White: Why would you read it?

Mr. Ronald M. George: You might just see it.

You might open up a drawer and there it is.

Justice Byron R. White: You see some pages but you just don't automatically know what those words say unless you take the trouble to read it.

What right did you have to read those materials anyway?

Mr. Ronald M. George: I think --

Justice Byron R. White: It's just a Fourth Amendment argument, is the Fifth Amendment argument here or was that raised in the court?

Mr. Ronald M. George: The Fifth Amendment point is made somewhat inappropriately by petitioner in this Court because it was not at all raised in either of the four courts in the state proceedings and it was not raised in the petition for certiorari, so in effect it's what Justice Jackson called the Irving case smuggling in an issue.

Justice Byron R. White: So you think it's just a Fourth Amendment question?

Mr. Ronald M. George: Yes.

Justice Byron R. White: Would you think you could have looked assuming the search you were making was valid, could you look in a sealed envelope?

Mr. Ronald M. George: In a sealed envelope?

I think it would depend on the envelope.Maybe there would be a knife between the pages of the book.

Remember there were two knives used.

Justice Byron R. White: It's been little narrow -- little narrow sealed envelope?

Mr. Ronald M. George: I don't think that the officers could look inside that kind of envelope.

No, not that it might at the present day law anyway and --

Justice Byron R. White: Or even pre-Chimel law?

Mr. Ronald M. George: Well, under pre-Chimel I think that they could really because the scope was not restricted and they can look for evidence, they can look for stolen property and they can look for pretty much what so legitimate matter of concern and I don't think there's any basic limitation on that.

I think the mere evidence rule being rejected in Warden v. Hayden eliminates this distinctions where we worry about one piece of paper which in one case maybe a so-called instrumentality by the court reaching a strained application of that doctrine, save it from a mere evidence.

I think that you can certainly look inside envelopes under pre-Chimel law.

I don't think there's any problem but again that's not our situation here.

The officers are looking only in places where a weapon could reasonably be.

Now, basically what the petitioner is relying on here in his attempt to persuade us that the search is unreasonable is an outmoded and totally inappropriate concept of property law.

He's saying, well fine the arrest is alright and this defendant here, he had the control over the premises in the sense of physical control, he could go and grab a weapon.

He could go run over to evidence but he didn't have control in a proprietary sense.

Well, that's a totally inappropriate standard.

I think that Katz has effectively buried these distinctions and the -- I think what the Silverman opinion says is very appropriate here.

It cautions that the scope of the Fourth Amendment cannot be ascertained by resort of the ancient niceties of tort or real property law.

And the Jones case, the opinion by Justice Frankfurter says the same thing.

Now, I think the principles involved in this case are graphically illustrated by considering the following hypothetical situation.

Let's assume that Miller was arrested in petitioner's apartment but the petitioner was right there.

And the police wanted to arrest Miller that they knew he was visiting there.

Certainly, even under Chimel, the police could search the area within the reach of the visitor.

The officer need not decide, well this is really Hill's apartment here and I have to risk being shot by Miller who might grab a weapon, he has the right to a certain extent invade the privacy of the proprietor of these premises.

Now, question is why.

Well, I think that there's a certain assumption of risk on the part of the defendant.

Here, the petitioner talks about the risk that the invasion of the petitioner's privacy.

Well, one takes a risk in inviting a visitor on the premises, just as one may risk tort liability if he falls over the carpet.

I think it's --

Justice Potter Stewart: This risk being that your visitor, your social guest may be somebody whom the police are pursuing or want to arrest for some reason and therefore going to enter your house and in the restriction search of your guest, they're going to an extent invade the privacy of your house, is that it?

Mr. Ronald M. George: Yes, exactly.

I think similarly, if one gives a key to ones apartment to somebody else or leaves the door unlock, one assumes certain risks.

Maybe a thief will enter.

Maybe a pursued felon will enter and that's the situation here.

Justice Potter Stewart: How did Miller get into this house?

Mr. Ronald M. George: We don't know.

And he gave a very strange explanation.

Apparently, just didn't come right out and say, “Well, I got in this way or so.”

He fudged around a bit and Frazier versus Cupp, the recent opinion of this Court stated with reference to the search of a duffle bag there.

Well, so and so's roommate didn't have authority to give consent.

Well, the Court said look and I believe it was Justice Marshall's opinion, “You left that bag there in his custody and you sort of assume the risk that he'd say, well, look through the bag.”

And I think that's what we have here.

Justice Thurgood Marshall: Is there anything in the record to show that held up Miller in custody in the apartment?

Mr. Ronald M. George: No, there's nothing to show that.

But he obviously got in somehow and --

Justice Thurgood Marshall: That's different from the duffle bag.

Mr. Ronald M. George: And I think what's interesting is that absolutely no defense was offered at the preliminary hearing or at the trial.

Not one word of evidence to come forward and indicate that this apartment had been locked or whatever.

Chief Justice Warren E. Burger: Well, you mean no claim that he was a trespasser?

Mr. Ronald M. George: Pardon me?

Chief Justice Warren E. Burger: No claim by Hill that Miller was a trespasser.

Mr. Ronald M. George: There's no claim whatsoever.

Similarly, I think that if Miller's -- Miller had been arrested in his own apartment, in Miller's apartment and this had all been a mistake, what would happen if the officers found marijuana on Miller's pocket, let's say or in the drawer.

I think it would be clearly admissible against Miller despite the invasion of his privacy, if it was a reasonable mistake to arrest Miller and to search his premises.

Justice Thurgood Marshall: You mean if a man, a word comes out that a six-foot, 200-pound blonde man committed the crime then the police have a right to go into anybody's apartment that fits that description.

Certainly, you don't mean that.

Mr. Ronald M. George: No, and I didn't mean to imply that.

Justice Thurgood Marshall: I thought so.

Mr. Ronald M. George: There's much more evidence here.

It would have to be a reasonable mistake and that's always going to be a case by case basis.

Let's say somebody says it's a six-foot, 200-pound blonde who lives in Apartment 6 at 1931 so and so drive.

Justice Thurgood Marshall: But you said, anyone I thought.

Mr. Ronald M. George: Well, I didn't mean to imply it would be that broad.

Justice Thurgood Marshall: And you understand Chimel to say that if you arrest the man to live in room, you could search every room in the apartment that he is able to walk into?

Mr. Ronald M. George: When there are exigent circumstances that this --

Justice Thurgood Marshall: That would go to a three-storey house.

Mr. Ronald M. George: No, not necessarily.

I would want to say what it is in the Warden versus Hayden.

Justice Thurgood Marshall: I thought Chimel said what was it would then where he could reach.

Mr. Ronald M. George: It said that is the normal rule and not to dispense with that, you would have to have exceptional circumstances and normally --

Justice Thurgood Marshall: And what's the exceptional circumstance here?

Mr. Ronald M. George: I attempted to outline --

Justice Thurgood Marshall: That he will go in and get a gun and shoot somebody?

Mr. Ronald M. George: No, that there were other robbers in this gang at large and that when they heard that petitioner's confederates were arrested or that petitioner was there, then they would come and remove these weapons from the premises.

Justice Thurgood Marshall: Well, couldn't they stay there until somebody got a warrant?

Mr. Ronald M. George: It's an interesting question.

I'm fairly rather pessimistic under California law.

Officers have asked me that.

I don't know under California law what would give the right to camp out in the apartment --

Justice Thurgood Marshall: For the same night that would give them a right to tear the door down, and say right I would assume, if they got one, they got the other.

Mr. Ronald M. George: Well, there was no tearing down of any door here.

This was a perfectly legitimate search.

They knocked and identified themselves.

They followed all the proper rules.

Justice Thurgood Marshall: They identified themselves, and this man says, “Come on in, fine.”

I just happen to have a loaded revolver laying on the table there which you can see that I'm a criminal.”

Mr. Ronald M. George: No, he says, “I don't have a loaded revolver and its right there.”

That's quite a different situation.

And there's a lot of other circumstances.

In other words --

Chief Justice Warren E. Burger: When he entered the room counsel, when he entered the room, could he, the officer at that time or the officers see whether there was more than one person, one occupant of the apartment at once?

Mr. Ronald M. George: No, they could -- they could not.

They had to of course look into areas where a person could be secreted but we're not going to claim the extreme position that they could look inside the drawer, because obviously a person can't be secreted there.

So we're justifying it on this other basics.

Chief Justice Warren E. Burger: But they could look in every opening from that main room in which someone might be able to conduct an ambush of the officers?

Mr. Ronald M. George: Certainly.

Let's say under a bed or in the closet or in another room.

They certainly have the right to do that, we would submit.

I think that if the Court would conclude otherwise, you know any felon could frustrate an arrest and search.

All he'd have to do is say, “I'm not the defendant.

I'm not the man you're looking for” and especially if he has phony ID.

Then what does the officer have to do.

Then he would stopped as a matter of law from continuing, he would have to go away and find some 100% proof that this in fact was the criminal and then perhaps the evidence could be removed.

This would really give the criminal a veto power over every search.

He just have to claim, “I'm not the man.”

Now, go prove it.

Now, I won't discuss this purported issue under the Fifth Amendment.

We pointed to that it was deliberately waived, I think, --

Justice Byron R. White: Let's assume -- assume for the moment it isn't.

Mr. Ronald M. George: Alright.

Justice Byron R. White: It isn't waived.

Do you think he's got a good Fifth Amendment claim in the introduction of the diary?

Mr. Ronald M. George: No.

I -- I certainly don't.

I think that Gullett itself.

I think it's noteworthy that Gullett said, there is no special sanctity and papers as distinguished from other forms of property to render them immune from search and seizure if only they fall within the scope of the principles of the cases in which other property may be seized.

So then we have Warden v. Hayden dispensing with this mere evidence rule.

Now, if we allow confessions from a man's lips.

We allow blood to be taken from his veins without a warrant under Schmerber.

Is paper more sacred than this?

I don't see how it can be.

Justice William J. Brennan: His testimony would.

Mr. Ronald M. George: I don't think its testimonial in a --

Justice William J. Brennan: (Inaudible) isn't that testimonial?

Mr. Ronald M. George: It's not testimonial in a compulsive sense.

I think that's what essential.

The Fifth Amendment is a safeguard against compulsory --

Chief Justice Warren E. Burger: Isn't the blood testimonial if it's got some alcohol showing in it?

Mr. Ronald M. George: That I think is equally testimonial and it's probably a lot more compulsive.

Justice William J. Brennan: (Voice Overlap) that wasn't testimonial.

Mr. Ronald M. George: As if to the extent that one would assume it to be testimonial, blood is certainly as much though I would think but this Court has ruled at --

Justice William J. Brennan: Do you want us to overrule Schmerber?

Mr. Ronald M. George: Pardon me?

Justice William J. Brennan: Do you want us to overrule Schmerber?

Mr. Ronald M. George: No.

Justice William J. Brennan: I didn't think you would.

Justice Byron R. White: Well, what about the --

Mr. Ronald M. George: I can't see a distinction though if we uphold that in Schmerber, I think we have to uphold it here and I think it's like a spy's paper where we say spy's papers enable, those are instrumentalities but the same papers are mere evidence or political assassins' notebooks, are those instrumentalities or are they mere evidence.

I think we could get into an awful lot of problems in this situation.

Finally, I have only about three or four minutes, I'd like to note our views on the retroactivity issue.

I think it's significant -- first of all, under Chimel, I try to indicate the exigent circumstances and then it was after court hours and the time was of the essence but we would submit that Chimel should not be applied retroactively and first of all, I'd like to ask leave of the Court to file a letter a listing recent decisions on the question of retroactivity if I might do that.

Chief Justice Warren E. Burger: As a supplemental memorandum?

Mr. Ronald M. George: Yes, it's giving citations --

Chief Justice Warren E. Burger: Yes, you may file it.

Furnish your friend with a copy of it of course.

Mr. Ronald M. George: Yes, I did this morning.

I've indicated --

Justice William J. Brennan: Can you help me out (Inaudible) California?

We pronounce this Chimel against Chimel?

Mr. Ronald M. George: Well, I have it from the horse's mouth that it's Chimel.

Justice William J. Brennan: Chimel.

Mr. Ronald M. George: Yes, although there have been five or six variance of the pronunciation.

Justice William J. Brennan: Chimel is the official correct pronunciation.

Mr. Ronald M. George: According to Mr. Chimel.

Yes.

There are three federal circuits and five states that have held that Chimel is fully prospective.

It applies only to searches conducted after the date of that decision.

In Alaska, New Mexico where the only jurisdictions that have decided to the contrary, we submit that Desist is the governable standard here.

Desist set forth the function of the three considerations, the purpose to be served, the extent of reliance and the effect on the administration of justice.

Chimel stresses in footnote 12 that the Fourth Amendment's purpose is to prevent not simply to redress unlawful police action.

Well, I don't see how it would help deter illegal police conduct to punish in effect police and prosecutors who would justifiably relied on this Court's decisions of many years standing and conducted searches in total compliance with those standards.

We're not talking about unreliable or false evidence.

It's only a procedural question not affecting the issue the guilt or innocence.

So in effect, and certainly the extent of reliance by law enforcement is clear, this Court two years before Chimel and one year after the present search in the Cooper case quoted that statement in Rabinowitz that has since been disapproved and I think it's significant that within three weeks of the decision in Chimel, 70% of the states joined respondents in a petitioning for rehearing and this shows the impact of this decision and it's been evident to me in going around explaining the police officers.

They regard this as a greater impact than Miranda.

They regard this as a greatest impact on their day to day enforcement techniques of any decision that has come down in the criminal field in recent years and the memorandum which is attached to this letter of the Los Angeles municipal court shows how that Court has had to completely revise its procedures and place judges on call nights and weekends to issue search warrants because of Chimel.

And we would submit that there would be an enormous impact on the courts in requiring them to retry a multitude of cases decided in reliance on Chimel and if there is any case in which this Court still believes that a new rule of constitutional law should be applied prospectively, this is certainly the case under the standards which this Court has held.

Justice Potter Stewart: Of course that argument can be made.

It's a bit circular and I'd say was suggested, as I remembered in Desist that the time this happened, this was not any sort of a violation of the Constitution even in the retrospective wisdom of Chimel because the Constitution itself prohibits only unreasonable searches and seizures.

Mr. Ronald M. George: I know.

I believe it was Your Honor in that footnote 12 in Desist to note that it can't be unreasonable if that was the law.

Justice Potter Stewart: And (Voice Overlap) agents who rely on the --

Mr. Ronald M. George: Yes.

Justice Potter Stewart: -- decisions of the courts can hardly be said to be acting unreasonably.

Mr. Ronald M. George: Yes, we certainly concur with that.

The --

Justice Potter Stewart: Well, I say that's kind of a circular in argument.

But it's not lacking in realism, isn't it?

Mr. Ronald M. George: I think not in view of the particular wording of the Fourth Amendment that searches are to be judged in light of their reasonableness and that certainly must imply what the law is at the time the search was conducted.

I see my time is up.

That's all we have unless there are any questions.

Chief Justice Warren E. Burger: Thank you.

You have something further counsel?

You have 10 minutes left.

Rebuttal of Joseph Amato

Mr. Joseph Amato: Thank you, Your Honor.

In answering the last question first, Your Honor, as far as the reasonableness of the search in this particular case, each case is certainly decided by its own facts.

Now, Justice Frankfurter in dissent in Harris indicated what is the criteria that the officers have when they make the particular search.

How far it can go?

And really, the decisions aren't that clear.

You can't determine what is reasonable and what is unreasonable as far as the extent of the search.

Now, how far can you go?

Can you go upstairs?

Can you go to the third floor, to the fourth floor?

Chief Justice Warren E. Burger: Well, we don't have to worry about that here, do we?

Mr. Joseph Amato: I believe you do, Your Honor.

Chief Justice Warren E. Burger: We just have to decide this case which is all on one floor in a moderately small apartment.

Mr. Joseph Amato: That -- that part is true but as far as now to the extent of the search.

Now, how could you make a search in a particular apartment of a diary when in fact, even before they went to that particular apartment, they could have gotten a search warrant.

They didn't know enough information within that particularity to get a magistrate to sign a search warrant specifying that particular diary.

The information that they have available did not include that information.

They could have got a search warrant for the particular information that they knew about from their co-defendants in this particular case.

Chief Justice Warren E. Burger: What if the warrant's application recited under warrant in turn recited, “Any books papers and records relating to the alleged crime?”

Mr. Joseph Amato: Well, I think that is so general in nature, Your Honor.

You would have to specify what type of books, what general -- you're talking about maybe the county --

Chief Justice Warren E. Burger: Well, what in the Constitution would require you to particularize more than that?

Mr. Joseph Amato: Yes, well Your Honor I think the Fourth Amendment states in itself that you have to be more specific than just to be so general.

That's why the general warrant has been outlawed in the past.

Chief Justice Warren E. Burger: Well, it says describing -- describing the particularity or substantially that, if you said books, any books papers and records relating to the crime.

Isn't that quite particular?

Mr. Joseph Amato: Well, Your Honor, I say that is insufficient to justify a search warrant and I don't think that --

Chief Justice Warren E. Burger: Well, would the search warrant be invalid then in your view?

Mr. Joseph Amato: Not the total search warrant.

I think it will be justified from the standpoint of the parts that they set forth with clarity and it would extend to the diary which would be illegal at which if they brought in the diary it would be insufficient but as far as the evidence it would be alright as far as the courts are concerned.

Now, counsel brought out a fact that Bader who was in custody consented to the officers to go to the petitioner's apartment.

I think the California court simply stated in my reply brief that Bader who has held in custody does not have the authority to strip the petitioner of all of his constitutional rights.

And certainly because Bader said he could go to that particular apartment doesn't mean that he can go ahead, the officer can go ahead and search it and as far as the petitioner contends, an unreasonable search.

Now, this point about this Bacca, B-A-C-C-A.

Now, Bacca was the third person who was not in custody.

Meaning two of the defendants were in custody, the petitioner was not available.

So the respondent says, there's a very big emergency here, “We can't go back and get a search warrant.”

Well, what is the emergency here?

What we're talking about its four individuals, police officers, two shotguns would have already arrested Miller.

Now, we have in fact if they thought it was Miller then they have three of the four.

The fourth man is not in custody.

The fourth man has access into this particular place.

So it seemed to me, that if they wanted to get this particular and protect the particular goods that were in that apartment and search it more in detail at a later time, proper and reasonable police procedure would be to have the officers stay at the apartment to survey it and if that fourth suspect comes back then they can make the arrest at that time, it would seem that that would be an asset to not search the apartment rather than have to search it right away and be fearful that this particular Bacca would come back and take the goods from that particular apartment.

Now, in so far as this diary and this is what the petitioner is contending at this time is completely unreasonable.

The other items that were searched, the petitioner contends, it is possible under Rabinowitz and Harris that these items may have been able to been searched and properly seized by the officers.

But in so far as that particular diary is concerned, I think it's the burden upon the prosecution when they are attempting to make exceptions to the Fourth Amendment that the particular officer show enough authority and enough diligence and prudence to justify that particular search and to show it into evidence and not have the petitioner show that he has the right supported by the Fourth Amendment but rather have the prosecution show the exceptions to the Court.

Chief Justice Warren E. Burger: Do you concede that everything about the search was valid except the taking of the diary?

Mr. Joseph Amato: No, Your Honor, I concede only that it may have possibly been.

Certainly, this case regarding the diary to me seems so clear cut in reviewing the case decisions in Rabinowitz and Harris and all the other decisions, Weeks and Leftkowitz, Go-Bart Company and reviewing in the light of Chimel, all these cases make it so crystal clear to myself and that the particular seizure, search and seizure of the diary was improper.

The most you can get I think is the search was valid, the seizure is difficult to comprehend as far as, in light of the Court's decisions in the past.

Justice Hugo L. Black: Well, do you claim that the seizure and the things seized were not relevant in the case?

Mr. Joseph Amato: Yes, Your Honor.

I think that they were making in general exploratory search --

Justice Hugo L. Black: I'm not talking about the search.

Mr. Joseph Amato: Or seizure.

Justice Hugo L. Black: I'm talking about, you do not assert, do you, that a diary which contains the confession of a man guilty of a crime is not relevant evidence against him?

Mr. Joseph Amato: Oh!

Your Honor, that's relevant and material, no question about it.

Justice Hugo L. Black: Thereto and if an officer seize it, do you say though that he couldn't get it?

Mr. Joseph Amato: That's without a search warrant, Your Honor, that's correct.

Justice Hugo L. Black: Without a search warrant even though he sees it.

Suppose he saw a weapon exactly of a description that was used to shoot a man, would you say they couldn't get that?

Mr. Joseph Amato: I would say Your Honor.

I think it depends on circumstances.

In the first instance if the officers knew or had reason or any evidence or any probable cause --

Justice Hugo L. Black: Suppose they didn't have evidence, but when they looked at it, they saw it was highly relevant.

Mr. Joseph Amato: Well, Your Honor, I'll say that they cannot seize that particular evidence without a search warrant.

I have no further question, Your Honor.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Amato.

Thank you for your submissions gentlemen.

The case is submitted.