HILL v. CALIFORNIA
Legal provision: retroactive application of a constitutional right
Argument of Joseph Amato
Chief Justice Warren E. Burger: We’ll hear arguments in a few moments, awaiting Justice Douglas in Number 51, Hill against California but we’ll wait on Mr. Justice Douglas.
We’ll proceed --
Mr. Amato, you may proceed whenever you’re ready.
Mr. Joseph Amato: Thank you, Your Honor.
Mr. Chief Justice, may it please the Court.
I’ll be rather brief in as much as this is re-argument and some of the factual arguments have been made by prior counsel today.
I’d like to briefly, if I may go over the facts of this particular case.
We had a situation in this case where there was a robbery.
Four individuals robbed a particular residence and then took some money, cameras, and some other personal property.
The day after the robbery which was June 4, the robbery date being June 4, on June 5th, two of the four accomplices to this particular robbery were captured in a narcotic situation and they were captured in the car of the petitioner Archie Hill along with other personal property that was recovered.
The two particular individuals that were captured told the officers that Archie Hill was one of the four participants in this robbery.
They implicate him to this particular time.
The police then checked out the association, the petitioner Archie Hill with the other two participants in the police records that they had available.
They got the description of Archie Hill which was approximately 5 foot 10 inches, 160 pounds.
They got the address and so forth.
On the 6th of June, they proceeded to the residence of Archie Hill, the petitioner.
At that time, the petitioner was not in his apartment.
We’re talking about a four-room apartment, one-bedroom.
There was a Mr. Miller in the apartment.
The officers came in to the apartment and upon noticing Mr. Miller, they made an immediate arrest thereafter shoving Miller aside, searching the other rooms and finding nothing.
At that time, Mr. Miller indicated that he was Mr. Miller.He showed the officers identification, showing that he was Mr. Miller.
He further indicated that he was waiting for Mr. Hill.
The officers in this case did not ask permission to search the premises.
Thereafter, they spent approximately two hours, making extensive search of the particular apartment.
Now, the primary purpose of the search was to recover the personal property, additional personal property and the weapons which included two knives and two guns in the apartment house.
Unknown Speaker: Did most of the search take place before or after Hill was arrested?
Mr. Joseph Amato: The search took place after Mr. Miller was arrested.
Unknown Speaker: After Mr. Miller was arrested?
Mr. Joseph Amato: That’s correct Your Honor.
Unknown Speaker: And before Mr. Hill was arrested.
Mr. Joseph Amato: Mr. Hill was not --
Unknown Speaker: And they never got to before getting arrested.
Mr. Joseph Amato: That’s correct.
Chief Justice Warren E. Burger: I’m not sure you made this cast of characters very clear as to who the man in the room said he was and who really was and who the police thought he was.
I think it might help if you’d go over that.
Mr. Joseph Amato: Thank you, Your Honor.
Yes, Mr. Miller who in fact was Mr. Miller was arrested.
He stated that he was Mr. Miller.
The police said that the identification meant nothing to them that he fit the description of Mr. Hill exactly and therefore they felt that because criminals tend to, in many instances to avoid arrest they will falsify their identification.
So, in this situation, Mr. Miller was in fact Mr. Miller.
Mr. Hill was not in the apartment at all.
Now, the search was very extensive.
They went all over and what they recovered which is extremely damaging to the petitioner’s action was a personal diary in a drawer in a dresser and the reason why this particular evidence is extremely damaging even though they found other evidence associated with crime is because Bader, who was one of the four accomplices lived with the petitioner and he stated that he was involved in the particular crime.
Now, the --
Unknown Speaker: Could I interrupt you a second.
I’ll be right back with the Chief Justice’s question.
Is there any question -- is there any contention in this case for the police in arresting Miller, turned out to be not Mr. Hill were acting in bad faith when they arrested thinking that he was Mr. Hill?
Mr. Joseph Amato: Well, Your Honor, I think the Court of Appeal that reversed this, indicated that the police were acting in good faith when they did reverse the conviction.
There certainly is evidence in there that could be argued that they were not exercising good faith but the Court of Appeals in reversing stated that the officers apparently acted in good faith.
Chief Justice Warren E. Burger: What about the trial court?
Mr. Joseph Amato: The trial court.
Chief Justice Warren E. Burger: It was directed to trial court on that score.
Mr. Joseph Amato: The trial court in this situation, I think it is important what the trial court said and what they were thinking at that time.
It took two days after this trial, excuse me, after this matter was submitted to make a determination and in the trial record, the court indicated that the officers were acting good faith.
However, the Court further indicated that he realized that he may be opening Pandora’s box that Rabinowitz and Harris was never intended to go this far.
Now, certainly, we contend strongly right from the outset that Rabinowitz and Harris are not applicable to this particular case.
Certainly, counsel in the prior cases have already indicated this in so far as the factual details in Rabinowitz and Harris, the location, the office in Rabinowitz, the public manner and so forth the fact that a continuing crime was committed.And then when you compare it to a particular diary, something that the officers even if they had the knowledge of that diary, even if they have plenty of time could never have gotten a search warrant for that diary and yet.
Unknown Speaker: Where was that diary found?
Mr. Joseph Amato: The diary is found in a dresser drawer in the bedroom.
Unknown Speaker: Was it the entire diary or just a page?
Mr. Joseph Amato: Just a couple of pages but they were the dummying pages implicating the petitioner in this and really --
Unknown Speaker: If it was trying to get it to the officers, do you think a couple of pages from a diary or just a couple of pages in the drawer?
Mr. Joseph Amato: That is not clear from the record, Your Honor but it is just couple of pages.
Unknown Speaker: Incidentally, I gather, you could have object on Fifth Amendment ground.
Mr. Joseph Amato: Your Honor, I didn’t handle this matter in the trial level and the only reason I didn’t object was the same basis that I didn’t object to the fact that he was found guilty of kidnapping under in effect a little Lindbergh Law and clearly, the facts that I’ve stated here do not indicate any type of kidnapping.
Fortunately, the Superior Court in San Francisco County has reversed that to habeas corpus and this leads I think possibly to another matter here where we are talking about the second-degree robbery.
Here is an individual serving the fifth year in the state prison on an effect a one year minimum prison sentence.
The Rabinowitz case and Harris case, I think when you review those cases very carefully, it’s interesting to know that they infer throughout the decision itself that it should apply to those particular facets in Rabinowitz and Harris but unfortunately, this Court did not see fit to expressly state that.
And as a result, the States across this country have just murdered this decision giving it unrealistic results as far as these particular petitioners contentions concerned are.
Certainly, the factual situation when you put Rabinowitz and Harris together come up with a situation where really you could almost fit nearly every factual situation to a situation where you do not need a search warrant and if you get these search warrant, you’re better off without it because you can go further like in this particular case.
They never could have got any search warrant for that diary and yet because if gone beyond the scope, they are able to bring in this extremely damaging evidence.
Justice Potter Stewart: Why couldn’t they get the diary under the search warrant?
Mr. Joseph Amato: Well, in this particular case -- in the first place they knew absolutely nothing about a particular diary.
Justice Potter Stewart: Well, I know but is there anything apart from that?
Mr. Joseph Amato: Well, yes Your Honor.
Then there will be a strong Fifth Amendment objection compelling the particular petitioner to get evidence of this sort will just is self-incriminate if in fact they knew this particular evidence.
Justice Potter Stewart: What about Warden and Hayden?
Mr. Joseph Amato: Well, I think this is different in Warden and Hayden in several --
Justice Potter Stewart: But this question was reserved for Warden and Hayden.
Mr. Joseph Amato: I’m sorry, Your Honor?
Justice Potter Stewart: This question was reserved, wasn’t it?
Mr. Joseph Amato: That’s right, Your Honor, it was.
Now, in so far as retroactivity, and I think all the other points that’s spelled out in the brief and since this is re-argument, we’ll at least reserve until I hear the Attorney General.
As far as retroactivity is concerned, I don’t think this Court has to go that far.
I don’t think -- now, of course, the arguments I would espoused would be the same as that expressed in the Williams case and here’s a case that’s on direct appeal that one of the differences and the big differences that I think this Court should consider when a case is on direct appeal and one that is being attacked collaterally from the standpoint of retroactivity is the fact that on direct appeal.
Certainly, the Government and the Attorney General and all those prosecutors should be fully aware that there is always the possibility that the case will be reversed and they should keep their witnesses and keep their evidence and keep all the things necessary to prosecute the case again in advance opinion, the possibility of a reversal.
Chief Justice Warren E. Burger: How long do you think they should be obliged to keep the case together?
Mr. Joseph Amato: Well, Your Honor, I don’t believe there can be a time limit but a direct appeal on expressly on issues that are involved.
Now, I believe, the Government in the prior case just mentioned that bringing up appeals on the various other matters.
Well, not relevant to the particular issues that are involved here.
And then they come in on that way, there could be exceptions to that extent.
Chief Justice Warren E. Burger: In California, if they went back for another trial, may they use the recorded testimony of the missing witness who testified at the prior trial?
Mr. Joseph Amato: Under certain exceptions, Your Honor provided that is unavailable.
Chief Justice Warren E. Burger: That’s what I mean, unavailable or missing witness.
Mr. Joseph Amato: Yes, Your Honor.
Chief Justice Warren E. Burger: In other words, no different from the federal.
Mr. Joseph Amato: That’s correct, Your Honor.
I think in conclusion here at this time, I just like to indicate to the Court that this case right from the outset was attacked on the Rabinowitz and Harris theory that the really Chimel was not a criteria so far as taking this case up and that during the whole procedure up, it was a very difficult question and I think that the reason it was difficult was because of the expanded, critical decisions of Rabinowitz and Harris as we have gone along in time and the trial court when they indicated, they are opening a Pandora’s door was not as the Attorney General indicates in this case.
Opening a situation where if every case there’s a person who is not in that particular apartment then all of a sudden, you open the door in that area.
What they are talking about really was Rabinowitz and Harris gave the Government wide latitudes in this search.
Now, we’re going to go into a situation where the person doesn’t have to be there, then all of a sudden, you’ve come to a situation where really, there just isn’t going to be any exceptions to amount to a material reason why they cannot search once they have the arrest.
And I would submit in the interest of justice particularly in this case and I am arguing particularly in this case because of the situation where the equities should come out where here, an individual has served in his fifth year on a minimum one year has never been up for parole because he was convicted of a kidnapping charge of a clearly denied due at that time.
And the court --
Justice Potter Stewart: Could you say that convictions have been set aside in other proceedings?
Mr. Joseph Amato: Yes, Your Honor.
[Voice Overlap] This year it was set aside.
And I --
Chief Justice Warren E. Burger: But isn’t that the problem of the State Courts of California to deal with the length of this subject.
Mr. Joseph Amato: Yes, Your Honor.
I am --
Chief Justice Warren E. Burger: Was that issue before us?
Mr. Joseph Amato: It really is not.
I’m just indicating this is an equitable situation when you’re drawing a very close line on this case because the trial courts in California knew about Rabinowitz, knew about Harris.
They -- the trial court made that statement in the record at the time that the Court of Appeal reversed 3-0 against and it’s just not that clear cut of the case and I think, sometimes, in those type of cases an information like that might be helpful.
Thank you, Your Honor.
Chief Justice Warren E. Burger: Very well, Mr. Amato.
Mr. George, you may proceed whenever you’re ready.
Argument of Ronald M. George
Mr. Ronald M. George: This is a re-argument in a direct appeal from the State conviction.
The sole issues in this case involved the search and seizure which occurred in the petitioner’s apartment in 1966 and to cite from the issue of the retroactivity of the Chimel decision, there are two or three issues involving the legality of the search under pre-Chimel law.
Before reaching this issues, however, I’d like to quickly dispose of the new element that the petitioner has injected into the case namely this collateral proceeding in the California courts whereby I believe within a month, previously, the kidnapping count was set aside but that was on a state law ground and that is not even a final judgment that’s being appealed to the Court of Appeal.
Chief Justice Warren E. Burger: You said about previously, a month previously --
Mr. Ronald M. George: Previously to this State.
Sometime within the last month, I believe it was and that’s not even final yet.
And frankly, I don’t see any bearing on it.
The kidnapping count is gone but the robbery counts which carry a maximum of life imprisonment remain.
In fact, although petitioner’s minimum is one year since that time not applicable to him, the statute provides for a 15-year minimum whereas here there is a bodily injury to the victim, so that’s really something --
Chief Justice Warren E. Burger: Well, let’s not spend anymore time on that issue.
Mr. Ronald M. George: -- collateral.
So, basically getting to the search and seizure issue, I’d like to again outline the facts although counsel has because they are a bit confusing and I don’t think a complete statement has been given.
On Saturday, June 4, 1966, a robbery is committed involving a brutal assault, an unnecessary assault by a gang of four armed men.
One of whom is petitioner and this is part of a series of robberies in the San Fernando Valley area of Los Angeles.
Now, two days later, the police acquired probable cause to arrest petitioner, and petitioner at page 10 of his opening brief really conceives that there is probable cause to arrest him, so there’s no need to dwell in detail on that.
What the police do is they proceed to petitioner’s apartment.
They do not have a search warrant or an arrest warrant.
They go in order to seize the weapons and the stolen property that’s involved with the robbery in the present case and this is even arguably done with the consent of one of the other robbery gang members who is in custody.
But that is not central to the case.
The police --
Chief Justice Warren E. Burger: To whom are you referring when you say in custody?
Mr. Ronald M. George: That is Mr. Bader.
He is one of the four men, Baum and Bader were arrested.
Chief Justice Warren E. Burger: He’s told them about all these?
Mr. Ronald M. George: He’s told them about this and they have independent information in their files connecting petitioner with these two men and with the series of robberies in that area.
So, the police --
Justice Potter Stewart: Well, Bader was the petitioner’s roommate, wasn’t it?
Mr. Ronald M. George: Roommate.
Justice Potter Stewart: And it’s not your submission, is it or is it that Bader gave consent to this search?
Mr. Ronald M. George: Well, I stated that arguably, he did because he said you can go to the apartment, and that’s where the loot is and the weapons are.
Justice Potter Stewart: That wasn’t the -- and that was the basis on which this was upheld by the Supreme Court attorney, was it?
Mr. Ronald M. George: No, although I noted briefly in our respondent’s brief that we don’t think that’s dispositive that fact that was not a ground upheld by the appellate court.
I just injected that but we seek to uphold the validity of the search on other grounds.
Now, what the police do is they now can identify themselves and they’re confronted by a man who opens the door and looks exactly like petitioner Hill.
And they have descriptions of petitioner Hill from the victims of which they were three, although not all of them gave full description but they have general descriptions and they have of course a description from petitioner’s roommate and they have their own information from their files involving previous arrest of petitioner.
So, they go there and there’s a man who the record later indicates is only ten pounds off in weight and two inches in height and these are discrepancies which would not necessarily be apparent to the officers and could be accounted for by any let’s say, ambiguity in the victim’s description.
Chief Justice Warren E. Burger: Two courts, the trial court has found, as a matter of fact, there was no bad faith and the Court of Appeals has affirmed that, haven’t they?
Mr. Ronald M. George: That is correct.
Justice Potter Stewart: I thought the Court of Appeals reversed the conviction and then it was -- and the State took it to the Supreme Court where it was affirmed.
Mr. Ronald M. George: That is correct but the Court of Appeal did affirm the validity of the arrest in such.
Justice Potter Stewart: In good faith, yes.
Mr. Ronald M. George: Yes, and that the arrest is such they have a rather curious approach to the legality of the search which mention in passing.
Now, what happens is before the officers even entered the apartment, they see a gun with a loaded clip in plain view from the threshold to the apartment, sitting on the coffee table.
They asked this man, “What do you know about guns being on the premises?”
He says, “I don’t know anything about guns being on the premises.”
But what about this one, you know, this already certainly alerts them as to evasive conduct by the person they suspected being the member of the robbery gang.
So, he is also unable to give any satisfactory explanation for his presence.
He’s asked county to get in here.
Well, I don’t know, I just got in here.”
“Where’s petitioner Hill?”
“Oh, I don’t know where he is.”
You know, so, then he says, “I’m Miller and I’ve got identification to prove it.”
But are the officers suppose to believe that when he tells them he doesn’t know anything about a gun in plain site.
So, they are entitled to -- as Justice Black stated in a previous argument today, to assume that the person who opens the door especially when he matches the tenant’s description is the person in control.
Now, this is where the divergence begins in the treatment of the case between the Court of Appeal and the State Supreme Court.
The Court of Appeals adopted the approach suggested by petitioner that somehow what is important in ascertaining the legality of a search is not the dominion and control of the person over the premises.
In a physical sense, but it’s somehow his proprietary control that matters.
Well, this is a concept that I believe this Court has rejected time and time again in the Jones case, the Silverman case and I think finally buried in the Katz case.
That the right to search incident to arrest whatever its scope does not depend upon proprietary matters but rather upon the physical dominion and control because after all, it’s for the officer’s protection and I think that Katz indicates that clearly we’re concerned with the ability of the person to grab a weapon.
All of these cases indicate this is a consideration.
Justice Potter Stewart: Is it your theory -- do you submit it all that it was a -- suggest, I mean, that Miller gave consent to this search?
Mr. Ronald M. George: No, not that Miller did. We have never made that contention.
Justice Potter Stewart: Do you suggest that Bader might have?
Mr. Ronald M. George: Yes, that is the case.
Justice Potter Stewart: But --
Mr. Ronald M. George: Not that Miller – No, Miller did not.
Now, hearing the arguments in the White case involving electronic surveillance and it seemed to me that the Katz decision has one of its facets of the protection of the right to privacy a concern merely with assuming a risk of invasion of privacy.
And I think that’s really the key to this aspect of this case, the risk that the public will have access to the person’s words or his property.
If you leave that telephone booth door open, it’s a different matter.
If you leave your front door open or you invite people into your premises, that’s a different matter and that’s exactly what we think is the case here.
There’s a certain assumption of the risk by having visitors in your apartment.
If you invite a visitor in, let’s say Hill has been there and they come to arrest Miller.
It was Hill’s place.
I don’t think that the fact that Miller had no proprietary control over the premises would mean that the officers would have to say, “We’re not going to search here because we’re invading Hill’s privacy.”
I think that Miller could’ve grabbed a weapon out a drawer next to him even under the Chimel scope and injured the officer.
Justice Thurgood Marshall: Mr. George, is there anything in the record as to how he did happen to be the --?
Mr. Ronald M. George: There was --
Justice Thurgood Marshall: I don’t think there’s much to do with this case but I’m just curious.
Mr. Ronald M. George: I’m curious about it myself and I have no idea from the record or from any other source.
All I know is that he was asked for an explanation.
He was unable to give one apparently.
Now, I think that the Stoner opinion itself recognizes that apparent authority can provide a basis for searching even when there is a mistake.
Now, I think what’s important here is that if you assume that Hill was there, the search that took place was totally proper.
It was a type of search that would’ve been permissible under pre-Chimel law and the fact that this mistake occurred in good faith should make no difference in the treatment of it.
Otherwise, certainly, any felon could frustrate a search by claiming to be somebody other than the petitioner and unless the officer had personally seen him, that would just automatically preclude further search.
And I think that Frazier versus Cupp also speaks in terms of assumption of the risk as far as the scope of permissible search.
Now, one thing I would like to get into after concluding now that the scope of the search was unexceptional, the items being found in the bedroom is this question of the diary.
I think, other than that, there can’t be any particular novelty to this case under pre-Chimel law.
Now, first of all, we’d like to state strenuously that we believe that issue is improperly raised before this Court.
It’s been --
Justice Byron R. White: It’s because no objection?
Mr. Ronald M. George: Not on this ground.
No, in fact, perhaps the making of an objection on other grounds is affirmatively indicative of a waiver of an objection on this ground.
Justice William J. Brennan: But the objection actually made was on Fourth Amendment ground, wasn’t it?
Mr. Ronald M. George: On Fourth Amendment grounds to all of the evidence in general.
Justice William J. Brennan: What do you do with that statement in Boyd and that the way you’re dealing with something like diary in an incriminated statement, the Fourth and Fifth Amendments almost run into what?
Mr. Ronald M. George: Well, that language does appear.
I think that --
Justice William J. Brennan: I mean for the purposes of this proficiency of the objection of the Fifth Amendment or the Fourth Amendment context.
Mr. Ronald M. George: Well, I don’t think that that can really be dispositive of the issue or even that significant because after all, if we look at the purpose of an objection, it’s to apprise opposing counsel and the trial court of the basis for the objection.
Justice William J. Brennan: Yes, but doesn’t the objection on Fourth Amendment grounds as to diary owner necessarily implicate the Fifth Amendment consideration on the issue of reasonableness?
Mr. Ronald M. George: I would say particular not in view of the novel nature of this allegation because I know of no cases under California law or under federal law applicable to the States where it has been held that because this is a document, that alone a -- bars its admission in evidence so --
Justice William J. Brennan: Incidentally, is that -- are those pages anywhere in the record?
Mr. Ronald M. George: The objections?
Justice William J. Brennan: Of the diary’s pages?
Mr. Ronald M. George: Yes, the diary can be found at --
Justice Potter Stewart: The diary said is on page 77 of the appendix of the footnote of the opinion of the Supreme Court of California by --
Mr. Ronald M. George: And on page 41 itself.
It is as the Supreme Court of California concludes a dummying account of petitioner’s involvement.
Really, it’s a rather unusual thing, it relates the fact of the robbery and that the -- some of this is in criminal jargon but in effect the -- some of the members of the gang including petitioner went to TJ, that’s Tijuana and scored seven keys which means purchasing 7 kilos of marijuana.
And that then when came back, they went to bed and then couple of them went out to get something to eat and then “just turned out to be a mistake because they got --”
Unknown Speaker: Well this is just about a detailed confession of the commission of the crime, isn’t it?
Mr. Ronald M. George: That’s correct.
Made under absolutely no compulsion whatsoever in view of the facts that criminals do not customarily confess their crimes with the introductory phrase, “Dear diary, yesterday I did so and so.”
This is something that is totally volunteered and that brings me really to the merits of this claim of a Fifth Amendment basis.
Let me state briefly though, this was not raised at the preliminary hearing, not at the trial court, not the Court of Appeals, not the Supreme Court of California, not even in the petition for writ of certiorari.
So under the Cardinal versus Louisiana decisions and this Rule 40 of this Court’s rules, I think that precludes it.
But on the merits I think that Gouled itself whose mere evidence rule was at least to a very substantial degree rejected in Warden v. Hayden precludes the plan made here.
And I think it’s --
Unknown Speaker: Well I know but wasn’t this -- this very question was reserved in Warden and Hayden.
Mr. Ronald M. George: To a certain extent it was.
Unknown Speaker: I know to a certain extent it was.
Mr. Ronald M. George: But this I think is dispositive, the following sentence if I may note from Gouled itself.
There is no special sanctity in papers as distinguished from other forms of property to render them in unit from search and seizure if only they fall within the scope of the principles of the cases in which other property may be seize.
Unknown Speaker: Yes.
But in 302 and 303 of Warden and Hayden, we were dealing there with clothing.
Mr. Ronald M. George: Clothing.
Unknown Speaker: And we said the items in clothing involved in this case are not testimonial or communicative in nature and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment.
This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object to at least in search and seizure.
Then that reserve this question?
Mr. Ronald M. George: I think that that language in conjunction with whatever this Court would want to do in the future certainly leaves the Court open to all the documents are in a special class.
My only statement is that Gouled in effect said there is a mere evidence rule and it’s not because of documents.
Documents and clothing, everything is the same way.
So once this Court in Warden dealt nearly with the issue before it namely non-documentary evidence, I think that by the weight of that language despite the reservation of the questions --
Unknown Speaker: Well, I suppose there are documents and documents, but what we have here really is, as you can see the detailed confession of this very crime.
That’s what he wrote down in his diary a very peculiar thing but that’s what it was.
Mr. Ronald M. George: That is true and if it is testimonial, however it is not under any compulsion.
Unknown Speaker: Well, I can’t imagine a jury who wouldn’t have filed that very effective evidence from which to convict, wouldn’t it, that confession?
Mr. Ronald M. George: Yes, but I hardly view that as the test.
I think the test is of course whether this was given under any compulsion and --
Unknown Speaker: Well, he certainly didn’t make -- and make it expecting and put it in his dresser drawer expecting some police officer to find it, did he?
Mr. Ronald M. George: I don’t think that the compulsion goes to the manner in which the document was acquired by the police.
I think the compulsion goes to the making of the statement.
And of course when the statement was made, it bears all the indicia of reliability.
Here’s a man in his own apartment writing down his own thoughts of the events of the day.
So I think that there’s no compulsion whatsoever.
It’s not as if the officer had said, “You’re under arrest.
Now, write down what you’ve done the last 24 hours.”
Now, some question was raised at the previous argument about why the officers looked at his diary.
Well, I stated that hypothetically the police might have been concerned with finding a weapon or some contraband there and I think that the events of the last day or two give some way to my hypothetical, it was interesting to read in the Washington Post yesterday about a man who attempted to escape from death row in Chicago and had in a hallowed out book of the collected works of Edgar Allen Poe a pistol and he succeeded I believe in wounding some of the guards and there is --
Unknown Speaker: Of course, did it to the extent you claim the search was valid based on consent of the absent owner or co-tenant.
It really doesn’t make much difference where they were looking, does it?
Mr. Ronald M. George: No, to that extent it would not make any difference.
Unknown Speaker: And the California Supreme Court referred to the consent issue and relied on itself, did it not?
Mr. Ronald M. George: No, in all fairness, I must say they did not uphold this on the consent issue.
Unknown Speaker: What did they say?
Mr. Ronald M. George: There was a footnote in their opinion and that can be found in the appendix on page 76, footnote 2 that the consent issue would not be decided by that Court because the facts surrounding it whether it was not a mere submission to authority not bound up with unlawful conduct were never developed.
So, in other words, the Supreme Court of California chose to uphold the search on grounds other than consent.
Justice Potter Stewart: The Court upheld it as a search incident to a lawful arrest.
Mr. Ronald M. George: Yes.
Justice Potter Stewart: Albeit a mistaken identity arrest.
Mr. Ronald M. George: Yes.
Justice Potter Stewart: Did it not?
Mr. Ronald M. George: That is correct.
Justice Potter Stewart: And decided that case before this Court’s decision in Chimel.
Mr. Ronald M. George: Chimel.
Justice Potter Stewart: However it’s pronounced and the question is whether this search was consistent with Fourth Amendment as construed in Chimel and if not whether or not Chimel should be given retroactivity -- retroactive application.
Mr. Ronald M. George: Yes.
Justice Potter Stewart: Is that about it?
Mr. Ronald M. George: Yes that is it and this issue --
Justice Potter Stewart: Then there are other complications in this case stemming from the mistaken identity and from the fact that a diary was among the things that were found was used against the person and perhaps and the possibility of Bader’s consent?
Mr. Ronald M. George: Yes.
From the diary I would like to add a couple more comments.
First of all Schmerber itself shifts -- denotes the shift in the Fourth Amendment view from property to persons and their right of privacy.
Unknown Speaker: Was the Fifth Amendment issue presented to the California Supreme Court?
Mr. Ronald M. George: No, not anywhere.
Not anywhere from the preliminary hearing.
Unknown Speaker: So, you don’t have any state decision on this at all?
Mr. Ronald M. George: No, none whatsoever.
Not even in the petition for writ of certiorari.
For the very first time in the opening brief, I would like to note one thing perhaps a little bit collaterally but the enormous effect of any ruling by this Court holding that papers are somehow sacrosanct was brought home to me recently working on the preparation of Sirhan Sirhan case involving the diary of a political assassin.
I think that if there’s somehow is going to be a special rule for papers that the Court has to be fully aware of the ramifications of this giving special treatment to that.
Now, I’d like to cover one aspect of the search before getting to the retroactivity question.
Namely the lawfulness of the search under Chimel because we do not, in any way, feel that the retroactivity issue is dispositive of this case, and I think it’s important to note that Chimel and the cases upon which it relies have held that the requirement for the search warrant should not routinely be dispensed with.
But that word is impracticable to obtain a search warrant that one need not to be obtained.
And this is precisely a case that comes within the exigent circumstances exception to Chimel and Chimel of course the officers had weeks to obtain a search warrant.
Here, let’s look at the chronology leading up to the search.
The offense was committed late on a Saturday night only after 5:30 p.m. on the following Monday, two days later that the officers acquire their probable cause to arrest petitioner.
This was after Court hours.
They would have had to wait well over 12 hours to obtain a search warrant and perhaps more.
It occurred to me that the first Tuesday in California at least is a Court holiday in the month of June in election year.
So this really might be a 36-hour wait instead of a 12-hour wait.
Now, was there any reason why they shouldn’t wait this day or to.
Well, the officers knew that there was a fourth member of the robbery gang at large.
This gang was armed and dangerous.
They’ve committed several other robberies in the area.
The officers knew that the weapons and the stolen property where at petitioner’s apartment.
Thus, time was of the essence.
The officers were confronted with what was very close to a hot pursuit situation.
And there were these reasons for not delaying the search until a search warrant could be obtained.
Petitioner and of the fourth member of the gang, one Bacca were at large and they could still be committing other assaults and robberies.
Secondly, the arrest of two members of the gang, just two-and-a-half hours before the search here might alert petitioner to flee from his apartment and perhaps from the jurisdiction.
And thirdly, if petitioner were arrested that evening and then a search of the apartment delayed another day or two, that fourth man Bacca might have come back of being alerted by petitioner’s arrest or the arrest of the two other men, Bader and Baum and realize that the officers would have seen incriminating evidence when they arrested petitioner and then might have removed.
Justice Thurgood Marshall: When was the petitioner arrested?
Mr. Ronald M. George: Petitioner?
He was arrested about Thursday or Friday of that week but that is not in the record.
Justice Thurgood Marshall: Well I mean, it’s the only submergence for the hot pursuit, you know you didn’t get him until Thursday.
Mr. Ronald M. George: But they didn’t know that.
They thought --
Justice Thurgood Marshall: Can I ask you, they have warrant then?
Mr. Ronald M. George: No there was -- I don’t know if there was a warrant or not.
Justice Thurgood Marshall: Well don’t you think it’s of interest to some people as to whether you have an arrest warrant then?
Mr. Ronald M. George: It’s of great interest to me too but it’s nowhere in the record, not even in the local court’s record.
Now, I think any --
Chief Justice Warren E. Burger: May I interrupt you a moment?
How much time will you want for rebuttal?
Rebuttal of Joseph Amato
Mr. Joseph Amato: One minute.
Rebuttal of Ronald M. George
Mr. Ronald M. George: I think it’s significant that the officers knew that both guns in the robbery and all the remaining stolen property were on these premises and that these were armed and dangerous man and they have to act quickly.
Now, I won’t go into it in detailed but the problem of exigent circumstances is graphically demonstrated in the amicus curiae brief filed by the Americans for Effective Law Enforcement (AELE).
They demonstrate the practical necessities for having a meaningful exigent circumstances exception to the Chimel rule.
The brief that that organization is filed, details a couple of presently pending cases where the murder weapon itself was disposed of during the time that the officers sought to comply with Chimel and went out to try and get the search warrant.
Now, one related problem of course is what can be done to secure the premises and that’s one of the most serious problems and -- in California, our view is that the premises cannot be secured to the extent that people who are not involved in criminal conduct are restrained, their movements are followed around the house.
Perhaps a matron has to come because the wife of the petitioner is there.
She wants to use the facilities.
She could dispose of evidence you have to have and armada of men and equipment there to follow everybody around the house.
So I think that there’s a serious problem about that and that is what has been most difficult to live with under the Chimel decisions.
Now as far as retroactivity is concerned, we detailed our views in the brief and I think it’s important of course to apply a fully prospective test to the Chimel decision.
The purpose of the decision of course is to deter unlawful police conduct.
That’s not going to be deterred by punishing police officers for what they did relying on the existing law as decided by this Court several years ago and up to two or three years ago specifically at the time the search was conducted.
There is certainly has been reliance and the effect on the administration of justice of a retroact of application exist.
Chimel decision would be I submit greater than the effect of any decision of this Court on the administration of justice.
Just thousands of prisoners would be sent back for new trials and only questionably could be retried.
And I’d like to lodged with the Court in original and ten copies of a memorandum which I provided petitioners here a man-hour cost study regarding the Chimel decision.
And that report is very significant in indicating that annually the Chimel decision will cost the Los Angeles Police Department alone an additional 86,000 man hours and the monetary cost disclosed to half a million dollars and that is just for police officers, not the clerical help and the equipment that this is --
Justice Thurgood Marshall: Is there anything there by what the cost would be to get search warrants in Los Angeles County?
Mr. Ronald M. George: This is what I am referring to Justice White.
Justice Thurgood Marshall: And don’t you tell how many people you have to had in the building in --
Mr. Ronald M. George: To get search warrants, it’s a very involved process.
Justice Thurgood Marshall: To prepare search warrants.
Mr. Ronald M. George: That is --
Justice Thurgood Marshall: For its limited test.
Mr. Ronald M. George: To obtain search warrants.
That’s all that I’m talking about here, to draw of affidavits.
I see my time is up.
Could I prevail upon the Court for an additional minute?
Chief Justice Warren E. Burger: Go ahead.
Mr. Ronald M. George: And this is just the cost to police officers, not clerical personnel.
Now, this I believe averages out to about 30 extra police officers for the City of Los Angeles a year because of this.
And consequently, one can imagine the retroactive application of this.
And what I would like to note in conclusion as far as the impact of this decision is that this strikes at the most sensitive nature of police work.
The type of property crime burglary is particularly where the rate of recovery is lowest.
It might be of interest to Your Honors to note that less than 10% of stolen property is recovered.
Now, when the time that it takes to obtain a search warrant and each case which is several hours is multiplied by the hundreds of situations everyday that occur necessitating -- one under the Chimel decision.
One can see the impact of this decision.
One can easily point to one case or the other case and say a warrant could have been obtained here.
But if one looks at the overall impact, it’s quite apparent with 2 million burglaries being committed annually in this country, 265,000 of them in California that there is indeed a real problem of just not getting snowed under by police work.
So for these reasons, we would submit very, very strongly that the date of prospectivity should be adopted that all searches conducted previous to the date of Chimel not be governed by the rule of that decision and we urge that the search and seizure in this case was lawful in all respects.
Chief Justice Warren E. Burger: Thank you, the document you referred to, will be considered as lodged with the Court.
The Court will pass on, on it in due time.
Rebuttal of Joseph Amato
Mr. Joseph Amato: Just briefly, Your Honor.
I’d like to just hit on four points Your Honor very briefly.
The first one insofar as the Fifth Amendment was concerned.
Of course the problem there, it is in involvement with the Fourth Amendment in many respects.
The reason it wasn’t specifically brought out on appeals because it wasn’t objected to at the trial.
I have nowhere indicated any time during the Court of Appeals, Supreme Court or petition that this wasn’t a consideration.
It was only not mentioned because the trial attorney at that time didn’t object the most particular grounds.
Justice William J. Brennan: Could it have been raised?
Is there a rule in California that says you may not bring him before the Court, something that wasn’t raised in the court below?
Mr. Joseph Amato: Well, that’s correct Your Honor.
There is a court rule that you cannot.
I could have brought it in, in effect of counsel.
However, he -- I didn’t think was --
Justice William J. Brennan: Did you brief it, even to the extent you did here in the California Supreme Court?
Mr. Joseph Amato: Yes, Your Honor.
As far as the briefing, no Your Honor, I did not.
Justice William J. Brennan: You did not brief it.
You briefed Boyd here?
Mr. Joseph Amato: That’s correct.
Justice William J. Brennan: But you did not in the California Court?
Mr. Joseph Amato: That’s correct I did not.
The second basis now is Bader’s consent.
Now insofar as consent, the petitioner contend strongly that there was no consent given.
I think the words in the transcript are in a quote that he could go to petitioner’s apartment.
I think that’s a far cry from giving consent to search in to drawers in the bedroom.
The third point that I’d like to add is on --
Chief Justice Warren E. Burger: What have it in -- right on that question, what do you suppose an officer would think he was being authorized to do if Mr. Bader said you may go to my apartment.
Mr. Joseph Amato: Well, I would think Your Honor --
Chief Justice Warren E. Burger: Just look at the apartment?
Mr. Joseph Amato: -- is to see Mr. Hill and inquire Mr. Hill of what the circumstances were.
And if he doesn’t say you can search my drawers or search my places, as I was indicating go to the apartment and meet Mr. Hill at that point.
Chief Justice Warren E. Burger: Suppose instead of Mr. Hill or Mr. Miller, anybody else being around, there was a cleaning lady there at that day and they said Mr. Bader has told us we could come to the apartment.
Mr. Joseph Amato: I would still --
Chief Justice Warren E. Burger: And so she let them in.
Mr. Joseph Amato: I would still that Your Honor the same thing applies.
I think for -- on two counts.
One is he wasn’t given expressed permission to search and secondly, there is another serious question to whether another person can give up the constitutional privacy in that party.
Now insofar as the amicus curiae brief in behalf of the Attorney General called that on the police chiefs across the country, I too believe that this is a good case that guidelines could be set as to what the police can or cannot do.
But it still doesn’t take even those examples really go back to this particular case.
The examples there are pretty extreme and yet that the Attorney General points out in Colorado.
And yet in all those cases that he points out, those extreme examples where certainly there is a necessity for guidelines.
The Attorney General was able to get convictions in all those matters expressed even though they had to go and get search warrant.
In this case, I think it isn’t that close of an issue.
Now, insofar as retroactivity and counsels indicated that 30 officers in Los Angeles will be required if it is made retroactive, the Chimel decision.
Justice Potter Stewart: I’d understood him to say that 30 officers, additional officers in Los Angeles will be required just to carry out the Chimel decision.
I don’t -- I think that argument --
Mr. Joseph Amato: That’s correct Your Honor, that’s what I was alluding to proper -- improperly stating.
The point that I would like to make is that we draw some half medium and draw from it for maybe 30 officers to one officer on direct appeal.
Those cases certainly outnumber, at least from a 30 to one basis.
Justice Potter Stewart: A retroactivity wouldn’t require any more officers now.
You can’t un-ring a bell.
Your can’t -- if this was an unconstitutional search, there is no way to constitutionalize it now, you can’t go back and get a search warrant and go on --
Mr. Joseph Amato: Then I asked, what is the purpose of the 30 officers?
What difference does that basically make? In other words, the inference that I got, I didn’t quite understand it.
If you need 30 officers on something it’s already passed, you don’t need any officers.
What differences it make?
I thought the point he was trying to bring out was the fact that if you make it completely retroactive, you’re going to have to accumulate a lot of this evidence based on past cases.
And now, I’m saying that if you have to get additional manpower that if you make it only on direct appeals, certainly a 30:1 ratio isn’t unreasonable in light of all the years are involved prior to Chimel versus the cases on direct appeal.
And I’d like to conclude with this last point that I wasn’t going to mention until counsel mentioned about the numbers of crime and so forth.
I don’t stand up here for a crime, I hope no attorney or citizen does.
But certainly numbers can be misleading and I think earlier in this case I pointed that out where the gravity of this claim was elevated to kidnapping where in fact, Caryl Chessman died under the same Penal Code Section.
And this Court knows the facts of this case and certainly he was subjected to the death penalty also and yet he would have been totally unreasonable in this case just as we indicate it.
It’s been totally unreasonable to go into the bedroom and to get that diary and there’s no indication that this particular diary wasn’t a book.
The only evidence and if it wasn’t a book, it should have been brought out by the prosecution.
The only evidence is that there were two pages of a diary.
No weapons could have been or supposedly no weapons could have been within those two pages.
There is no evidence indicate that it was anything different and an ordinary two sheets of paper.
I would submit strongly, Your Honor, in the interest really of justice in this particular case that this case -- that this Court will reverse the Supreme Court and affirm the Court of Appeal.
Chief Justice Warren E. Burger: Thank you.
The case is submitted.
Mr. Joseph Amato: Thank you.
Chief Justice Warren E. Burger: Counsel you were appointed to act in this case and acted at our request in our appointment.
On behalf of the Court, I want to thank you for your assistance not only to the petitioner your client but your assistance to the Court.
Mr. Joseph Amato: Thank you very much.