VALE v. LOUISIANA

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Argument of Louise Korns

Chief Justice Warren E. Burger: Arguments in Number 727, Vale against Louisiana.

Mrs. Korns, you may proceed whenever you're ready.

Ms Louise Korns: Mr. Chief Justice and may it please the Court.

Just to briefly recap the factual situation here, three New Orleans police officers went to 1826 O. St. in New Orleans bearing two arrest warrants for Donald Vale involving prior narcotic crimes.

They wanted to be sure that the accused is at this address before serving these warrants.

They knew that Mrs. Vale, his mother and his brother Donald live there and they want to elate Donald have him take off again.

So, they parked their car about half a block from the house and watched it and they saw about 15 minutes later they saw a transaction take place between a man, Saucier who approached the house in a car and Donald Vale who came out of the house and apparently sold narcotics to this man in the car.

So, they approached the car, arrested Donald Vale and Saucier.

Donald Vale, as he got close to go back in his house arrest them for possession of narcotics.

First, meanwhile they had seen as they approached, they had seen the man in the car put something in his mouth and swallow it which to experienced narcotics officers like this just meant one thing that he was swallowing narcotics.

So, after they arrested the man in the car and Donald Vale, they frisked and briefly found nothing on them, no weapons, no narcotics.

And then the police officers the record shows told Donald Vale that they want to go in and search his house.

The door to which he had left open in coming out to make this sale to find the narcotics that they were sure were the source of this supply that he had passed on to Saucier.

Thereupon, they entered the house.

Shortly thereafter within minutes thereafter Mrs. Vale and Donald's brother James entered the house and the police officers informed them also they were going to make the search.

And the within five or ten minutes in the back bedroom which appear to be a man's bedroom, the police officers testified they found the heroin and Dilaudid they were seeking in the coat, several coats hanging in a closed locker.

The State of Louisiana believes that following the legal arrest which clearly took place here in front of the house, the police officers were entitled to make an incidental search.

Justice Potter Stewart: Was the arrest legal because of the capias that the officers had or was it legal because of what they have seen that apparently Donald Vale?

Ms Louise Korns: What they had seen Mr. Justice Stewart.

We don’t rely at all on those capiases there's no -- the State of Louisiana feels that if they fade out the picture as far as this search went.

They only served is adding probable cause for the warrantless arrest because they were for prying narcotics offenses which had occurred a couple of weeks before and more over.

At least one of these three offices had been involved, the record shows in those prior arrest and the record also shows that, at least one or more of these officers had not only arrested Donald Vale either been a connect with these prior narcotics arrest that were familiar with him in his narcotics transactions, knew Saucier the man to whom he was apparently selling, knew that this house was lived in by Mrs. Vale, Donald’s mother and his brother James.

The record shows that they knew that.

So the State of Louisiana is not relying at all on these capiases for this arrest, but only on this warrantless arrest which took place before the house.

Justice Potter Stewart: I see.

Thank you.

Ms Louise Korns: Now, the evidence shows that the police officers didn’t know who was in that house when they arrested Donald and Saucier in front.

It shows that officers were very concerned with the idea that at this very moment either Mrs. Vale or brother James or Donald’s girlfriend who traveled around with him to various addresses was right at that very time getting either hiding the narcotics, taking him out the backdoor, disposing of them in some way.

So, as Louisiana sees it.

There was the dilemma faced by these officers and they either had to seize this evidence right now or not at all because I know yesterday the Court was opposing the problem of whether there were any alternatives to an immediate warrantless search and as a practical matter it’s Louisiana’s position that there were no practical alternatives because of the time involved in getting a warrant and the fact that -- One thing is clear, not knowing whether anyone was in the house or not, the officers had to enter the house and search it fairly thoroughly to find out even if whether someone else was in the house because confederates often hide in closets and under beds as this Court knows and it was only about fairly thorough search of the house that the officers could even determine that there was no one in the house to dispose --

Justice Potter Stewart: Confederates generally don’t hide in somebody’s coat pocket?

Ms Louise Korns: No that’s perfectly true, that’s right.

But they had to make a search of the house in fair detail to be sure that no one was hiding in the house, in closets, in rooms, and so forth and under beds.

Chief Justice Warren E. Burger: Well, do you think they were entitled of that point to search for firearms to see whether they were exposed to any danger from occupants of the house?

Ms Louise Korns: Well, actually I think the question of firearms I guess is always lurking in the background but with what narcotics addicts generally, I don’t think weapons are generally involved in these crimes.

I think mostly it’s the police officers they're concerned and the record here shows with getting to the evidence before the people involved with the narcotics can get rid of it just like in this case, Saucier got rid of the narcotics which Vale had just sold in by swallowing.

And the officers, the record here show that they rushed first to the bathroom to listen for the sound of running water when they approached, they testified that and looked around in the toilet bowl and so forth because looked in the basin and in any drain like that where narcotics could be disposed off.

So, really I think -- I don’t think I will be frank and say no I don’t think the officers were afraid that they’d be shot at from the house or anything.

I think their primary and only purpose was to try to get hold of this narcotics which they were convinced Donald Vale, they just seen him sell but because of Saucier swallowing that evidence they -- because that would have been there right there if Saucier didn’t swallow the evidence and arrested Vale for this present narcotics sale and the Saucier had the evidence that would’ve been it.

Justice Hugo L. Black: Have the officers testified they were not looking for weapon?

Ms Louise Korns: Your Honor, it didn’t even come up there is --

Justice Hugo L. Black: They haven’t been testified at all of that?

Ms Louise Korns: And that's right, there is no testimony at all on that subject and really I don’t think it -- you know was a matter in which anyone on either the defense or the accuse were interested at the trial of this case for instance only --

Justice Hugo L. Black: Do you think officers going into a place like that push the others to see and whether or not there might be a gun?

Ms Louise Korns: Well, sure I mean I think they -- I don’t think there is concerned no with guns for narcotics addicts as they also for say burglary suspects are people who commit crimes of violence.

There's no doubt about it when they -- when they frisked down Vale and Saucier.

When they first arrested them, they -- I think the record will show maybe that they were frisking for possibility of weapons or narcotics, but they did testify that they wanted to go in that house because they were sure that that's where the hoard of narcotics were.

Justice Potter Stewart: As -- well, when they were in the house as I understand it except for this appellate here when they just arrested there was nobody in the house?

Ms Louise Korns: That’s right, the thing is that they didn’t know that though Mr. Justice Stewart until they had gone all through the house to be sure because they knew that Mrs. Vale and James live there and then of course when Mrs. Vale and James showed up within about five minutes after the officers got in the house has but before they’d found the narcotics.

Then, the only other place they could’ve been hiding in there was Donald’s girlfriend, but I think by that time they’d run through the house enough to be sure that nobody was in the house.

But they didn’t know this until they got in.

Justice Potter Stewart: And the fact is there was nobody in the house?

Ms Louise Korns: The fact is there was nobody, but they have no way of knowing this.

And as a matter of fact as I say the record shows that they positively knew that somebody could be there.

Now, the State of Louisiana just wants to oppose to this Court the practical difficulties involved if the police were going to get a warrant to search for this narcotic evidence.

As I say, they first had to get into the house to be sure no one was hiding in there or would’ve done no good to put a cord in around the house without first finding out there was nobody in it.

Having found out that the only two people on it were James and Mrs. Vale then they would’ve had to call in other police officers to keep these people under surveillance.

Their movements under complete surveillance are to keep -- take them out of the house during the time in which they took them to get a search warrant.

And in owing to perish at least, search warrant issued by criminal district court judges and at least one of these arresting officers because only they three knew the facts would’ve had to go back to the police bureau and typed up the affidavit.

And you have to type up an affidavit for a search warrant in about six duplicates.

Police officers don’t reduce probable cause to writing with the greatest to speed.

It’s been my experience these men often have all kind of reasons why they do things.

They're not the most articulate people in the world particularly when they have to write down and often in the past they used to put down too little but now because Court decisions throw out worst they put down much too much.

They put down everything they’ve seen and gone and so forth and so it runs on for pages.

Then, they’ve got to find the judge to study this warrant and find out whether it’s stays probable cause and if he’s in his court or in his chambers and busy they have to wait, and then present it to him and if he’s going home then they have to track him down and find him and I think at the best with everything going in your favor takes at least three hours to process a search warrant.

And often it takes a whole day before you can get the whole thing typed up and the judge satisfied and signed and back and served the copies.

You have to give one to another clerk’s office so they’ll know what property they’re going to seize and then make returns and so forth.

So really you know these the officers, the record here shows that the officers approached Donald Vale’s house around noon with luck they could very well have been back with the search warrant later to that afternoon.

But if any little interference had come up for some reason or another they might not have been back until the next day and unless they had kept these people under close surveillance, they would’ve been any narcotics evidence left in that house when they got back.

And also --

Justice Potter Stewart: How do you -- how can you say that if after they had seen this transaction they just simply going down and get a search warrant, they hadn't been seen by Vale or anybody else at that time?

Ms Louise Korns: Well, in the first place they didn’t know that they hadn't been seen by the Vales and actually probably knew there were people in the house watching everything they did or they might very well have been neighbors watching what they did.

We don’t know about that but these things get around very quickly among people of this type.

Not only that Mrs. Vale and James came back to the house within minutes after the police officers got in to house.

So therefore, but they might’ve very well have gotten back to the house seeing the police officers put Saucier and Donald into the cars.

I mean, this --

Justice Potter Stewart: What sort of a neighborhood was this in the New Orleans?

Residential or business or commercial, what is it?

Ms Louise Korns: Yes, Your Honor.

A residential small sort of shotgun house is close to each other.

Justice Thurgood Marshall: What -- there were three officers?

Ms Louise Korns: Yes.

Justice Thurgood Marshall: And there were two entrances to the house; one front door and one back door?

Ms Louise Korns: There wasn’t backdoor entrance leading into the yard.

This is clear because the record shows that the officer -- one of the officers run out the backdoor and looked in the yard and see if there was any disposable evidence.

Justice Thurgood Marshall: So, once they have found that there was nobody in the house, no person it would only take a two policemen to make sure that nobody disturbed the evidence, would they?

Ms Louise Korns: That’s right but Mr. Justice --

Justice Thurgood Marshall: So we take one policeman with the two prisoners?

Ms Louise Korns: Couldn’t have done that Mr. Justice Marshall.

One policeman couldn’t drive two prisoners and that would be bad security.

You have to at least to have two police officers in the car with two prisoners.

One police officer is so to drive and one to watch the prisoners.

Justice Thurgood Marshall: Well, they could’ve left the prisoners there?

Ms Louise Korns: There's no doubt about it they could --

Justice Thurgood Marshall: Doesn’t the record show that two police officers went inside and one stayed out with the prisoners?

Ms Louise Korns: No, I don’t believe sir.

I think the record shows that all of them went in.

All the police officers and Donald Vale and Saucier and that then Mrs. Vale and James arrived.

Justice Thurgood Marshall: Well, could they have gotten one more policeman in New Orleans to watch the backdoor while one guards the front door?

Ms Louise Korns: There's no doubt about it.

There’s no doubt about they couldn’t.

Justice Thurgood Marshall: And the evidence could not have been destroyed.

Ms Louise Korns: No doubt about it.

The Louisiana did say they could’ve -- position as this would have taken a long time and it would have interfered with the liberty of Mrs. Vale and James Vale inordinately?

And supposing in the end they haven’t found any?

Justice Thurgood Marshall: Did the arrest take place?

Ms Louise Korns: They only arrested him after they found the narcotic evidence.

Justice Thurgood Marshall: Well, that’s interfering with it they --

Unknown Speaker: (Inaudible)

Ms Louise Korns: No, well they arrested him for possession of narcotics Mr. Justice Marshall after they had searched the house and found the narcotics in his bedroom as his mother said.

But we’re talking about the preliminary situation when the officers had just arrested Donald and Saucier right outside the house engaged in a narcotic transaction and then the whole issue they had to decide on the spur of the moment was whether to go in that house and look for those narcotics.

They didn’t know whether anyone was in the house or not.

That’s the situation we have right there.

They have to go in the house to see if anyone was there.

Now, there's no doubt it we can see that they could’ve gone in and look around and seen no one was there then they could’ve called other police, placed guards on the house and gone out and got a warrant.

This would’ve take in anywhere from three hours to the next day.

We concede that.

Justice Byron R. White: Well, you would be making the same argument wouldn’t you if they had arrested him six or eight blocks away on his way to his house?

Say, he was going from work to home or they just intercepted him on the street and they thought there was probable cause that he had narcotics in his house.

Let's assume they did have probable cause, do you think he had narcotics in his house, you would be making the same argument that you should not have to wait for a warrant in order to search that goes likely places where narcotics might be located?

Ms Louise Korns: No, Mr. Justice White here of course we’re relying on the settled decisions of this Court that following a valid arrest the police can make a search incident to that arrest at the place of the arrest.

And the only issue here is whether the place was extended a little too far as we said because Donald Vale was arrested at the front door of his house.

Justice Byron R. White: Well, how do you distinguish Shipley?

Ms Louise Korns: Shipley, we distinguish very clearly.

In that -- in Shipley for instance the only similarity between this case and Shipley is that both arrests took place outside the house but unlike this case in Shipley, the police officers weren’t watching and didn’t see Shipley going in and out of his house committing a crime.

Shipley had committed that crime several days before and they were just at his house to arrest him for this crime they’ve heard about.

Secondly, Shipley didn’t involve narcotics --

Justice Byron R. White: Are you saying that in Shipley apparently they didn’t have -- even have probable cause to search that house, is that your point?

Ms Louise Korns: Well, right.

The thing is that I see it Shipley then hour of that they could’ve got a search warrant and Shipley as this Court pointed out they stake -- they first went into the house and Shipley and they already eluded Shipley’s associates to the fact that they went search because his wife was in there.

They already knew then they went back out and stake to that.

Now during the stakeout they could’ve which went on for several hours, they certainly could’ve gotten a warrant.

It wasn’t the emergency situation which here this emergency situation just developed in front of the officers as they went to serve these two old alias capiases.

They were presented with this emergency situation completely unforeseen, the sale took place in front of there eyes.

Then what they were going to do about trying to get that evidence which they knew was in that house.

It all happened just like that.

Chief Justice Warren E. Burger: Mr. Korns, let me go back to the hypothetical that Mr. Justice White put to you.

That is if he encountered Vale six blocks away from the house.

In that circumstance, would he have any basis for thinking the house was the source of supply having been seen him come from the house to make the sale?

Ms Louise Korns: Not at all, not only that but the house wouldn’t be the place of the arrest here it’s true that the arrest took place at the front steps of the house but remember this, Donald Vale had gone into the house when Saucier had first given him let him know he want a narcotics had come out of the house, leaving the door open, looking up and down.

When Vale saw the police officers approached his house and arrest him right there at the car, he turned around and started toward the front door and as a matter of fact if the police officer had been aware of all the decisions which police officers aren’t.

If I've been there I would just wait that the minute let Donald walk back into his house and then when a few steps he would’ve been inside the house and you say, alright -- alright, although under Chimel I guess you would’ve had to lame walk all the way back to the closest.

But anyway, nevertheless, it was so clearly a question of the arrest taking place at the scene you know of the search talking place at the scene of the crime immediately contemporaneous with the crime.

That we think these are the facts at which governed this case and would clearly distinguish an arrest which took place on the street for instance.

There, the place of the arrest would be the street and there the officers would only look around the feet of the accused for instance.

Now, the State of Louisiana feels that this emergency situation is so similar to the one that existed to Schmerber for instance or in Warden versus Hayden and we can't see the difference.

Of course in Schmerber it involved a blood sample and in Warden versus Hayden it involved burglary -- fruits of the burglary.

But nevertheless, the basic situation is the same.

The police officers are faced with a situation in which they’ve got to act quickly or the evidence they are going to seize is not going to be there anymore.

They're faced with this situation and narcotic evidence disappears just as rapidly as does alcohol in the blood.

Not only that, I’d like to point out to this Court that if police officers can't make searches for narcotics such as existed in the present case, they can't really ever seize this evidence because how would they able to get a search warrant for instance although -- no, let's say the police officer is like in the present case knew that Donald Vale was operating from four or five different addresses.

Now, supposing they had gone to -- had made out a search warrant about six of them, four or five addresses, one for his car, one for his person.

All simultaneous and taking him to a criminal district court judge all residing probable cause to believe that this particular warrant were discovered would turn out narcotics.

The judges signed them all then he had gone around and executed all these warrants and one of them that had found narcotics.

It seems to me that the accused, all he had to do is go and say, how could you have probable cause for this one warrant when you sign -- when you got that five others and you really didn’t know where it was did you and no you didn’t.

And how do you know where the narcotic evidence is in the case like this where this guy -- these people are very smart and they jump around and they change where they keep the narcotic hoard on the person and the car in different place.

So, how would the police ever get?

Chief Justice Warren E. Burger: Is this the case in which the record shows that they have habitually used three or four connecting houses?

Ms Louise Korns: No, not connecting houses Your Honor.

Donald Vale, this was his mother and brother’s house.

He had an apartment of his own, he sometimes stays in his girlfriend’s apartment or friend’s apartment operated of an automobile but he’s an intelligent man enough to know that if he doesn’t keep moving and keep his narcotic stock quickly shifting around then it’s going to get seized.

Now, are there any questions of Court would like to ask?

Chief Justice Warren E. Burger: I think none Mrs. Korns.

Ms Louise Korns: Thank you, Your Honors.

Chief Justice Warren E. Burger: Thank you.

Mr. Deutsch.

Argument of Eberhard P. Deutsch

Mr. Eberhard P. Deutsch: Mr. Chief Justice three or four observations in connection perhaps primarily with the discussion yesterday.

I did make inquiry Mr. Justice White is to how long it would take to get a search warrant because I have no idea of my own.

I was told that the ordinary practice of a situation of that sort is for one of the officers to telephone that they're coming down, give the appropriate information, and get the necessary papers ready while they were on their way back within the day time while courts are opened.

They -- it does take only about 30 minutes to prepare the necessary papers and add to that the time going in and coming back out should not be more than one hour for whatever that’s worth.

Chief Justice Warren E. Burger: I think you're posing the optimum circumstances --

Mr. Eberhard P. Deutsch: In the day time, yes sir.

Chief Justice Warren E. Burger: Mr. Deutsch, the optimum on a very favorable basis.

Mr. Eberhard P. Deutsch: There's no question about that that is the optimum situation.

Chief Justice Warren E. Burger: That would be perfect operations if you had an assistant district attorney there to assist with the preparation of that application to be sure that it met the standards laid down by this Court which are preferred to (Voice Overlap)?

Mr. Eberhard P. Deutsch: I'm not at all certain Mr. Chief Justice that a search warrant would be issued in such a case on the type of evidence they had.

Now, the statement is made -- has been made that there was a narcotics transaction which have taken place.

Actually no one saw that, they saw what they thought was a narcotics transaction.

There was --

Chief Justice Warren E. Burger: Isn’t that the essence of probable cause, it’s more probable than not that people in these circumstances swallowing something in the presence of the officer were swallowing something incriminating?

Mr. Eberhard P. Deutsch: I'm sure that on that alone, they would never get a conviction at least I assume that from reading the newspapers.

Chief Justice Warren E. Burger: No, we’re just talking now about probable warrant.

Mr. Eberhard P. Deutsch: About probable cause and I plead I don’t dispute that.

I don’t dispute the probable cause.

I made the statement that he has that I didn’t know never seen a search warrant so I couldn’t very well speak about it.

In the course of checking on that I find that with one exception in the history of this Court at least to modern history no writ of certiorari has ever been issued out to this Court and no one has ever seen one where used to using this terms without really realizing what they are.

I assume the judge to this Court had.

I was asked yesterday too about the question as to why a hearing should be granted in this case and it should not have been handled summarily.

I assume that was because Mr. Justice Black and Mr. Justice White while concurring in the grant of certiorari in the two prior case has decided in June of last year said that they dissented from a summary dismissed -- summary reversal of those cases without a hearing.

And that under those circumstances it was thought best to grant a hearing in one case for the trial.

Now, we --

Justice Byron R. White: The two cases you were referring whether New Jersey case and the California case, I assume?

Mr. Eberhard P. Deutsch: Yes sir, Von Cleef and Shipley, that’s right.

Now, we rely of course on Agnello, James and Shipley in which and the statement finally made in Shipley that no warrant has ever been -- had no search has ever been held to be valid when the arrest was made outside the premises in which the search took place.

We submit the case.

Chief Justice Warren E. Burger: Thank you Mr. Deutsch. Mr. Deutsch, you acted at the request of the Court by appointment of the Court, we thank you for your assistance to us and of course assistance to your client.

Mr. Eberhard P. Deutsch: I'm very grateful for the privilege Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you Mrs. Korns.

The case is submitted.

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Argument of Eberhard P. Deutsch

Chief Justice Warren E. Burger: Number 727, Vale against Louisiana.

Mr. Eberhard P. Deutsch: Mr. Chief Justice --

Chief Justice Warren E. Burger: Mr. Deutsch, you may proceed whenever you're ready.

I'm sure you could have proceeded in either case.

Justice William O. Douglas: Would you like to comment on that prior case?

Mr. Eberhard P. Deutsch: Pardon?[Laughter]

It's a good fortune one rarely has.

Mr. Chief Justice and may it please the Court.

The appellant in this case have been charged in a proceeding prior to the one here at issue where the violation of the state narcotics law.

In the course of that proceeding, his bond was raised on the prior charge and three policemen with capiases for his arrest in connection with the raised bond proceeded to what was believed to be his home and they did what they called stick themselves out and hid themselves near the home to watch it for some reason.

They said they want to be sure he was home before they arrested him, I didn't quite understand.

In any event, while they were waiting in hiding an automobile drove up in front of the appellant's home and it was driven by a man known to be a narcotics addict.

The driver sounded his horn, appellant came out of the house, talked to the driver from the other side, the passenger side of the automobile, returned to his home, came out again, again talked to the driver and then the police made their presence known, surrounded the automobile, arrested the driver, he hastily put something into his mouth and presumably swallowed it.

The police assumed that what they called a transaction was taking place and the appellant himself turned and started to walk back into his home, they stopped him and arrested him.

There are some variations in the testimony about how far he was from the door of his home.

And I suppose, at one point I think it said he was at the front steps.

At another, he was at the side of the car anywhere from 15 to 30 feet away.

In any event, he was not inside the house when arrested and I think the best way to put it was that he was on the sidewalk in front of his home.

Justice Potter Stewart: I think there were some indications the door was opened.

Mr. Eberhard P. Deutsch: The door was presumably opened, yes.

Justice Potter Stewart: And that he was -- had come close enough so that he had opened the door, if that was right?

Mr. Eberhard P. Deutsch: No, I don't think that's him.

Justice Potter Stewart: I think that's a misunderstanding.

Mr. Eberhard P. Deutsch: Yes, I think he had left it open when he came out.

Justice Potter Stewart: I see.

Mr. Eberhard P. Deutsch: I'm not positive of that.

In any event, they were all arrested.

Now, the police have no search warrant, they entered the home over the protest to the appellant.

Advised him they were going to search the home for narcotics and advised him of his rights presumably in the usual fashion.

A few minutes later, his mother and brother came home and they were also told that the house was to be searched and protested, at least the mother protested and they proceeded with the search.

They also arrested the brother and in the course of the search in a closed locker in a bedroom hidden in clothing which the appellant admitted was his, they found narcotics and then the course of further search and perhaps his -- even helping them with the search is not entirely clear they found some narcotics paraphernalia in the bathroom.

Justice Potter Stewart: The record show how many rooms this house had?

Mr. Eberhard P. Deutsch: I believe it had three rooms perhaps --

Justice Potter Stewart: Three downstairs room?

Mr. Eberhard P. Deutsch: -- and there's no kitchen and a bathroom.

Justice Potter Stewart: Three downstairs room?

Mr. Eberhard P. Deutsch: All one -- one floor.

Justice Potter Stewart: All one floor.

And since I've already interrupted you, they of course did not have a search warrant?

Mr. Eberhard P. Deutsch: Had none whatever.

Justice Potter Stewart: They had an arrest warrant, did they or capias?

Mr. Eberhard P. Deutsch: They had the arrest warrants but not for this offense.

They had arrest warrants under a prior charge on which they stick themselves up presumably to find him.

They had no arrest warrant for this particular offense.

Justice Potter Stewart: But you were -- we have consumed I guess in this case that this was a lawful arrest, can we?

Mr. Eberhard P. Deutsch: I think it would have to assume that although it's very difficult to say what they came up there to make a lawful arrest with arrest warrant.

Justice Potter Stewart: Right.

Mr. Eberhard P. Deutsch: Instead of doing that, they hid themselves out and watched what they presumed what they called a transaction taking place.

Then, they went into the house and on the search found the narcotics following which they charged him with possession of narcotics.

Chief Justice Warren E. Burger: Do you begin the complain before they began the search?

Mr. Eberhard P. Deutsch: No sir, well (Voice Overlap) as a matter of fact this Court has confined me to the matter of search and seizure.

So that they charged --

Justice Byron R. White: But in considering -- in considering the matters search and seizure it's important to know whether you -- whether we can assume that proceed on a hypothesis that this was a lawful arrest?

Mr. Eberhard P. Deutsch: I would have to assume that.

Justice Byron R. White: Because I suppose that a search incident to an unlawful arrest can never be a reasonable search based on theoretical.

Mr. Eberhard P. Deutsch: Well, I so understand the law exactly.

Justice Byron R. White: Whatever, yet the scope of the search.

Mr. Eberhard P. Deutsch: I would say this was a lawful arrest on the basis of the offense which they believed to have seen taking place and that thereafter they found the evidence on the basis of which they made the charge on which they had arrested him.

Now, that brought us -- I suppose as I come to it on the record which is all that I have under all service.

Now, he had counsel appointed for him.

He moved to suppress this evidence in a separate sort of proceeding which I understand is typical in this type of case.

He also objected according to the record to the introduction of the evidence on the ground that it was obtained by an unconstitutional search and seizure.

He pleaded the Fourth and Fourteenth Amendment.

The case was appealed to the Supreme Court of the state and they cited the statute, the arrest statute which permits the officers to take from the person arrested all weapons and incriminating articles which he may have about his person.

They cited that statute in justification of the search and held that there was no violation of the cited constitutional provisions.

I think that is a fair statement of the fact for the purposes of this case.

Chief Justice Warren E. Burger: Do you see a difference in language of that statute as between saying about his person and on his person?

Mr. Eberhard P. Deutsch: I don't know, sir.

Chief Justice Warren E. Burger: If it means the same thing?

Mr. Eberhard P. Deutsch: Oh!

I think from practical purposes.

It's --

Chief Justice Warren E. Burger: It doesn't mean about in the sense of lying about?

Mr. Eberhard P. Deutsch: Perhaps, but I don't think that's involved in this situation.

In any event, this says in so many words from the person arrested all weapons at which he may have about his person.

Now, as far as I'm concerned that means on his person, I may be stretching it.

I think making a difference on a word of that sort.

In any event, is going too far in statutory transaction.

Chief Justice Warren E. Burger: And I wondered if you were emphasizing that one?

Mr. Eberhard P. Deutsch: I do not take that position.

Now, --

Justice Thurgood Marshall: Mr. Deutsch, did he cover the point as to whose house this was?

Mr. Eberhard P. Deutsch: I don't think that's really important.

He admitted the clothing was his.

His mother denied it was his home.

Justice Thurgood Marshall: See, that's what I thought.

Mr. Eberhard P. Deutsch: And they had arrested him at other premises on Pereira case but I can't quite see the relevance of that issue which did arise in the trial court.

And the trial judge only said that he knew the cases of this Court where the other way but he didn't propose to follow (Voice Overlap) the law.--

Justice Thurgood Marshall: I was thinking about the relevance.

I just want to know that it's just unclear.

Mr. Eberhard P. Deutsch: I don't think it's really relevant.

He admitted the clothing was his.

He admitted the narcotics were taken from his clothing.

He never disputed that and while his mother said he doesn't live here, it's his brother who lives here and they were both arrested, both tried.

I don't think that that's really at issue at this point.

Now, some 200 years ago or more, William Pitt, the Elder in the House of Commons or the Earl of Chatham said, “The poorest man may in his cottage bid defiance to all the forces of the Crown.

It may be frail roof, may leak, the wind may blow through it, storm and the rain may enter, but the King of England may not enter all of his forces they are not cross the threshold.”

That's the -- I think the fundamental, the beginning of the principle which we not have embodied in the Fourth Amendment.

And about that same era, the Lord Halifax was what was called in England one of the secretaries of state issued a general warrant for the arrest of the publishers of the -- seditious libel stated to have appeared in the North Briton.

On moving about the so-called messengers, I suppose equivalent to constables learned that it was John Wilkes who was the publisher of the libel and under that same general warrant namely him or any one else Wilkes was arrested, his house was ransacked, his papers were seized.

They called the blacksmiths that broke the locks and so on and that he sued the messengers and others and Lord Halifax for libel or a rather for the unlawful issuance of unlawful writ and the seizure, I should say.

He recovered 1000 pounds against Lord Halifax, a lesser amounts against the others in a famous opinion written at that time by Lord Chief Justice Pratt and followed very shortly within the same few years, same decade by the famous case of John Entick who had been arrested and his papers all seized under a somewhat similar warrant except that it main him.

It was seditious libel in the British Freeholder and other publication.

And in that case, Lord Camden held that if this practice which had originated in the Star Chamber should be sanctioned, “the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection whenever the secretary of state shall see fit to charge or even suspect a person.

And this power so assumed there's an execution on all of party's papers, his house, his rifle; his most valuable papers are taken out and so on.

And then may in his constitutional history of England that antique cases are uncovering perhaps 100 pages of fine print.

It's a long-winded thing but may in this constitutional history of England sums it up that with the unanimous concurrence of Lord Mansfield and the other judges of the court, this eminent magistrate now finally condemned this dangerous and unconstitutional practice.

Now very interestingly, just before those two famous English cases arose, a situation arose in the Massachusetts Bay Colony.

The British ministry set orders to issue general warrants which they were called writs of assistance to search for merchandise on which the duties imposed by parliament and not been paid.

There were no names, there were no places, they were simply suppose to go out and it gave them the right presumably to go into any warehouse shop or other place to search for these payments.

James Otis was the Attorney General of the Colony of Massachusetts under crown appointment at that time.

He refused to support the writs, resigned his office, took employment on the other side without fee and fought the issuance of these writs from the Superior Court of Massachusetts, and the case was reported actually by John Adams whose notes of the case are published.

He said in the first instance that the court expressed great doubts of the legality of such a writ and of the authority of the court to grant it.

And Otis said in his argument, “the writ prayed for in this petition, being general, is illegal.

It is a power that places the liberty of every man in the hands of every petty officer.

”Not more than one instance he went on and he talked about the case in the Star Chamber.

Now, these writs were never issued but at the conclusion of his notes, John Adams said, American independence was then and there born.”

At the end of his argument, I think this is very significant language, Otis said that special writs only may be granted on oath and probable suspicion.

The acts of William at end are confined to this sense that an officer should show probable ground, should take his oath of it, should do this before a magistrate and that such magistrate if he think proper should issue a special warrant to search the place.

That language is almost copied for about 25 years later into the Fourth Amendment, it's perfectly astounding.

Now closely, that language that he used in the argument as reported by John Adams tracks or vice versa the language of the Fourth Amendment to the Constitution of the United States.Now, if this Court --

Chief Justice Warren E. Burger: May I ask you Mr. Mr. Deutsch that relates that to the present situation.

I take it from what you have said that probably would agree that the information which the police end up at the time they went in who made the search and have presented that to the magistrate on oath they could've got a warrant?

Mr. Eberhard P. Deutsch: Yes, sir.

The state makes the contention that this was one of those hot pursuit cases that it would have to be done immediately and if they have tried to go for a warrant while the evidence would've disappeared as its usual and that sort of thing they say, they flashed it down the toilet and all that sort of thing.

And the suspect --

Chief Justice Warren E. Burger: I suppose you agree with those practicalities too?

Mr. Eberhard P. Deutsch: Pardon?

Chief Justice Warren E. Burger: I suppose you'd agree with those practicalities?

Mr. Eberhard P. Deutsch: Well, not in this case but I do it in principle of courts of that type of things.

Chief Justice Warren E. Burger: But you do agree that they could have got a warrant?

Mr. Eberhard P. Deutsch: Oh!

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

I think that there were three officers; two of them could have stayed there while the other one get a warrant.

Chief Justice Warren E. Burger: Now, if they stayed there, could -- they don't replace this man under arrest?

Mr. Eberhard P. Deutsch: Yes, sir.

Chief Justice Warren E. Burger: It placed his brother under arrest a few moments later?

Mr. Eberhard P. Deutsch: And the driver of the car.

Chief Justice Warren E. Burger: Could they then have --

Mr. Eberhard P. Deutsch: The only one there was the mother.

They'd have no trouble watching the place.

Chief Justice Warren E. Burger: They could make them sit on a chair under arrest and wait until the warrant got back?

Mr. Eberhard P. Deutsch: I think they could have.

Chief Justice Warren E. Burger: Without invading their privacy?

Mr. Eberhard P. Deutsch: I think so, either without unlawfully invading their privacy under all the circumstances.

I don't think that would've been unlawful invasion to wait there and watch the --

Chief Justice Warren E. Burger: Well, do you think they were lawfully in the house then?

Mr. Eberhard P. Deutsch: I can't say that, no sir.

No sir, they would -- they might have to wait outside but if he had done it on the basis of a warrant to be obtained, he might have gone in to prevent that, yes sir.

I think lawfully.

Chief Justice Warren E. Burger: Well, then he could not on my -- the hypothesis I gave you, you would not agree with, he could've made the two brothers sit down in chairs and wait the return of the warrant, they'd have to take him out on the porch or outside?

Mr. Eberhard P. Deutsch: I think what he could've done before they entered with the three officers.

Could have sent -- one of them could have gone back for a warrant and the other two could then said, now while we wait for the warrant, we'll come in here we will not conduct to search, we'll simply sit here and make sure that no evidence that might be here in this regard would disappear.

Now, there is another principle involved, there adds a question as to whether you can search just generally in the hope of finding evidence even under a search warrant.

I don't have that situation, I'm not prepared to discuss it but I know there is the question that even with the search warrant they couldn't necessarily have gone into the place and search and said, we hope we are going to find some evidence on which we can convict you on this arrest that we made on a suspicion that you have something hidden in this house which are not allowed to have.

But that's another question.

Chief Justice Warren E. Burger: What -- I thought you conceded they could get a warrant, what could they get a warrant for?

Mr. Eberhard P. Deutsch: Well, that's -- I mean it's another question, it's a hypothetical question.

They go down and say, we saw what we believe to be a transaction.

They would say that the judge presumably under oath in narcotics transaction.

We believe there are narcotics hidden in this house.

We asked for a warrant on basis of which to search for these narcotics under the circumstances.

Now, that would bring up a set of facts that does not exist in here that I can't possibly -- I can't go into all the tangential aspects which may arise under that type of hypothesis.

Chief Justice Warren E. Burger: Part of your case is that they had an alternative namely to get a warrant and I'm exploring your alternative to which (Voice Overlap).

Mr. Eberhard P. Deutsch: Well, I understand that of course is in the picture but the truth of the matter is that it didn't happen and whether they could have done it or not, it is my position that they have no right to do what they did.

Justice Potter Stewart: What if there is someone else in the house then the police -- assume the police might have gotten the warrant.

Assume they had probable cause to get a warrant you could leave the police in the house and do what?

Mr. Eberhard P. Deutsch: Simply sit down and wait for the warrant to come by, to make sure --

Justice Potter Stewart: Well, what if there's another person in the house and the other person is wandering, can you follow that person around all over the house to make sure he doesn't destroy evidence?

Mr. Eberhard P. Deutsch: Of course, I can't quite conceive of that.

I think the police said (Voice Overlap).

Justice Potter Stewart: Well, I would suppose that would be the most normal thing in the world if a confederate or member of the family or something was in the house and the police is waiting there to keep evidence from being destroyed.

I suppose if they are going to achieve that, they would have to follow the person around all over the house.

Mr. Eberhard P. Deutsch: Either that or ask the person to stay there or person said you go to the devil, I won't do it.

I don't know what would happen on that case.

Justice Potter Stewart: Well, where is your privacy going then if you leave the policeman there and he follows you around all over?(Voice Overlap)

Justice Byron R. White: How long does it take to get a warrant in your state?

Mr. Eberhard P. Deutsch: I have no idea but I should (Voice Overlap).

Justice Potter Stewart: Five or six hours or two hours or two days or what?

Mr. Eberhard P. Deutsch: I would imagine maybe the driving from this area would take 15 to 20 minutes to go to a court house and 15-20 minutes, let's say within an hour you can have it, but not certain.

Justice Potter Stewart: Do you mean if you get it typed -- the warrant typed up and affidavit drafted and --

Mr. Eberhard P. Deutsch: You'll have a tremendous advantage over me, sir.

I've never tried a criminal case in my life and I don't know.

I just imagine that it is a practical matter that it take an hour or so.

Now, I could be very well be wrong (Voice Overlap).

Justice Potter Stewart: What time of the day or night?

Mr. Eberhard P. Deutsch: I've never seen a search warrant.

Justice Potter Stewart: Excuse me.

Mr. Eberhard P. Deutsch: What?

Justice Potter Stewart: I didn't mean to interrupt you.

Mr. Eberhard P. Deutsch: No. No.

Justice Potter Stewart: What time of the day or night would this occur?

Mr. Eberhard P. Deutsch: It was in broad day light around noon.

Justice Potter Stewart: On a week day?

Mr. Eberhard P. Deutsch: Oh!

Yes.

As this case has said on the course of its opinion especially the recent ones that the law on this subject has moved from side to side any number of times, Mr. Justice White, I think in the last opinion said five times and there isn't any question about it at in my reading of all of this law.

I think there is a threat of an effort to live up to the constitutional history to which I have referred.

I think it is well summed up in the dissenting opinion of Mr. Justice Murphy in the Harris case which has since been overruled and also in his majority opinion in the Trubiano (ph) case involving the steals.

Of course I am not here to argue the question of retroactivity of the Chimel case decided some later 10 months ago.

I don't think it's necessary to do so.

I know that Mr. Justice Harlan's statement and one of the other cases that it should be applied the case is still subject to direct review by this Court but I have not approached the matter from that point of view.

I might refer for a moment to the case of James versus Louisiana in which a man was arrested two blocks from his house, and this Court held in a unanimous decision per curiam that his home could not be searched under those circumstances without a warrant.

I might mention --

Justice Byron R. White: Do you think this case just turns out to James, its good?

Mr. Eberhard P. Deutsch: No, I'd go further Shipley which is the one you decided on the same day as the Chimel case.

Justice Byron R. White: Do you think they --

Mr. Eberhard P. Deutsch: I just can't see any difference and the only reason I've gone – I'm putting my case on the basis on which I have especially on this oral argument is that I can't understand why you would ask for a hearing.

Justice Byron R. White: And why we didn't do this one summarily too?

Mr. Eberhard P. Deutsch: Well, I go further than that, exactly the same as the Chimel case.

Its open it involves a similar situation except it goes back one step because he wasn't in the home on arrest.

Justice Byron R. White: Well, that -- I mean then you'll have to assume that Chimel was in retroactive but the other case decided with Chimel was one Shipley?

Mr. Eberhard P. Deutsch: Shipley and Van Cleef.

But Shipley is very closely on point because he was arrested that he was getting out of his automobile near his home.

Justice Byron R. White: In Shipley arrest, he simply went outside and that makes it in the Chimel action?

Mr. Eberhard P. Deutsch: No, it was decided on law prior to the Chimel.

Justice Byron R. White: The Chimel law?

Mr. Eberhard P. Deutsch: Chimel or Chimel.

Justice Byron R. White: So, it's in the line of James?

Mr. Eberhard P. Deutsch: Exactly and I just want to mention if I may as a little interesting sidelight that the James case I have talked about James Otis who was the father of the Fourth Amendment.

This man's name was Otis, James.

Now, in Shipley, very frankly when this Court said not referring to the Chimel case at all, the Constitution has never been construed and that statement I confine -- I cannot find it any exception.

I can't find that that's wrong.

By this Court to claim to allow the police in the absence of an emergency to arrest the person outside his home and then take him inside for the purpose of conducting a warrantless search on the contrary it has always been assumed that once house cannot lawfully be search without a search warrant except as an incident to a lawful arrest therein.

Now, that's a per curiam decision.

The statement as I said, the position of the state in this Court at any rate is that this was an effect a hot pursuit, and that this wasn't really a general search that it last to only two or three minutes.

Now, I dispute that as a matter of fact on the record and I'll take only a moment to mention that.

The brief of the state says that approximately a minute or two no more than three minutes -- oh, I'm sorry that's the transcript.

Within minutes says the brief after entering the house, the officers found the heroin and Dilaudid and so on.

Now, what and the reference there is to page 12 of the transcript, the appendix which says, “that approximately a minute or two no more than three minutes Officer Laumann had walked into the back bedroom and while I was standing in the front room, James Vale and his mother came into the front room of the house.

At this time, I identified myself to them and told them Donald Vale was under arrest and we were going to conduct a search of the house.”

That's where the two or three minutes came in.

He told them they were going to search.

We simply submit and may it please the Court, that appellant was convicted on the basis of evidence obtained in violation of the Fourth and Fourteenth Amendment.

That conviction was affirmed actually here be reversed.

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

Justice Byron R. White: Mr. Deutsch, may I ask you a moment?

Mr. Eberhard P. Deutsch: Certainly.

Justice Byron R. White: I know that the Court suppose upon the jurisdiction in this case rather than noting --

Mr. Eberhard P. Deutsch: Yes, sir.

Justice Byron R. White: If your fictional question here is there is only a question of whether to make an appeal or search?

Mr. Eberhard P. Deutsch: Well, that could be the only question actually.

The state filed a motion to dismiss for one of jurisdiction and the Court postponed that to the merit.

The state has not raised the question of jurisdiction in its brief to this Court.

Justice Byron R. White: Well, what was the question raised in motion?

Mr. Eberhard P. Deutsch: You see the State Supreme Court cited the statute permitting the search on making arrest and then held not very specifically or clearly that there was nothing violated of the Constitution in the arrest made under that -- and the search made under that statute which I construe to mean that they held that the statute as so applied does not violate the Fourth and Fourteenth Amendment.

If so, this is a good appeal if not it belongs here on cert in any event.

That would be my construction.

They held the statute not to be violated.

The statute is so applied not to be violated with the Fourth and Fourteenth Amendment.

Chief Justice Warren E. Burger: Thank you.

Mrs. Korns.

Argument of Louise Korns

Ms Louise Korns: Mr. Chief Justice and may it please the Court.

The State of Louisiana certainly agrees with everything that Mr. Deutsch has said about the inviolability of homes and the constitutional prohibition against the search of a house without a warrant.

However, as the State of Louisiana sees this case, its issue is much narrow and sort of confined the facts of this case.

This Court has held continually and even as later Chimel that --

Justice Byron R. White: Do you have trouble to that?

It might interest you that counsel for that effect is here a while ago and he told us that this can have Chimel?

Ms Louise Korns: Chimel? [Laughter Attempt]

I think even as later as laid as young as decision in Chimel, it was taken to be settled jurisprudence of this Court that following a valid arrest, an incidental search can be made.

Now, do I understand, has the State of Louisiana certainly argues that a valid arrest without warrant was made in this case or at the right at the front door of the house -- front steps of the house.

We concede that it was not in the house, it was -- Vale was returning to his house.

Now, if a valid arrest was made, an incidental search contemporaneous with this arrest under the jurisprudence of this Court on incidental search was permissible.

And as the State of Louisiana sees that the only issue before this Court is whether the scope of that incidental search was also permissible.

In other words, --

Justice Thurgood Marshall: What were you searching for?

Ms Louise Korns: The police officers testified Mr. Justice Marshall that they were sure that there were narcotics in that house because as they watched the house to be sure Donald Vale was there before going forward with these prior arrest warrants they had that what they saw convinced them that Donald Vale had gone back into that house to get the narcotics which he brought out and sold to Saucier --

Justice Thurgood Marshall: Well, they weren't looking for weapons, were they?

Ms Louise Korns: No sir, they were looking for narcotics there's no doubt about it.

Justice Thurgood Marshall: They weren't looking for anything that might injure them, were they?

Ms Louise Korns: No, sir.

They were looking, the State of Louisiana concedes because it's from the record, the State of Louisiana has to concede.

The police officers testified that they were sure there were narcotics in that house from which James Vale was -- Donald Vale had going in.

They were sure that was where his supply was that he would come out of that house and sell to the people who would come up to the house like Saucier in instance case.

So they -- when they saw him go back in the house, come back in out without within minutes, looked up and down the street as he went down the steps and put his head in the car, and what they were convinced was a narcotic sale.

And then when they approached the house, an Saucier swallowed the narcotics and they frisked down Saucier and Donald Vale and found nothing on them, they testified that they were convinced that the source of those narcotics were in that house.

So, there is no doubt about the issue in this case as the State of Louisiana sees it is a very narrow one was the scope of their search incident to Donald Vale's legal arrest constitutionally permissible in scope.

That is there's no doubt about it that under the jurisprudence of this Court, they had the right following this valid arrest without warrant and from the house to frisked down Saucier and Vale.

No doubt about that under the settled decisions of this Court.

Now, the State of Louisiana and under the Chimel decision, the incidental arrest has been confined to the area within which the accused could reach.

Well, there's no doubt about it that the search in the instant case went beyond the area into which Donald Vale could've reach because it was inside the house.

Now, though it's Louisiana's position that this was an emergency situation and that it was impossible to get a search warrant -- impossible to get a search warrant in advance because they didn't know that they were going to be confronted with this emergency sale which took place before their eyes.

They thought they were just going there to arrest this man on prior narcotics charges.

So, they couldn't have brought along a search warrant, there's no doubt about that.

Is it time for the Court to recess, Your Honors?

Chief Justice Warren E. Burger: Not quite.

Not quite, you got two more minutes.

Ms Louise Korns: Well, they couldn't have gotten a search warrant in advance on going into this house.

Justice Potter Stewart: How long that they have been stick out there?

Ms Louise Korns: Apparently, about 15 minutes Mr. Justice Stewart.

The reason they were watching this house was that Donald Vale operated from three or four addresses.

Justice Potter Stewart: Yes.

Ms Louise Korns: They had arrested him at other addresses previously and they just testified that they -- before approaching the house and letting James Vale, his brother and Mrs. Vale his mother know that they were looking for Donald with an arrest warrant.

They didn't want him to be elated to this fact.

And therefore, they wanted to be -- they have gotten a tip that he was selling from this address at that day or that he was at this address that day, let's say.

Justice Potter Stewart: Well, now which --

Ms Louise Korns: That they could pick him up at this address that day.

Justice Potter Stewart: Does the record show that they have information that come to him indicated that he was selling on that address on that day?

Ms Louise Korns: No.

No, that's a mistake.

They just said they have been told what he was at this address and they testified that they took up their position to watch because they want to be sure he was there before they -- they wanted to see him when they approached in to serve the arrest warrants because they didn't want him to doth again and because this was an alias capias that issued for him when he had failed to appeal.

So, they watched actually I was completely wrong when I said, they thought he was selling and they did.

They watched to be able to serve the arrest warrant.

I see that my --

Chief Justice Warren E. Burger: I think we'll suspend until morning.

Sorry to hold you over until tomorrow Mr. Deutsch and Mrs. Korns.

Ms Louise Korns: Thank you, Your Honor.

Print this transcript Transcript: 

Argument of Louise Korns

Chief Justice Warren E. Burger: Arguments in Number 727, Vale against Louisiana.

Mrs. Korns, you may proceed whenever you're ready.

Ms Louise Korns: Mr. Chief Justice and may it please the Court.

Just to briefly recap the factual situation here, three New Orleans police officers went to 1826 O. St. in New Orleans bearing two arrest warrants for Donald Vale involving prior narcotic crimes.

They wanted to be sure that the accused is at this address before serving these warrants.

They knew that Mrs. Vale, his mother and his brother Donald live there and they want to elate Donald have him take off again.

So, they parked their car about half a block from the house and watched it and they saw about 15 minutes later they saw a transaction take place between a man, Saucier who approached the house in a car and Donald Vale who came out of the house and apparently sold narcotics to this man in the car.

So, they approached the car, arrested Donald Vale and Saucier.

Donald Vale, as he got close to go back in his house arrest them for possession of narcotics.

First, meanwhile they had seen as they approached, they had seen the man in the car put something in his mouth and swallow it which to experienced narcotics officers like this just meant one thing that he was swallowing narcotics.

So, after they arrested the man in the car and Donald Vale, they frisked and briefly found nothing on them, no weapons, no narcotics.

And then the police officers the record shows told Donald Vale that they want to go in and search his house.

The door to which he had left open in coming out to make this sale to find the narcotics that they were sure were the source of this supply that he had passed on to Saucier.

Thereupon, they entered the house.

Shortly thereafter within minutes thereafter Mrs. Vale and Donald's brother James entered the house and the police officers informed them also they were going to make the search.

And the within five or ten minutes in the back bedroom which appear to be a man's bedroom, the police officers testified they found the heroin and Dilaudid they were seeking in the coat, several coats hanging in a closed locker.

The State of Louisiana believes that following the legal arrest which clearly took place here in front of the house, the police officers were entitled to make an incidental search.

Justice Potter Stewart: Was the arrest legal because of the capias that the officers had or was it legal because of what they have seen that apparently Donald Vale?

Ms Louise Korns: What they had seen Mr. Justice Stewart.

We don’t rely at all on those capiases there's no -- the State of Louisiana feels that if they fade out the picture as far as this search went.

They only served is adding probable cause for the warrantless arrest because they were for prying narcotics offenses which had occurred a couple of weeks before and more over.

At least one of these three offices had been involved, the record shows in those prior arrest and the record also shows that, at least one or more of these officers had not only arrested Donald Vale either been a connect with these prior narcotics arrest that were familiar with him in his narcotics transactions, knew Saucier the man to whom he was apparently selling, knew that this house was lived in by Mrs. Vale, Donald’s mother and his brother James.

The record shows that they knew that.

So the State of Louisiana is not relying at all on these capiases for this arrest, but only on this warrantless arrest which took place before the house.

Justice Potter Stewart: I see.

Thank you.

Ms Louise Korns: Now, the evidence shows that the police officers didn’t know who was in that house when they arrested Donald and Saucier in front.

It shows that officers were very concerned with the idea that at this very moment either Mrs. Vale or brother James or Donald’s girlfriend who traveled around with him to various addresses was right at that very time getting either hiding the narcotics, taking him out the backdoor, disposing of them in some way.

So, as Louisiana sees it.

There was the dilemma faced by these officers and they either had to seize this evidence right now or not at all because I know yesterday the Court was opposing the problem of whether there were any alternatives to an immediate warrantless search and as a practical matter it’s Louisiana’s position that there were no practical alternatives because of the time involved in getting a warrant and the fact that -- One thing is clear, not knowing whether anyone was in the house or not, the officers had to enter the house and search it fairly thoroughly to find out even if whether someone else was in the house because confederates often hide in closets and under beds as this Court knows and it was only about fairly thorough search of the house that the officers could even determine that there was no one in the house to dispose --

Justice Potter Stewart: Confederates generally don’t hide in somebody’s coat pocket?

Ms Louise Korns: No that’s perfectly true, that’s right.

But they had to make a search of the house in fair detail to be sure that no one was hiding in the house, in closets, in rooms, and so forth and under beds.

Chief Justice Warren E. Burger: Well, do you think they were entitled of that point to search for firearms to see whether they were exposed to any danger from occupants of the house?

Ms Louise Korns: Well, actually I think the question of firearms I guess is always lurking in the background but with what narcotics addicts generally, I don’t think weapons are generally involved in these crimes.

I think mostly it’s the police officers they're concerned and the record here shows with getting to the evidence before the people involved with the narcotics can get rid of it just like in this case, Saucier got rid of the narcotics which Vale had just sold in by swallowing.

And the officers, the record here show that they rushed first to the bathroom to listen for the sound of running water when they approached, they testified that and looked around in the toilet bowl and so forth because looked in the basin and in any drain like that where narcotics could be disposed off.

So, really I think -- I don’t think I will be frank and say no I don’t think the officers were afraid that they’d be shot at from the house or anything.

I think their primary and only purpose was to try to get hold of this narcotics which they were convinced Donald Vale, they just seen him sell but because of Saucier swallowing that evidence they -- because that would have been there right there if Saucier didn’t swallow the evidence and arrested Vale for this present narcotics sale and the Saucier had the evidence that would’ve been it.

Justice Hugo L. Black: Have the officers testified they were not looking for weapon?

Ms Louise Korns: Your Honor, it didn’t even come up there is --

Justice Hugo L. Black: They haven’t been testified at all of that?

Ms Louise Korns: And that's right, there is no testimony at all on that subject and really I don’t think it -- you know was a matter in which anyone on either the defense or the accuse were interested at the trial of this case for instance only --

Justice Hugo L. Black: Do you think officers going into a place like that push the others to see and whether or not there might be a gun?

Ms Louise Korns: Well, sure I mean I think they -- I don’t think there is concerned no with guns for narcotics addicts as they also for say burglary suspects are people who commit crimes of violence.

There's no doubt about it when they -- when they frisked down Vale and Saucier.

When they first arrested them, they -- I think the record will show maybe that they were frisking for possibility of weapons or narcotics, but they did testify that they wanted to go in that house because they were sure that that's where the hoard of narcotics were.

Justice Potter Stewart: As -- well, when they were in the house as I understand it except for this appellate here when they just arrested there was nobody in the house?

Ms Louise Korns: That’s right, the thing is that they didn’t know that though Mr. Justice Stewart until they had gone all through the house to be sure because they knew that Mrs. Vale and James live there and then of course when Mrs. Vale and James showed up within about five minutes after the officers got in the house has but before they’d found the narcotics.

Then, the only other place they could’ve been hiding in there was Donald’s girlfriend, but I think by that time they’d run through the house enough to be sure that nobody was in the house.

But they didn’t know this until they got in.

Justice Potter Stewart: And the fact is there was nobody in the house?

Ms Louise Korns: The fact is there was nobody, but they have no way of knowing this.

And as a matter of fact as I say the record shows that they positively knew that somebody could be there.

Now, the State of Louisiana just wants to oppose to this Court the practical difficulties involved if the police were going to get a warrant to search for this narcotic evidence.

As I say, they first had to get into the house to be sure no one was hiding in there or would’ve done no good to put a cord in around the house without first finding out there was nobody in it.

Having found out that the only two people on it were James and Mrs. Vale then they would’ve had to call in other police officers to keep these people under surveillance.

Their movements under complete surveillance are to keep -- take them out of the house during the time in which they took them to get a search warrant.

And in owing to perish at least, search warrant issued by criminal district court judges and at least one of these arresting officers because only they three knew the facts would’ve had to go back to the police bureau and typed up the affidavit.

And you have to type up an affidavit for a search warrant in about six duplicates.

Police officers don’t reduce probable cause to writing with the greatest to speed.

It’s been my experience these men often have all kind of reasons why they do things.

They're not the most articulate people in the world particularly when they have to write down and often in the past they used to put down too little but now because Court decisions throw out worst they put down much too much.

They put down everything they’ve seen and gone and so forth and so it runs on for pages.

Then, they’ve got to find the judge to study this warrant and find out whether it’s stays probable cause and if he’s in his court or in his chambers and busy they have to wait, and then present it to him and if he’s going home then they have to track him down and find him and I think at the best with everything going in your favor takes at least three hours to process a search warrant.

And often it takes a whole day before you can get the whole thing typed up and the judge satisfied and signed and back and served the copies.

You have to give one to another clerk’s office so they’ll know what property they’re going to seize and then make returns and so forth.

So really you know these the officers, the record here shows that the officers approached Donald Vale’s house around noon with luck they could very well have been back with the search warrant later to that afternoon.

But if any little interference had come up for some reason or another they might not have been back until the next day and unless they had kept these people under close surveillance, they would’ve been any narcotics evidence left in that house when they got back.

And also --

Justice Potter Stewart: How do you -- how can you say that if after they had seen this transaction they just simply going down and get a search warrant, they hadn't been seen by Vale or anybody else at that time?

Ms Louise Korns: Well, in the first place they didn’t know that they hadn't been seen by the Vales and actually probably knew there were people in the house watching everything they did or they might very well have been neighbors watching what they did.

We don’t know about that but these things get around very quickly among people of this type.

Not only that Mrs. Vale and James came back to the house within minutes after the police officers got in to house.

So therefore, but they might’ve very well have gotten back to the house seeing the police officers put Saucier and Donald into the cars.

I mean, this --

Justice Potter Stewart: What sort of a neighborhood was this in the New Orleans?

Residential or business or commercial, what is it?

Ms Louise Korns: Yes, Your Honor.

A residential small sort of shotgun house is close to each other.

Justice Thurgood Marshall: What -- there were three officers?

Ms Louise Korns: Yes.

Justice Thurgood Marshall: And there were two entrances to the house; one front door and one back door?

Ms Louise Korns: There wasn’t backdoor entrance leading into the yard.

This is clear because the record shows that the officer -- one of the officers run out the backdoor and looked in the yard and see if there was any disposable evidence.

Justice Thurgood Marshall: So, once they have found that there was nobody in the house, no person it would only take a two policemen to make sure that nobody disturbed the evidence, would they?

Ms Louise Korns: That’s right but Mr. Justice --

Justice Thurgood Marshall: So we take one policeman with the two prisoners?

Ms Louise Korns: Couldn’t have done that Mr. Justice Marshall.

One policeman couldn’t drive two prisoners and that would be bad security.

You have to at least to have two police officers in the car with two prisoners.

One police officer is so to drive and one to watch the prisoners.

Justice Thurgood Marshall: Well, they could’ve left the prisoners there?

Ms Louise Korns: There's no doubt about it they could --

Justice Thurgood Marshall: Doesn’t the record show that two police officers went inside and one stayed out with the prisoners?

Ms Louise Korns: No, I don’t believe sir.

I think the record shows that all of them went in.

All the police officers and Donald Vale and Saucier and that then Mrs. Vale and James arrived.

Justice Thurgood Marshall: Well, could they have gotten one more policeman in New Orleans to watch the backdoor while one guards the front door?

Ms Louise Korns: There's no doubt about it.

There’s no doubt about they couldn’t.

Justice Thurgood Marshall: And the evidence could not have been destroyed.

Ms Louise Korns: No doubt about it.

The Louisiana did say they could’ve -- position as this would have taken a long time and it would have interfered with the liberty of Mrs. Vale and James Vale inordinately?

And supposing in the end they haven’t found any?

Justice Thurgood Marshall: Did the arrest take place?

Ms Louise Korns: They only arrested him after they found the narcotic evidence.

Justice Thurgood Marshall: Well, that’s interfering with it they --

Unknown Speaker: (Inaudible)

Ms Louise Korns: No, well they arrested him for possession of narcotics Mr. Justice Marshall after they had searched the house and found the narcotics in his bedroom as his mother said.

But we’re talking about the preliminary situation when the officers had just arrested Donald and Saucier right outside the house engaged in a narcotic transaction and then the whole issue they had to decide on the spur of the moment was whether to go in that house and look for those narcotics.

They didn’t know whether anyone was in the house or not.

That’s the situation we have right there.

They have to go in the house to see if anyone was there.

Now, there's no doubt it we can see that they could’ve gone in and look around and seen no one was there then they could’ve called other police, placed guards on the house and gone out and got a warrant.

This would’ve take in anywhere from three hours to the next day.

We concede that.

Justice Byron R. White: Well, you would be making the same argument wouldn’t you if they had arrested him six or eight blocks away on his way to his house?

Say, he was going from work to home or they just intercepted him on the street and they thought there was probable cause that he had narcotics in his house.

Let's assume they did have probable cause, do you think he had narcotics in his house, you would be making the same argument that you should not have to wait for a warrant in order to search that goes likely places where narcotics might be located?

Ms Louise Korns: No, Mr. Justice White here of course we’re relying on the settled decisions of this Court that following a valid arrest the police can make a search incident to that arrest at the place of the arrest.

And the only issue here is whether the place was extended a little too far as we said because Donald Vale was arrested at the front door of his house.

Justice Byron R. White: Well, how do you distinguish Shipley?

Ms Louise Korns: Shipley, we distinguish very clearly.

In that -- in Shipley for instance the only similarity between this case and Shipley is that both arrests took place outside the house but unlike this case in Shipley, the police officers weren’t watching and didn’t see Shipley going in and out of his house committing a crime.

Shipley had committed that crime several days before and they were just at his house to arrest him for this crime they’ve heard about.

Secondly, Shipley didn’t involve narcotics --

Justice Byron R. White: Are you saying that in Shipley apparently they didn’t have -- even have probable cause to search that house, is that your point?

Ms Louise Korns: Well, right.

The thing is that I see it Shipley then hour of that they could’ve got a search warrant and Shipley as this Court pointed out they stake -- they first went into the house and Shipley and they already eluded Shipley’s associates to the fact that they went search because his wife was in there.

They already knew then they went back out and stake to that.

Now during the stakeout they could’ve which went on for several hours, they certainly could’ve gotten a warrant.

It wasn’t the emergency situation which here this emergency situation just developed in front of the officers as they went to serve these two old alias capiases.

They were presented with this emergency situation completely unforeseen, the sale took place in front of there eyes.

Then what they were going to do about trying to get that evidence which they knew was in that house.

It all happened just like that.

Chief Justice Warren E. Burger: Mr. Korns, let me go back to the hypothetical that Mr. Justice White put to you.

That is if he encountered Vale six blocks away from the house.

In that circumstance, would he have any basis for thinking the house was the source of supply having been seen him come from the house to make the sale?

Ms Louise Korns: Not at all, not only that but the house wouldn’t be the place of the arrest here it’s true that the arrest took place at the front steps of the house but remember this, Donald Vale had gone into the house when Saucier had first given him let him know he want a narcotics had come out of the house, leaving the door open, looking up and down.

When Vale saw the police officers approached his house and arrest him right there at the car, he turned around and started toward the front door and as a matter of fact if the police officer had been aware of all the decisions which police officers aren’t.

If I've been there I would just wait that the minute let Donald walk back into his house and then when a few steps he would’ve been inside the house and you say, alright -- alright, although under Chimel I guess you would’ve had to lame walk all the way back to the closest.

But anyway, nevertheless, it was so clearly a question of the arrest taking place at the scene you know of the search talking place at the scene of the crime immediately contemporaneous with the crime.

That we think these are the facts at which governed this case and would clearly distinguish an arrest which took place on the street for instance.

There, the place of the arrest would be the street and there the officers would only look around the feet of the accused for instance.

Now, the State of Louisiana feels that this emergency situation is so similar to the one that existed to Schmerber for instance or in Warden versus Hayden and we can't see the difference.

Of course in Schmerber it involved a blood sample and in Warden versus Hayden it involved burglary -- fruits of the burglary.

But nevertheless, the basic situation is the same.

The police officers are faced with a situation in which they’ve got to act quickly or the evidence they are going to seize is not going to be there anymore.

They're faced with this situation and narcotic evidence disappears just as rapidly as does alcohol in the blood.

Not only that, I’d like to point out to this Court that if police officers can't make searches for narcotics such as existed in the present case, they can't really ever seize this evidence because how would they able to get a search warrant for instance although -- no, let's say the police officer is like in the present case knew that Donald Vale was operating from four or five different addresses.

Now, supposing they had gone to -- had made out a search warrant about six of them, four or five addresses, one for his car, one for his person.

All simultaneous and taking him to a criminal district court judge all residing probable cause to believe that this particular warrant were discovered would turn out narcotics.

The judges signed them all then he had gone around and executed all these warrants and one of them that had found narcotics.

It seems to me that the accused, all he had to do is go and say, how could you have probable cause for this one warrant when you sign -- when you got that five others and you really didn’t know where it was did you and no you didn’t.

And how do you know where the narcotic evidence is in the case like this where this guy -- these people are very smart and they jump around and they change where they keep the narcotic hoard on the person and the car in different place.

So, how would the police ever get?

Chief Justice Warren E. Burger: Is this the case in which the record shows that they have habitually used three or four connecting houses?

Ms Louise Korns: No, not connecting houses Your Honor.

Donald Vale, this was his mother and brother’s house.

He had an apartment of his own, he sometimes stays in his girlfriend’s apartment or friend’s apartment operated of an automobile but he’s an intelligent man enough to know that if he doesn’t keep moving and keep his narcotic stock quickly shifting around then it’s going to get seized.

Now, are there any questions of Court would like to ask?

Chief Justice Warren E. Burger: I think none Mrs. Korns.

Ms Louise Korns: Thank you, Your Honors.

Chief Justice Warren E. Burger: Thank you.

Mr. Deutsch.

Argument of Eberhard P. Deutsch

Mr. Eberhard P. Deutsch: Mr. Chief Justice three or four observations in connection perhaps primarily with the discussion yesterday.

I did make inquiry Mr. Justice White is to how long it would take to get a search warrant because I have no idea of my own.

I was told that the ordinary practice of a situation of that sort is for one of the officers to telephone that they're coming down, give the appropriate information, and get the necessary papers ready while they were on their way back within the day time while courts are opened.

They -- it does take only about 30 minutes to prepare the necessary papers and add to that the time going in and coming back out should not be more than one hour for whatever that’s worth.

Chief Justice Warren E. Burger: I think you're posing the optimum circumstances --

Mr. Eberhard P. Deutsch: In the day time, yes sir.

Chief Justice Warren E. Burger: Mr. Deutsch, the optimum on a very favorable basis.

Mr. Eberhard P. Deutsch: There's no question about that that is the optimum situation.

Chief Justice Warren E. Burger: That would be perfect operations if you had an assistant district attorney there to assist with the preparation of that application to be sure that it met the standards laid down by this Court which are preferred to (Voice Overlap)?

Mr. Eberhard P. Deutsch: I'm not at all certain Mr. Chief Justice that a search warrant would be issued in such a case on the type of evidence they had.

Now, the statement is made -- has been made that there was a narcotics transaction which have taken place.

Actually no one saw that, they saw what they thought was a narcotics transaction.

There was --

Chief Justice Warren E. Burger: Isn’t that the essence of probable cause, it’s more probable than not that people in these circumstances swallowing something in the presence of the officer were swallowing something incriminating?

Mr. Eberhard P. Deutsch: I'm sure that on that alone, they would never get a conviction at least I assume that from reading the newspapers.

Chief Justice Warren E. Burger: No, we’re just talking now about probable warrant.

Mr. Eberhard P. Deutsch: About probable cause and I plead I don’t dispute that.

I don’t dispute the probable cause.

I made the statement that he has that I didn’t know never seen a search warrant so I couldn’t very well speak about it.

In the course of checking on that I find that with one exception in the history of this Court at least to modern history no writ of certiorari has ever been issued out to this Court and no one has ever seen one where used to using this terms without really realizing what they are.

I assume the judge to this Court had.

I was asked yesterday too about the question as to why a hearing should be granted in this case and it should not have been handled summarily.

I assume that was because Mr. Justice Black and Mr. Justice White while concurring in the grant of certiorari in the two prior case has decided in June of last year said that they dissented from a summary dismissed -- summary reversal of those cases without a hearing.

And that under those circumstances it was thought best to grant a hearing in one case for the trial.

Now, we --

Justice Byron R. White: The two cases you were referring whether New Jersey case and the California case, I assume?

Mr. Eberhard P. Deutsch: Yes sir, Von Cleef and Shipley, that’s right.

Now, we rely of course on Agnello, James and Shipley in which and the statement finally made in Shipley that no warrant has ever been -- had no search has ever been held to be valid when the arrest was made outside the premises in which the search took place.

We submit the case.

Chief Justice Warren E. Burger: Thank you Mr. Deutsch. Mr. Deutsch, you acted at the request of the Court by appointment of the Court, we thank you for your assistance to us and of course assistance to your client.

Mr. Eberhard P. Deutsch: I'm very grateful for the privilege Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you Mrs. Korns.

The case is submitted.