WHITELEY v. WARDEN

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Argument of William K. Knudsen, Jr.

Chief Justice Warren E. Burger: oWhiteley against the Warden of Wyoming State Penitentiary.

Mr. Knudsen you may proceed whenever you’re ready.

Mr. William K. Knudsen, Jr.: Thank you sir.

Mr. Chief Justice and may it please the Court.

This is a habeas corpus proceeding which started in the United States District Court in Wyoming in November 1967 where petitioner’s claims were rejected.

On appeal to the Court of Appeals for the Tenth Circuit, the lower court’s decision was affirmed.

The pertinent history of the state court proceeding begins with Whiteley’s arrest in November 1964 and is being charged in two counts, breaking and entering and being an habitual criminal.

The petition was tried in Carbon County, Wyoming by a jury in May 1965 and convicted on both counts.

He was sentenced one to 10 years on the first count and for life imprisonment on the second, both counts to run concurrently.

Whiteley appealed this conviction to the Supreme Court of Wyoming which affirmed the judgment below.

In the United States District Court below when the party stipulated to try the case on both the record in the Trial Court in these original criminal proceedings number 2885 and on the record on appeal to the Supreme Court of Wyoming.

The issue before this Court is whether probable cause existed for petitioner’s arrest.

If not, a surge incident to this arrest was illegal and invalid and the fruits thereof could not be used at his trial as they were.

Chief Justice Warren E. Burger: When was he tried originally?

Mr. William K. Knudsen, Jr.: He was tried in May 1965 Your Honor.

The pertinent facts are as follows: on November 23, 1964 several business establishments are broken into in a small town of Saratoga, Wyoming.

The next day, the sheriff of Carbon County acting on a tip from an unnamed and unidentified informant executed a complaint or affidavit on a basis of which an arrest warrant was sought and was issued.

With the Court’s permission, I would like to read the pertinent parts of this complaint since petitioner’s case in large part is based on a two alleged defects contained there in.

This complaint appears on page four of our brief.

Unknown Speaker: Mr. Knudsen you said based in large part, isn’t it based entirely --

Mr. William K. Knudsen, Jr.: Well Your Honor --

Unknown Speaker: In your alleged defects of this --

Mr. William K. Knudsen, Jr.: Three courts below have surprised me by ruling that at the -- there was probable cause for a warrantless arrest.

And I would like to address that question in a moment sir.

I think the case rises or falls on this affidavit but the Supreme Court of Wyoming, the United States District Court for Wyoming in the Tenth Circuit have all argued that this was a warrantless arrest based on probable cause.

Justice Potter Stewart: Their position is that it doesn’t make any difference whether the affidavit is defective.

Mr. William K. Knudsen, Jr.: They didn’t seem to discuss it Your Honor and I take it that they felt that it was defective and there were other grounds for the warrantless arrest.

Justice Potter Stewart: I just want to be sure of your position.

Your position is that even if there were no affidavit which was defective, if the affidavit didn’t exist that still you would have a case here?

Mr. William K. Knudsen, Jr.: No, we would not.

You see Your Honor, first we have the affidavit which was defective and then we have the warrant of arrest which I say was defective because the affidavit was defective.

This warrant of arrest was put on a statewide broadcast to all law enforcement agencies requesting them to arrest Whiteley on site.

Justice Potter Stewart: I know what the facts are, right?

You’re setting up a string of dominoes.

And If -- I think your theory is that one tips, the whole group tips.

Mr. William K. Knudsen, Jr.: Yes, so you might go --

Justice Potter Stewart: Well, I’m asking supposed your case were such factually that there never was an affidavit, then would you be here?

Mr. William K. Knudsen, Jr.: Yes, I probably would because I’d say the warrantless arrest like probable cause and --

Justice Potter Stewart: And I take it, you will expand on this, and this is what I meant to --

Mr. William K. Knudsen, Jr.: Yes sir, I hope so.

The affidavit on behalf of the arrest warrant reads as follows: I see W. Ogburn to solemnly swear that on or about the 23rd day of November 1964 in the County of Carbon in the State of Wyoming, the said Harold Whiteley and Jeff Daley, defendants, did then and there unlawfully break and entered a lock and sealed building, stars showing in matter that has been excluded as unnecessary --

Justice Potter Stewart: That is the Rustic Bar, is it not?

Mr. William K. Knudsen, Jr.: Pardon.

Unknown Speaker: That is the Rustic tavern or --

Mr. William K. Knudsen, Jr.: Yes that’s right, yeah.

Contrary to the form of the statute in such case made and provided against the peace and dignity of the State of Wyoming, now that is the affidavit.

Now, the warrant of arrest was issued and a statewide broadcast made to all law enforcement agencies on the basis of this arrest warrant and nothing else.

That very night, petitioner was arrested by police officers of the City of Laramie which is the largest city in the adjoining county, Albany County and they arrested Whiteley with a Deputy Sheriff of Albany County.

And now we come to what I think is the crux of the case.

This arrest was made solely on the basis of the statewide broadcast.

Neither the Laramie police nor the Albany County Deputy Sheriff had any reason to arrest Whiteley other than the broadcast.

And the reason that this is so important is that these three courts below had previously passed on this very issue namely the Wyoming Supreme Court, the US District Court and the Tenth Circuit Court of Appeals and each Court has made what I consider the same error that despite the fact that an arrest warrant had been used, the arrest was valid as a warrantless arrest on the ground that the arresting officers had probable cause.

And they find this probable cause because they were told by another law enforcement agency to arrest them.

Now, I think this must be emphasized.

The arresting officers had no independent knowledge of any facts concerning the crime.

Therefore, I submit that the key question before this Court is not whether an arrest based on an invalid arrest warrant may still be valid if efficient probable cause exists to support a warrantless arrest rather, the crucial issue here is whether an arrest based on an invalid arrest warrant and without any independent ground on the part of the arresting officer to support a warantless arrest is valid.

And I submit --

Chief Justice Warren E. Burger: Would you make that argument if is Ogburn, the sheriff --

Mr. William K. Knudsen, Jr.: Of Carbon County.

Chief Justice Warren E. Burger: Of Carbon County, if Ogburn in fact have probable cause independent to this warrant, lay aside the warrant.

If Ogburn had no warrant at all but had information which would constitute probable cause for the arrest, would you say then Ogburn could arrest him, personally?

I suppose, the answer to that must be yes.

Mr. William K. Knudsen, Jr.: I guess the answer is yes, so I kind of lean Your Honor to the fact, to the rule that if you seek out an arrest warrant and you don’t do it properly, all bets are off, that’s the end of it.

But I know the lower courts in this country have held that if the arrest warrant is invalid but there still remains probable cause for a warrantless arrest, that is good.

Chief Justice Warren E. Burger: I’ll go back to my hypothetical, if in fact Sheriff Ogburn had probable cause to make an arrest personally, do you say he could not delegate that to someone via the state wide radio network of the police?

Mr. William K. Knudsen, Jr.: No, I do not.

If he had probable cause he certainly could delegate that.

Chief Justice Warren E. Burger: But your point is that even if he had probable cause for an arrest without a warrant, having one side of warrant then it stands or falls on the technical infirmities of that warrant.

Mr. William K. Knudsen, Jr.: Well, I go beyond that Your Honor.

I say that but I also say that he did not have probable cause.

Chief Justice Warren E. Burger: Well if you make both arguments.

Mr. William K. Knudsen, Jr.: Yes, I say that he did not have probable cause.

Now, I say another way of putting this --

Justice Hugo L. Black: All the officer had you seen it at the place, at the time of the burglary or what was to be committed, have you seen him run out, arrest him and then also you had a warrant, would you say that he could arrest him on this probable cause?

Mr. William K. Knudsen, Jr.: Yes, I think and under those circumstances, yes, if he had actually seen them.

Yes sir.

Justice Hugo L. Black: So that is an issue in each case, I suppose.

Mr. William K. Knudsen, Jr.: Your Honor here, there’s no information, whatsoever other than this anonymous tip.

We have no underlying circumstances.

I’m coming now to the affidavit and there are no underlying circumstances to show that Whiteley had anything to do with the crime, that’s Aguilar and Spinelli and Giordenello and secondly, there were no underlying facts set forth to show that the informant was reliable.

In fact, Ogburn didn’t even show that there was an informant in the affidavit.

It was only at the trial when defense counsel asked him how he got this information.

He said I got it from a tip.

And then the defense counsel didn’t follow it up and it remained that way.

So a non-identified informant gave him this information.

It does not appear in the affidavit that there was an informant but disappears at the trial.

He was unidentified.

There is no statement about his reliability in the affidavit or anywhere else for that matter in the record.

And the underlying facts with respect to the crime under Aguilar, Giordenello and Spinelli do not exist.

Chief Justice Warren E. Burger: Did the petitioner ask for the disclosure of the informant’s name?

Mr. William K. Knudsen, Jr.: No, he did not Your Honor.

I don’t’ know why.

This was tried several years before I came to Wyoming and I do not know.

Chief Justice Warren E. Burger: Suppose one practical reason is that the information having turned out to be correct, it did occur to that it was very useful to challenge him.

Mr. William K. Knudsen, Jr.: I think that might have been a tactic.

But or --

Chief Justice Warren E. Burger: Is he represented by counsel at the trial?

Mr. William K. Knudsen, Jr.: Yes sir, yes sir, assigned counsel.

I submit Your Honors that another way of putting this is whether an invalid arrest warrant can be validated by airing it on a broadcast to other law enforcement agencies.

I think the case is that simple.

I think that the courts below have gotten confused, starting out with the Wyoming Supreme Court which held that this was a good warrantless arrest because the police officer in Laramie had been told to arrest them by the Sheriff of Carbon County.

And I do not see how an arrest warrant that is bad can be validated by putting it on the air.

It is absolutely nothing.

I want to make this very clear to the Court.

There’s nothing in the record to show that there is any probable cause here that the sheriff had which he did not disclose to the magistrate.

The record is barren on that point.

Justice Thurgood Marshall: And it just feels that the original arresting officer would issue the broadcast could not address it.

Mr. William K. Knudsen, Jr.: I feel Your Honor, in fact I say that in my brief that Ogburn who was the affiant could not have arrested him on the basis of his information because it was based on a non-identified informant not proven to be reliable.

Justice Thurgood Marshall: And those are going to say whoever acted on that broadcast has more rights that he had.

Mr. William K. Knudsen, Jr.: Exactly Your Honor.

In fact it’s kind of like Mr. Blackmun’s domino theory, I don’t want to describe that to you sir but since the affidavit was bad, the arrest warrant was bad, anything done pursuant to that arrest warrant was bad by anyone including Ogburn.

And I think this is the case.

If the Court has no more questions, I’d like to reserve the rest of my time for rebuttal.

Justice Potter Stewart: Yes, let me ask another fact question, with what was the defendant charged?

Mr. William K. Knudsen, Jr.: He was charged with breaking and entering and the habitual -- violation of the habitual criminal statute in Wyoming.

Justice Potter Stewart: Well, let’s be a little more specific.

He was charged with breaking and entering what?

Mr. William K. Knudsen, Jr.: He was charged with breaking and entering Shively’s Hardware Store.

Justice Potter Stewart: And the original affidavit had nothing to do with Shively’s Hardware Store?

Mr. William K. Knudsen, Jr.: Yes, but I don’t make an issue of that Your Honor.

Justice Potter Stewart: Maybe we do --

Mr. William K. Knudsen, Jr.: Oh, I’m sorry Your Honor.

Justice Potter Stewart: Because he was charged with something different than the affidavit had to do with it?

Mr. William K. Knudsen, Jr.: Yes.

I did not because I felt that both affidavits were equally defective.

The first one had to do with another man’s store across the street.

And then the second one which had to do with Shively’s Hardware, I think they are equally defective.

Justice Potter Stewart: Well, was there a second affidavit?

Wasn’t it the formal charge --

Mr. William K. Knudsen, Jr.: No, it was an affidavit after he was arrested, at least I’m pretty sure it was an affidavit and which was made after the arrest and this was the basis for the further proceedings.

Justice Potter Stewart: Which is necessarily your possession however, that despite this difference in the accusatory affidavit originally having to do with the rustic tavern I think it was.

Mr. William K. Knudsen, Jr.: Yes.

Justice Potter Stewart: And the charge which was breaking and entering the Shively’s Hardware Store, it still falls as one of the dominant.

Mr. William K. Knudsen, Jr.: Yes sir, yes Your Honor.

Justice John M. Harlan: What was the search on bar from the arrest?

Mr. William K. Knudsen, Jr.: The search was of Whiteley’s car.

He was put in the police's car which was behind his car and they searched the trunk and the inside of the car and found incriminating evidence.

I do not say that the search was invalid Your Honor.

Justice Hugo L. Black: What was there?

Mr. William K. Knudsen, Jr.: Sir?

Justice Hugo L. Black: What did they found?

Mr. William K. Knudsen, Jr.: They found burglars tools and they found coins.

The Shively was a collector of old coins and they found many of these coins in the car.

And --

Justice Hugo L. Black: They had been in the hardware store?

Mr. William K. Knudsen, Jr.: They had been in the hardware store, yes sir.

Justice Hugo L. Black: No doubt about that?

Mr. William K. Knudsen, Jr.: No doubt about it, Your Honor.

Justice Hugo L. Black: Did he testify?

Mr. William K. Knudsen, Jr.: Whiteley?

Justice Hugo L. Black: The defendant.

Mr. William K. Knudsen, Jr.: Yes, he testified.

And he said that he had not done it that his compatriot had had the car the night before and he had — didn’t know what had happened.

And his compatriot said they both had done it.

Justice Hugo L. Black: Somebody just put it in his car.

Mr. William K. Knudsen, Jr.: That’s what he says Your Honor.

Chief Justice Warren E. Burger: His co-defendant testified and adversely doing it, didn’t he?

Mr. William K. Knudsen, Jr.: Yes Your Honor, he did.

And Whiteley --

Chief Justice Warren E. Burger: Said that they have done the robbery together?

Mr. William K. Knudsen, Jr.: Yes Your Honor, he did.

A moment ago, I said I didn’t make any contention about the search.

If the arrest was lawful, I do not make any contention about the search.

Justice Potter Stewart: Well, don’t you have to contend that the search is unlawful here?

Mr. William K. Knudsen, Jr.: No Your Honor.

We feel that the arrest was unlawful and as a consequence, the search was unlawful because the arrest was unlawful.

Justice Potter Stewart: That’s what I mean.

Mr. William K. Knudsen, Jr.: Yes.

Justice Potter Stewart: You mean it’s really a fruit of an unlawful arrest as you have mentioned.

Mr. William K. Knudsen, Jr.: Yes your honor, yes.

But if the --

Justice Potter Stewart: That they arrest itself I supposed was cured and if any defect in arrest of the—in the arrest himself, let’s there had been no search and no seizure only what you say was an invalid arrest and then he was brought to trial and sufficient evidence was brought out to convict him, he certainly couldn’t get the conviction set aside.

Mr. William K. Knudsen, Jr.: Well, first of all I would say that Daley’s testimony is fruit of a poisonous tree, that was his co-defendant.

And that would certainly be enough to reverse this case.

But if they convicted him solely on other information or other data that they found at the scene and not on Daley’s testimony and not on anything they found on the car then I would say this whole case would not be here.

Justice Potter Stewart: But they did put an evidence what they found in the car.

Mr. William K. Knudsen, Jr.: Yeah, it certainly did Your Honor.

Justice Potter Stewart: And no room for harmless error?

Mr. William K. Knudsen, Jr.: Your Honor, with the burglar tools, with the coins which came from Shively’s Hardware, with Daley testifying, I think this case falls in the Aguilar, Spinelli etcetera cases that there was absolutely no harmless error here.

When the jury were faced with these facts.

The coins which Shively had been saving for years and Daley said, this fellow sitting here committed the crime with me, I don’t see, I don’t think we confine that Your Honor.

Justice Potter Stewart: What happened to Daley, did he plead?

Mr. William K. Knudsen, Jr.: I presumed he plead that he was not tried with Whiteley.

Chief Justice Warren E. Burger: Mr. Speight.

Argument of Jack Speight

Mr. Jack Speight: Mr. Chief Justice and may it please the Court, counsel.

I like to direct myself to several questions that the court has raised before I go in to discussion, my aspect of the case.

I might add that my good friend, the counsel here and I, he at the law school and I in the Attorney General’s office have been fighting this for four years.

We started with it at that first Federal Court level and have taken a right through and we’ve lost issues along the way and now we’re done with the real knob.

And we do have a great familiar work, familiar hierarchy with this case as this Court obviously by its questions.

But I would like to spend a moment on Justice Blackmun’s question because I think you put your finger right on the case.

We have consistently argued from all levels of the Court that we could care less about that arrest warrant that is quite immaterial to our proposition.

That we’re talking about whether or not there was probable cause to make the arrest and or the search.

The Judge Kerr, the Federal District Judge, brought the argument.

The Tenth Circuit Judge Hecky writing the opinion about the argument and now we’re here at this Court.

And Justice Blackmun, this is the key question as far as the state is concerned.

Whether or not there was probable cause, we think it’s quite immaterial whether or not there was effective arrest warrant and we go one step further.

I think you again diagnosed the case right on point when you say there were two complaints and arrest warrant’s issued.

One for the burglary of the rustic bar and the other which she was actually tried on the arrest of the hardware store.

Now, in Wyoming we currently have adopted the criminal rules of procedures which are patterned after the federal rules.

But at this time in Wyoming we were operating under some old statutes that are not unique or different throughout the country.

There quite somewhere to many other states.

And it’s simply this that a complaint is filed usually by a law enforcement officer.

Based upon that complaint and arrest and or search warrant is issued.

The arrest is made, an information is filed which is in lieu of the grand jury hearing.

At a preliminary hearing probable cause is determined and the sequence is immediately whipped.

Whiteley was arrested on the 24th of that evening. the next morning the arrest warrant and the criminal complaint were filed against him.

The information was filed and a preliminary hearing held before a magistrate in Rawlins, Wyoming determined whether or not there was probable cause.

The probable cause being found it was set for trial and again the jury found that there was probable cause beyond the reasonable doubt that he committed the crime.

Justice Thurgood Marshall: Well, when was the search before or after?

Mr. Jack Speight: The search was taken on the 24th sir.

It was, the facts were basically this --

Justice Thurgood Marshall: One thing in the record, that the time that the search was made other than the broadcast that the arresting officer had to operate them.

Mr. Jack Speight: Excuse me sir, I’m not sure I understand the question?

Justice Thurgood Marshall: Is the arresting officer and the service, if anything is substantial that at the time the search was made other than the broadcast.

Mr. Jack Speight: No sir, there wasn’t and we feel that --

Justice Thurgood Marshall: How was that search legal?

Mr. Jack Speight: Sir?

Justice Thurgood Marshall: Now is that search legal?

Mr. Jack Speight: Well based on the probable cause concept.

Justice Potter Stewart: What you’re saying in effect is that the arrest at least broadcast is in itself a probable cause.

Mr. Jack Speight: Yes it is Your Honor.

Justice Potter Stewart: What the underlying circumstances were at that time with respect to the law enforcement agencies on this particular government.

Mr. Jack Speight: I think you’re absolutely correct.

Justice Potter Stewart: That’s what the proposition is?

Mr. Jack Speight: Yes.

And --

Justice Byron R. White: Is that the critical proposition here that if an arresting officer lead through the radio that he is supposed to arrest a man, he can arrest them?

Mr. Jack Speight: That’s not the critical proposition Justice White, the critical proposition is whether or not there was probable cause --

Justice Byron R. White: Some American just --

Mr. Jack Speight: Yes and the probable cause existed as a record bears it out.

Justice Byron R. White: Now what was that?

Mr. Jack Speight: Well simply the fact of -- the particulars detailed in the police broadcast.

They were looking for a man, we described the man.

We’re looking for a car, we described the car.

We’re looking for certain stolen --

Justice Byron R. White: Well, you are saying that the probable cause, is that obtained in the police broadcast, that’s all the arresting officer did.

Mr. Jack Speight: Right, right.

Justice Byron R. White: Let’s assume that the officer looking out to broadcast himself at no probable cause to put it out.

Let’s just assume that.

Yet you would say that --

Mr. Jack Speight: No.

Justice Byron R. White: They couldn't describe themselves?

Mr. Jack Speight: No, no, I couldn’t say that in good conscience because that’s not the law.

Justice Byron R. White: And then what would -- you conceive that there must be probable cause in the police department that up the broadcast.

Mr. Jack Speight: No, I’m saying if it please the Court and in this reflected on one of the questions that Chuck Ogburn, the sheriff had probable cause.

He was the one to put up the broadcast.

Justice Byron R. White: All right and you’re saying -- and you concede that he asked some help?

Mr. Jack Speight: Yes.

Justice Byron R. White: All right, what was it?

What was this probable cause?

Mr. Jack Speight: The probable cause was the information that he had, that Whiteley had committed the crime or he felt he had committed the crime.

Justice Byron R. White: Well, Ogburn didn’t see or commit the crime?

Mr. Jack Speight: No.

He certainly --

Justice Byron R. White: And all he had is a telephone tip --

Mr. Jack Speight: Well, now this is where the record is void, Your Honor.

And this is the --

Justice Byron R. White: The record is what?

Mr. Jack Speight: Void -- this type of information.

Justice Byron R. White: Well I know but like what?

Mr. Jack Speight: And this is our argument.

See we’ve actually been relying, and it’s on Draper and other decisions of this Court that you can make a warrantless arrest if you have probable cause.

Now, if this late date we are going --

Justice Byron R. White: What about that?

But you have to have fact which shows --

Mr. Jack Speight: Yes, and we --

Justice Byron R. White: -- because one of the facts that Ogburn had which this record disposes from which we may make the inference that they add up the probable cause that --

Mr. Jack Speight: May I cite you record references if it please the Court?

Justice Byron R. White: It has been so found --

Mr. Jack Speight: Record 17, which is the Laramie police Department bulletin, record 31 which was --

Justice Byron R. White: What, what, what was that?

Mr. Jack Speight: Record 17 --

Justice Byron R. White: Is this the broadcast police?

Mr. Jack Speight: No, this is what was posted at the Laramie Police Department bulletin board.

Justice Byron R. White: Well, obviously, I am not that familiar with that state.

The arrest was made in what county?

Mr. Jack Speight: The Carbon County.

Justice Byron R. White: All right, this is the Laramie, this is --

Mr. Jack Speight: At Albany County.

Justice Byron R. White: No, Ogburn’s County?

Mr. Jack Speight: No, Sheriff Ogburn’s county was Carbon County.

Justice Byron R. White: It’s Carbon County, all right.

I’ve done a --

Mr. Jack Speight: No, I might be confusing the Court.

We ought to start on page 31.

Justice Byron R. White: That should be interesting.

Mr. Jack Speight: Let’s start on page 31.

This was the original instrument that got the whole thing in the process.

This was the original state item 881.

This was issued by SO, Sheriffs Office at Rawlins.

And the pertinent part is that paragraph.

Chief Justice Warren E. Burger: What page now?

Mr. Jack Speight: Page 31 sir.

Justice Byron R. White: Now, this is the broadcast Mr. Speight.

Mr. Jack Speight: Yes.

Chief Justice Warren E. Burger: Where is the warrant?

Mr. Jack Speight: Well --

Justice Byron R. White: I’m confused --

Mr. Jack Speight: This is the question --

Justice Byron R. White: -- in a sense that --

Justice Hugo L. Black: In response to this colloquy because I thought it matches the defined question.

You said the test of the validity of this arrest was the fact that the arresting authorities, what’s that county --

Mr. Jack Speight: Albany County in Laramie, Wyoming.

Justice Hugo L. Black: Acting on this police broadcast that was the probable cause.

And then it didn’t make any difference, so far as the validity of that arrest is concerned.

What state of the affairs was the county where the crime is committed.

In other words, to put it -- it makes no difference on your theory where there was any probable cause and the police officer Ogburn to arrest him or not.

Mr. Jack Speight: This was a fact determination made by the Wyoming Supreme Court and has been substantiated throughout, that the Laramie law enforcement officers had probable cause to make the arrest not only that but they had the duty to make the arrest.

So as to your question, yes, that’s correct sir.

Justice Hugo L. Black: And now you say to my brother White that you -- you think that there must be something in the way of probable cause in the part of the authorities who issued the broadcast.

Mr. Jack Speight: Well, I didn’t make the original case, the Wyoming Supreme Court although -- this is in the record and I don’t know what the Wyoming Supreme Court gaged its theories on except what they write and what they write --

Chief Justice Warren E. Burger: We really aren’t concerned what the --

Mr. Jack Speight: I know Your Honor.

Chief Justice Warren E. Burger: What this theory was -- we want to know what the facts are just hold it a minute now.

Mr. Jack Speight: All right sir.

Chief Justice Warren E. Burger: What was the probable cause that Sheriff Ogburn had on which he could have arrested this man that he saw him driving down the street, that’s what we want to know.

Mr. Jack Speight: In this the record is the void officer.

Chief Justice Warren E. Burger: Well, did he have the information that he included in the arrest warrant?

He had that in the application?

Mr. Jack Speight: Yes, he had that and he had the information that appears in the state item 881.

Justice Byron R. White: Was that a probable cause?

Mr. Jack Speight: This I don’t know.

Justice Byron R. White: You know -- I mean you know what was in the point?

Mr. Jack Speight: Yes sir, I do.

Justice Byron R. White: Was that detriment of probable cause?

Mr. Jack Speight: In my feeling, indeed sir.

Justice Byron R. White: Even though all that really amounts to is that he had word other that by his informant that this defendant does that job.

That’s all it was.

Mr. Jack Speight: Yes, that’s correct.

Justice Thurgood Marshall: Was this about the man in the car?

Mr. Jack Speight: Yes, it was sir.

Justice Thurgood Marshall: Do you had an information, how far was he away?

Mr. Jack Speight: At that time, how far was the petitioner, the defendant away from --

Justice Thurgood Marshall: Yes.

Mr. Jack Speight: They didn’t know.

They knew he was in the Saratoga, Wyoming or Laramie, Wyoming area which is about 50 miles apart.

Unknown Speaker: Is that information set out by the sheriff?

Mr. Jack Speight: Yes sir.

Unknown Speaker: Does the record show where he got this information?

Mr. Jack Speight: No, it doesn’t sir.

No, it doesn’t.

Chief Justice Warren E. Burger: And the defendant did not ask or cross examine and undertake to find out where he got the information?

Mr. Jack Speight: No, he didn’t.

Justice Byron R. White: (Inaudible)

Mr. Jack Speight: It’s the state’s burden.

No question about that.

Justice Thurgood Marshall: Suppose the broadcast has been charged Whiteley and it really was terrible and the John Whiteley's car, --

Mr. Jack Speight: No, I wouldn’t.

Justice Thurgood Marshall: But it came out of the broadcast?

Mr. Jack Speight: No, that doesn’t make it good.

That might give a law enforcement officer a defense in a civil suit on false arrest but that doesn’t necessarily make it good.

The reason in this case that we only -- not only did we name the defendant, we gave the description of his height, his tattoo marks, the law enforcement officer has said and it’s in the record that they knew what Whiteley looked like, one of the arresting officers, so they knew who they were looking for.

Chief Justice Warren E. Burger: Well Mr. Speight doesn’t the case has come down to this that if Sheriff Ogburn had probable cause to arrest, he can authorize anybody in the United States to make the arrest?

Mr. Jack Speight: That’s correct.

Chief Justice Warren E. Burger: If he didn’t have probable cause, he hasn’t any authority to give to anybody.

Mr. Jack Speight: That’s’ correct sir.

And I’m somewhat apologetic because I don’t feel I've answered possibly your question or Mr. Justice White’s question on this.

Justice Potter Stewart: Well, I’m -- I agree with the importance to justices questions that we really are interested in what probable cause Ogburn had that if the record doesn’t show probable cause for his putting out the broadcast of what are we to do?

Mr. Jack Speight: Well, we’ve got to make a determination in the state fields that there is probable cause in the record when you read it.

And you read it in light of the cases of this Court.

Justice Hugo L. Black: We seem to be addressing everything here except whether he is guilty.

Mr. Jack Speight: Well there’s no question in my mind about that Mr. Justice Black and I think you’ve got your finger right on.

Now if I can go one step further Justice White and this maybe some assistance to you in terms of the probable cause, I would like to offer the Court an alternative.

And this is in the area of the case that --

Justice John M. Harlan: Now we are interested what the board meant?

Mr. Jack Speight: Yes, we are Mr. Justice Harlan but I strongly feel that the Fourth Amendment is not an absolute amendment.

It does have some limitations based on reasonableness.

Now on the case of Chambers versus Maroney which was written after the state's brief was submitted, after the state’s brief was printed.

This was a moving vehicle.

They stopped the moving vehicle.

They got out, they placed the defendant and his accomplice in the backseat of the police car which was parked right behind the moving vehicle and that --

Justice Byron R. White: And that you know the Chamber has made it very expressive although you might not need a warrant to search the car --

Mr. Jack Speight: Yes sir.

Justice Byron R. White: And we get back again to what --

Mr. Jack Speight: To the key question.

Justice Byron R. White: What probable cause the officer had.

Mr. Jack Speight: Well, Mr. Justice White analyzing this case, I’ve looked at a case of this court where there was not probable cause that was the Beck case.

And I feel that we have a better record than they had in Beck.

And based on that, I feel we have probable cause in this record and only this Court on an independent determination of the record can justify whether or not --

Chief Justice Warren E. Burger: Well, what you are trying to tell us is brief, in a nutshell, how and why Sheriff Ogburn could have arrested this man, Whiteley if the Sheriff upon looking out the window of his office saw Whiteley standing on the street corner.

That is after Whiteley got the information that he received for the application for warrant.

You have to say that Ogburn could have gone out on the street corner and arrested him.

Now what is the basis for that?

Mr. Jack Speight: Well, unfortunately in probable cause cases, the issue usually isn’t raised until we are somewhere down the road beyond the trial level or beyond any evidentiary hearing level.

Now, I know things beyond the record of which we can’t go into today that in my own mind, at least I know that was probable cause but over and above that what is in the record.

The record is that a person told Sheriff Ogburn that he had -- that he believed why he made the arrest or performed the burglar.

There was a general rash of burglaries in the area. Small counties being what they are.

There was not many suspects that you have to have to key in on.

You can usually eliminate it down to one or two.

In this case, they eliminated it down to one or two and of course as Justice Black said there was the counter band, there were his finger prints.

There were his accomplice’s words in the record.

All before the illegally seized evidence was introduced in the testimony.

And it’s a totality of the circumstances as the Draper case said probability is that there was probable cause.

An RPM standard could be applied to this case and a law enforcement officer could make the arrest.

Chief Justice Warren E. Burger: So you take the position that if he wanted to challenge the informant that was the burden of Whiteley at the time of the trial to insist upon protection of that informant?

Mr. Jack Speight: Absolutely, absolutely.

Chief Justice Warren E. Burger: You say that he waived that right by not moving.

Mr. Jack Speight: Yes sir.

Chief Justice Warren E. Burger: And even though it’s a constitutional issue?

Mr. Jack Speight: Yes sir.

This again goes into a whole new realm of jurisprudence of what can be waived and what cannot.

But at this late date, it certainly puts a handicap on law enforcement and those are on behalf of law enforcement to reconstruct something that we don’t have an opportunity to make an evidentiary record on.

If this Court is inclined in this area, give us one shot of an evidentiary record back in Federal Court we’ll get Chuck Ogburn understand, we’ll get Judge Castle JP understand, then we’ll develop the record as to whether or not what went through their minds.

Justice Byron R. White: Was that anymore than this if you lost this case you can still proceed against them I suppose.

Mr. Jack Speight: Yes sir, he -- there are several area.

Justice Byron R. White: How about a trial with the --

Mr. Jack Speight: It was about --

Justice Byron R. White: About an hour or so --

Mr. Jack Speight: Mr. Justice White it was about a days trial, little over days trial as a matter of fact.

And I might add, I get very competent counsel at the trial level.

The facts have changed.

The law has changed since ‘64.

This is really what we’re talking about.

And we get in the final analysis, if we set through fascinating argument yesterday on the civil liability of a law enforcement officer and I think this is what we’re -- we’ve got to keep our eye on the rabbit.

If we’re going to protect the rights of the individual which is imperative that we do that we not isolate an arrest because when you look at the whole spectrum of criminal law, we are talking beyond the arrest, we’re talking of preliminary hearing, we’re talking about trial and with the (Inaudible) at this Court in the last three or four years, due process is provided to defendant and we can isolate the arrest from the trial.

At least I can in my rules and that if really we feel that people are being arbitrary law enforcement officer, being arbitrary in the final analysis when civil liabilities – tort liabilities are filed against false arrest, this will make the leaders out.

Justice Byron R. White: Well I think it should be making the same argument here if Ogburn had heard about burglaries and said well there are only two people in this whole area that I suspect of this crime.

Mr. Jack Speight: No.

Justice Byron R. White: So, I’m going to put out on the broadcast to arrest them both.

Mr. Jack Speight: No.

Justice Byron R. White: Why wouldn’t you?

And they arrested them, he was dead right.

They found in his car the evidence.

And they convicted him.

Mr. Jack Speight: I think probable cause means little more than a gut suspicion if you will sir and so on and so --

Justice Byron R. White: Well, I suggest that you told this is not much different and hypothetical --

Mr. Jack Speight: No, it’s not much but in my mind --

Justice Byron R. White: Well how much to --

Mr. Jack Speight: A quantum enough to meet probable cause.

Justice Byron R. White: What you told us was in a small county, you isolate, you can put your finger on two or three people.

Mr. Jack Speight: I say that --

Justice Byron R. White: And the thing looked as all one of them and someone called up and said this was the guy.

So he arrested him but at the broadcast and the rest of it what you told.

Mr. Jack Speight: My question then would be what more is really needed and I guess that’s my word here.

Justice Byron R. White: Well, one of Mr. Ogburn step, it is – goes to him and says there has been a robbery here to this tavern, and I think there are only two fellows in town and that really have done that and Ogburn as I agree with you, arrest them.

Mr. Jack Speight: Well this maybe deviating a little but I hope we haven’t’ gotten to the point that we can’t -- we cannot –- that we’ve tied the hands of the law enforcement officer so we can’t go in and make investigative type discussions.

Justice Hugo L. Black: Well, what you really have Mr. Speight, it was a burglar.

Was it committed at night?

Mr. Jack Speight: Yes sir.

Justice Hugo L. Black: What time.

Mr. Jack Speight: After 10:00, so reveals the record.

Justice Hugo L. Black: Laramie county it’s all of information, all we have to know that some men whose name he knew had tattoo mark was there, he sends out a note and goes out.

The man from the automobile gets arrested.

The question is who gives that information, probable cause so that you can defend it, and it's not only said to be probable cause but they find the things that were stolen --

Mr. Jack Speight: That’s correct sir.

Justice Thurgood Marshall: You don’t need any more probable cause or that is not on the --

Mr. Jack Speight: Well, it depends on what was in the call Mr. Justice.

Justice Thurgood Marshall: (Inaudible)

Mr. Jack Speight: But I think we have to --

Justice Thurgood Marshall: Does the sheriff doesn’t know who is telling him anyway.

That gives not in the right to investigate, not a right to give a order, who gives them the right to arrest and search on an anonymous call?

Mr. Jack Speight: Well, I think the hypothetical goes beyond that, it can be anonymous call Sheriff, Harold Whiteley just did something.

Sheriff, Harold Whiteley did something--

Justice Thurgood Marshall: How about this case, so far as I know its anonymous.

Mr. Jack Speight: That’s right, that’s right it is sir.

Justice Thurgood Marshall: (Inaudible) that’s not enough to me, it's not fulfilled, that might be an insane person.

That might be a criminal.

(Inaudible) bear in mind, that goes about the right to investigate, I’m talking about the right to pick the man up off the street and search him all -- you say that’s the probable cause sufficient for arrest.

Mr. Jack Speight: No, I don’t.

I’m saying the record that is before this Court, I’m convinced in my own mind that after reading the record that there was probable cause.

Justice Thurgood Marshall: Well did you base that down the coin?

Mr. Jack Speight: No, no.

That’s beyond that.

Justice Thurgood Marshall: That his fingerprints came about?

Mr. Jack Speight: No, that’s beyond it.

When you -- when you detail a man with particularly the type of the car he was driving or what will be in the trunk of that car that to me is probable cause.

Justice Hugo L. Black: Suppose you forget the integrity and not -- what you have is you know from what you find, what has been given or insane, or crazy of whom, that is given by somebody who knew about the car and they go and find their things have been stolen, does that make any difference?

Mr. Jack Speight: Yes, it certainly does.

In the sheriff’s subjective analysis and unfortunately at this point of our records to avoid of this but we have -- we can speculate from the record that this is what happened.

Yes sir.

Chief Justice Warren E. Burger: When you were before Judge Kerr in the Federal Court on the habeas corpus proceeding, was there any question raised about the identity of the informant’s in an occasion to go in to that?

Mr. Jack Speight: No, there wasn’t sir.

Chief Justice Warren E. Burger: So what you’re saying now that you would like an opportunity to please go back before Judge Kerr and have the sheriff try to elude that the informant was a man whom he trusted and who gave him detailed information and I’ll put that in the record.

Mr. Jack Speight: If I can address myself to this point.

When we were in Judge Kerr’s Court Mr. Chief Justice, we had six issues before us.

Of the six, I think in all fairness both counsel and I put that somewhere down the priority scale.

We were more concerned with being tried for double jeopardy and this several other legal issues which we spent great time in oral argument and secondly there was limitation of time and we were really acting in reliance upon lower court decision and upon this Court's decision as to probable cause.

And Judge Kerr bought this, he put it in a specific finding in his record which he does a nice job at on page 81, Judge Hickey picks this up of page 91 of his appellate brief.

And if there was error involved here, it was on the states acting in reliance upon prior Supreme Court decisions that we felt in our mind that was probable cause.

If this would have been the only issue before Judge Kerr and this what have sunk or floated our lawsuit.

I can guarantee we have to develop a record at that stage.

But quite frankly I didn’t feel that it was that an important of an issue of some other issues that had been on this case.

Justice Hugo L. Black: Was your sheriff protected?

Mr. Jack Speight: Yes he is sir.

Justice Hugo L. Black: Does he have a bond?

Mr. Jack Speight: Yes he does sir.

There’s no further questions, I thank the Court for their attention.

Chief Justice Warren E. Burger: Mr. Knudsen, I observed in here, in the record that this man had served six penitentiary sentences for various things and that his prior convictions are what led to life sentences and habitual criminal.

Rebuttal of William K. Knudsen, Jr.

Mr. William K. Knudsen, Jr.: Yes sir.

Chief Justice Warren E. Burger: I suppose as a practical matter, that explains why the case is here.

Mr. William K. Knudsen, Jr.: I think so Your Honor.

We in a Defender Aid Program like to get involved in naughty questions but we don’t take merely academic questions.

If Whiteley had been released two years ago and so I don’t think we’d be here today.

But it’s mandatory.

The life sentence is mandatory in Wyoming if you are convicted as an habitual criminal.

Chief Justice Warren E. Burger: And how many convictions does that take -- how many prior?

Mr. William K. Knudsen, Jr.: I think it takes three Your Honor.

Chief Justice Warren E. Burger: Three.

Mr. William K. Knudsen, Jr.: He had more than three.

I -- may I proceed Your Honor?

I would like to make a couple of points here.

I think in the heat of the argument my good friend Jack Speight said something which is not completely accurate on the fingerprints.

On page 54 of the appendix Ogburn was asked if he had taken any fingerprints and he said no.

He couldn’t get any fingerprints of any kind and I just think that was one of the things made the heat of the battle.

I would like to address myself to the Draper point if I may.

There is absolutely nothing in the record to show that anything except that there was a tip, there’s nothing in the record to show that the tipster told Ogburn that he saw that he recognized a man with a tattoo on his arm and so on.

All we have is that the tipster told him, Whiteley did it, and I submit to the Court in the absence of this information.

The absence of this on the record, I think we must make the assumption that then Ogburn said, “well I know, I know Whiteley well, he is six feet tall, he’s 47 years old,” etcetera, etcetera, and he put this out.

Now I say I’m making an assumption.

But I think the other assumption is equally bad to say that the tipster gave them this information about Whiteley.

We don’t know and I say they have the burden of proof and therefore they haven’t’ proven it.

Chief Justice Warren E. Burger: Well, Mr. Speight argued among other things that when this issue was up, it was not challenged and that therefore you have waived the infirmities and probable cause by not pursuing – this is not mine -- I’m not advancing that, I’m asking you to respond to that argument.

If you have waived that --

Mr. William K. Knudsen, Jr.: I don’t think there was a waive.

You mean in the original proceeding number 2885 once the -- attorney for Whiteley said, “How did you get this information?””

And he said, “I got if from a tip.”

He should have pursued it.

I -- each attorney practices differently.

I think I would have pursued it.

In fact, I would have probably filed a motion to suppress in the first place.

But once this occurred I would have gone into it to find out where he got it, who the informant was, ask the Court to make him tell us who the informant was, was he reliable, etcetera, etcetera.

This did not occur.

Chief Justice Warren E. Burger: The absence of a motion to suppress has deprived the Trial Court right from the beginning of an opportunity to pass on this question at the time when it could have been passed on.

Mr. William K. Knudsen, Jr.: Yes Your Honor but I think that if a lawyer does fail to move to suppress that he perhaps can raise this at the trial level with the Court’s permission.

I know some Courts, I was a U.S. attorney once, assistant U.S. Attorney at one time and on occasion I would have fit when the judge would permit this at the trial when the no motion to suppress had been made.

And I think here, it could have been raised at the trial if the Court permitted and he permitted those questions was how did you get the information?

I got if from a tip.

And then the whole thing died and they --

Justice Byron R. White: Was there an objection to the evidence on trial?

Mr. William K. Knudsen, Jr.: Yes there was an objection to the evidence, yes.

On the grounds that it was an illegal search and seizure.

Justice Byron R. White: And I gather under Wyoming procedure, this maybe raised by objection to the evidence of the trial even though no motion to suppress is made before the trial.

Mr. William K. Knudsen, Jr.: I believe so Your Honor.

The rules were changed and I actually never tried any cases in Wyoming but -- nothing, there was no objection by the county attorney to the objection by the defense attorney.

Justice Byron R. White: In other words, opposition to the objection was not made on the ground that no motion to suppress had been made before the trial.

Mr. William K. Knudsen, Jr.: Right, Your Honor.

Now --

Justice Byron R. White: And once they said -- once he got brought out that was from a tip, he had negative personal knowledge on the part of the officer.

Mr. William K. Knudsen, Jr.: Once he asked him if it came out by a tip, the matter was just dropped.

Nothing else was asked.

Justice Byron R. White: Isn’t that enough?

Mr. William K. Knudsen, Jr.: I think --

Justice Byron R. White: Is that enough for that defense to --

Mr. William K. Knudsen, Jr.: I think so Your Honor.

I think at that point the county attorney then has to say --

Justice Byron R. White: Would you have gone to ahead and build the state's case on?

Mr. William K. Knudsen, Jr.: If I had been the county attorney then I would have certainly proven that there was a reliable informant etcetera.

I would like to say just on this Draper question that I have set it forth in my reply brief but two things about Draper: One, Draper was a reliable informant.

We had a reliable informant there.

We do not have that here and I think for that reason Draper falls.

Secondly, in the Spinelli case, Mr. Justice Harlan says and I’m quoting from page 11 that it is especially important that the tip described the accused criminal activity insufficient detail so the magistrate may know that he is relying on something more substantial than a casual rumor circulated in the underworld or an accusation based merely on an individual’s general reputation.

I really think we have got a reputation case here because everybody in Wyoming knew that Whiteley was -- had four, five convictions.

And I think what’s done him in.

Justice Hugo L. Black: Don’t you think somebody had told the sheriff something about him?

Mr. William K. Knudsen, Jr.: Oh yes, I don’t say that sheriff was perjuring himself.

I’m sure somebody told the sheriff, maybe Whiteley was in Saratoga.

I think that would be enough in Saratoga, small town of 2000 people.

If a burglary occurred, Whiteley was there, that might be planning.

In fact, I don’t know but I would assume that’s just what happened.

And then Ogburn went back and said let’s see, Whiteley is six feet tall, has a tattoo on his left arm, graying hair etcetera, etcetera and he put this out on the radio broadcast.

Chief Justice Warren E. Burger: And he might have added that you will find the stolen coins --[Laughter]

Mr. William K. Knudsen, Jr.: I’m sure that that was added Your Honor.

One final point, we stipulated to the record in this case at the lower court, admittedly there were other questions.

This question always was in the case.

We had questions of exhaustion of state remedies and so on and Judge Kerr was more interested in those.

But this question was in the case and he adopted the Wyoming Supreme Court attitude or decision on it and so the defense circuit.

But if this Court should feel that a reversal is proper, I do not think it should be sent back to the District Court to have another hearing.

We had our opportunity to have a hearing.

We stipulated to the facts.

Whiteley has been in jail since November 24, 1964.

I think that he should have been dismissed.

And in 1965 at the trial or in a motion to dismiss -- motion to suppress and I don’t think we should send this back when a man’s liberty has been handled this way over this many years.

Justice Byron R. White: Well, if you win, this case would just be reversed --

Mr. William K. Knudsen, Jr.: In my opinion Your Honor, if this case is reversed and sent back to Rawlins, the county attorney will have to see what evidence he has.

As far as I know the only evidence he has is the other goods, the fruits that he found in the car and Daley’s testimony.

Justice Potter Stewart: Well I gather the form anyway if you prevail would be to send it back to District Court.

You give the state an opportunity to put him -- give another trial or else police them, is that it?

Mr. William K. Knudsen, Jr.: Well, I think it should be sent back to the District Court and the District Court should be ordered to send -- to order a new trial in the state court.

I don’t think --

Justice Potter Stewart: Ordinarily, I think the form is it goes, this is federal habeas it goes back to the District Court with the instructions of the District Court to give the state a reasonable opportunity 30, 60 days whatever it is to bring and give him a new trial or else to release him.

Mr. William K. Knudsen, Jr.: Oh to give him a new trial or release him, yes.

But I don’t think we should rehash all the facts in the District Court again Your Honor.

As far as if we go back ultimately to Rawlins, to the Carbon County Court, I think the county attorney has two things, what he found in the car and Daley.

I think they are both fruits of a poisonous tree and I think you have to dismiss it.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.