COOLIDGE v. NEW HAMPSHIRE

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Argument of Archibald Cox

Chief Justice Warren E. Burger: We’ll hear argument next in Number 323, Coolidge against the State of New Hampshire.

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

Mr. Archibald Cox: Mr. Chief Justice, may it please the Court.

This is a first degree murder case here in forma pauperis and certiorari to the Supreme Court of New Hampshire.

Two constitutional questions are presented, the first is whether a search warrant issued by the Attorney General of the state upon the un-sworn reports, oral reports of his subordinates, while he is in active charge of a criminal investigation and when he will actually himself lead the prosecution, is a valid search warrant for the purposes of the Fourth and Fourteenth Amendments, and of course we submit that it plainly is not.

The second question which relates to an entirely different incident so that we may win on either ground.

The second question is whether a wife’s acquiescence in the taking of her husband’s personal belongings will validate what otherwise is an unconstitutional search and seizure in violation of the Fourth Amendment, Fourth and Fourteenth Amendments as this being a state case.

These two questions are better understood if I outline the salient points concerning the case.

On January 13, 1964, a young girl Pamela Mason left her house in Manchester, New Hampshire on a baby sitting assignment.

She disappeared, eight days later, her body was found by the side of the Principal Interstate Highway leading south.

The state’s theory later became that she had been shot by a 22-caliber Mossberg rifle, also, her throat had been cut with a knife and that the body had been dumped there about 9 o’clock or 9:30, perhaps that same evening when it was covered by an unusually heavy snow storm and then after a rainstorm eight days later became visible.

This was a disappearance and crime which excited enormous attention in Manchester and indeed through the State of New Hampshire.

At the time, the police broadcast appeals for people to come forward with the names of anyone who were out of the house that evening and eventually one of petitioner’s neighbors reported to the police that he had been out of his house that night and they went to the house on January 28, police, two of them and questioned him about his whereabouts.

He gave an explanation which unfortunately for him later turned out to be false.

He also showed the police some guns that he had in the house at that time, spoke to them very freely and they asked him if he would be willing to go up to Concorde to the headquarters of the state police to take a lie detector test, he said that he would and since he was working as a bakery truck driver, asked that it be on his day off Sunday.

Then on Sunday, February 2, they did indeed go up to the state police headquarters and he took the lie detector test which produced no affirmative indication if his guilt, but at that time he did admit that he had embezzled a small sum of money from his employer.

When they went back to Manchester, he was questioned late into the night by the police.

He was not actually arrested in a formal sense till after midnight but the trial judge found that he would not be permitted to leave at any time after they had returned from Manchester -- from Concorde.

The first search and seizure of which we complain occurred on that day February 2, while petitioner was in custody at the Manchester police station, two different officers who had never been to his house before went to his house and with the acquiescence of his wife Mrs. Coolidge obtained his guns and clothing and took them away.

Chief Justice Warren E. Burger: Were these the same things, the same guns that the police had seen before?

Mr. Archibald Cox: These were the same guns the different police had seen before and there’s no indication that these two men had any information about what had happened before.

Chief Justice Warren E. Burger: Did the wife at this time know that her husband was at least in the company of police and have been for a couple of hours?

Mr. Archibald Cox: Yes she did and I thought it would be convenient Mr. Chief Justice if I’m going to argue the question about the Attorney General’s warrant first and I thought it might be convenient if I refrain from stating the facts about this search which --

Chief Justice Warren E. Burger: I know.

Mr. Archibald Cox: -- took place chronologically first until I come to what will be the second branch of my argument and then I will address myself to the specific questions that you mentioned.

The second -- so I say petitioner was held at the police station, he was held overnight on this larceny charge and then he was released on his own recognizance.

So that he was not imprisoned during the ensuing weeks.

The second search and seizure occurred some weeks later on February 19, you see almost three weeks after the first.

Attorney General Menard who had taken active charge of the investigation in prosecution, called a conference in his office in Concorde for the purpose of reviewing the evidence that had best far have been developed.

There were president, representatives of the Manchester police and the state police and two Assistant Attorney General.

Those officers presented to him what their investigation had revealed presenting it, the trial judge explicitly found to him in his capacity as the chief prosecuting officer of the state of New Hampshire.

Justice Byron R. White: Mr. Cox, incidentally, is there a transcript of what took place at that meeting in the AG’s office?

Mr. Archibald Cox: No, there was no record made of that and none of what was said was under oath.

Police Chief McGranery did testify during the trial on voir dier concerning what took place but there was no record and as I say it was not under oath.

This was just I think quite genuinely, subordinates reviewing with the chief investigator and later prosecutor what they’d been able to develop.

Then at the end of that conference after about two hours, we know from Chief McGranery’s description, he asked for an arrest warrant and four search warrants against the petitioner and the Attorney General having a commission as justice and peace, took Chief McGranery’s oath to the complaint and then he himself issued the five warrants.

One of which we’re concerned with here, the warrant for an old Pontiac automobile.

Justice Hugo L. Black: Does the Attorney General ordinarily have a commission as justice in peace in New Hampshire?

Mr. Archibald Cox: I don’t -- I know that he -- that Mr. Menard did, I suspect that others did, New Hampshire have an extraordinary practice at this time, Chief McGranery testified that they never went out of the police department to get a search warrant, they just had the inspectors and captains, old commissioned justices of the peace, he testified this.

And that is not, I don’t want to overstate it, that is not the practice today because the statute has been changed but it was a settled practice at this time so this wasn’t denied, it happenstance apparently.

'That evening, --

Justice Byron R. White: Mr. Cox, do I understand there is no challenge to Mr. Coolidge’s arrest here?

Mr. Archibald Cox: I don’t think it makes any difference here, there was a challenge to Mr. Coolidge’s arrest.

It’s very clear in the headings to petitioner’s brief and the New Hampshire Supreme Court.

That they challenged the arrest warrants on the same grounds as the search warrants.

It’s one of the black letter head things but as far as I can see it does not make any difference to our contention in this case.

Justice Potter Stewart: Both branches of your argument, your entire argument of course in this case depends upon the continuing validity of the exclusionary rule, does it?

Mr. Archibald Cox: Oh yes, yes, I assume that and hope that I may.

I -- that evening, the petitioner was arrested in his house pursuant to the arrest warrant, or an hour and a half or two hours later, the Pontiac car was towed to the police station.

It was searched the next day and then again a year later.

The search is important without going into the details because in the course of vacuuming the car, the police obtained tiny particles and later examined under a microscope which an experts sought to associate with particles that they said were substantially similar taken from the clothes of this unfortunate girl.

And the expert testimony was that there was some extraordinarily load, a high degree of probability that the body must have been in the car.

This I would say, this evidence of which the Court first refused to suppress on our motion before trial and which was admitted over our objection pressed all the way through the trial an on appeal, was very essential to the prosecutions case.

This is not conceivably a case where you could say that this was harmless error within this Court’s rule.

Indeed, the Supreme Court of New Hampshire noted three or four or five times the very dubious character of the evidence against the -- of the proof against the petitioner in this case.

On 265, it says the proof was not wholly free from weakness, then it speaks of how the limitations of time cast out on the state’s theory and how further doubts were cast by certain other evidence and how the ballistics evidence blow up to put it colloquially in the state’s face during the trial.

So that this, I’m simply emphasizing the importance of this question.

Now, our first contention here is basically a very simple one --

Chief Justice Warren E. Burger: Well, would it make any difference to your case whether the evidence obtained in this way was weak evidence or strong evidence?

Mr. Archibald Cox: No, I was simply negating any possibility that the rule, it’s the case decided the same day as Cooper in California, I can’t think of the name of it now, could be applicable here.

That is that it was harmless error.

I think that isn’t true and I do emphasize that this was a very close case on the trial so that this evidence, --

Unknown Speaker: Capital.

Mr. Archibald Cox: Was important capital, that’s right, was important to the prosecution.

Now our first and primarily contention as I say, is that the admission of evidence obtained under the search warrant violated petitioner’s constitutional rights because the warrant which is issued by the Chief Prosecutor instead of a neutral and detached magistrate.

And I need hardly remind the Court that it has said over and over again since Johnson against the United States, Mr. Justice Jackson’s opinion that one of the indispensable conditions to a valid warrant is that the inferences from the facts which lead to the complaint be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

The closest case unquestionably is Mancusi v. Deforte where the Court dealt with a subpoena duces tecum that had been issued by the District Attorney in New York and Justice Harlan in writing the opinion considered whether this would be – whether the evidence would have been admissible if the subpoena could be treated as a search warrant.

And he said no and there was no dissent on that point in the Court because the District Attorney was not a detached and neutral officer.

Now, the state replies that Attorney General Menard before he signed the warrants took off his black prosecutorial hat and put on his white justice of the peace hat.

We think that that purely formal step did not, indeed could not confer on him a neutrality.

A disinterestedness under these circumstances.

He was I say inactive charge of this prosecution.

He was the man that the press had been badgering for days.

Justice Potter Stewart: He was the Attorney General of the state?

Mr. Archibald Cox: Yes, and he was inactive --

Justice Potter Stewart: Right.

Mr. Archibald Cox: -- but I would emphasize too he was inactive charge and he l for the prosecution at the trial.

He --

Justice Potter Stewart: That he filed the case?

Mr. Archibald Cox: Yes, yes.

He had promised vigorous, ruthless investigation.

Just four days before he signed the warrants and the banner headline was Menard has suspect.

He was thoroughly wrapped up in the investigation and its success.

Now, I don’t direct this at him personally, as a matter of fact, I know him and have a high regard for him but it’s beyond any man's human capability to be neutral and detached under those circumstances.

Justice Potter Stewart: Was there -- do you challenge the existence of probable cause for the warrant?

Mr. Archibald Cox: We don’t argue that.

It has been argued in the courts below, I’m prepared to assume that there was probable cause here.

Justice Potter Stewart: And would you say that the invalid warrant would have prevented the police who had probable cause to search the Pontiac that the invalid warrant would have prevented him from searching it if they had found it in motion on the highway?

Mr. Archibald Cox: Well, I would raise a question and do raise a question whether where the police rely on the warrant and they do not assert any exigent circumstances, where that matter really is not looked into in the court below.

I would suggest that under Giordenello against the United States, the shift in claim is not available here but I would -- I’d go on Justice White and I was about to deal --

Justice Byron R. White: Yeah.

Mr. Archibald Cox: -- with the three other grounds that the state invokes here, apart from the warrant because I do have to speak to.

And one is the line of cases beginning with United States against Carol and ending with the Courts opinion which you’ve delivered in Chambers and Maroney.

I say that those cases are entirely distinguishable.

It’s one thing for the police to stop a car in motion on the highway when they have probable cause to believe that the driver is either carrying contraband or fleeing the scene of a crime.

It’s quite another I submit to go to a man’s home and to search about in an automobile parked in his driveway which is not in motion and its not about to be in motion.

Justice Potter Stewart: On what basis do you say it’s not about to be in motion?

Mr. Archibald Cox: Well, in this case, of course he was in the custody of the Manchester police.

Justice Potter Stewart: Well, I know but I suppose other people in his family had access to --

Mr. Archibald Cox: Well, what I meant was that there was no evidence that it was about to be put in motion, there was no indication of an exigent circumstance.

I think the burden is on the police, if they are seeking to shove and that there are some reason for not getting a warrant which they can hardly do here where they’d gotten the warrant that very day and taking the time to do but I think the burden generally speaking is on the police to show some exigency.

Now, if you got the car going carrying contraband with somebody who’s engaged in that, you have some reason to think you should act quick but I see no reason at all candor --

Justice Potter Stewart: But of course he has --

Mr. Archibald Cox: -- and no way if you say --

Justice Potter Stewart: You stop the car, Mr. Cox when you stop the car on the highway after it’s in motion where you can always immobilize it and wait for a warrant?

Mr. Archibald Cox: Well, yes of course that was what divided the Court in Chambers and Maroney, but at least there, one was able to say, well, what’s the difference between searching it then and there and taking it down to the police station and searching it later at the police station.

I’m not making anything turn on the fact that this car was not searched until the next day or until a year later.

I make nothing about.

I disclaim any emphasis on that.

I make a great deal of the fact that this was not incident to the arrest because the petitioner had been arrested an hour and a half or two hours earlier and was in custody at that time and I make a great deal of the fact that the car was not stopped under circumstances indicating that if you took time to get a warrant, you might miss your chance to stop it and search it.

Indeed, --

Justice Potter Stewart: Was the car itself was in one of these search warrants?

Mr. Archibald Cox: The car was described as the container of the things that were being sought.

Justice Potter Stewart: In the affidavit?

Mr. Archibald Cox: Yes, it was not described as the object to the search.

Indeed, I think that it indicates the police weren’t really interested in the car except as a container or vehicle.

And I would suggest perhaps I can put the point by oversimplifying it most dramatically.

I don’t see the difference between searching for this object in that car parked in a man’s garage and saying that you don’t have to get a warrant to search for it if this is on the bench in the garage or if it’s in an office in the house or in the bedroom.

It’s really just as movable.

Justice Byron R. White: (Inaudible)

Mr. Archibald Cox: No, Carrol involved stopping the car on the highway when it was in motion and the contraband was being carried.

And the language in Carroll is very explicit on that point.

The Chief Justice Taft doesn’t it spoke of a right of free passage except under these circumstances, he was talking about people that are moving, things that are fleeting as your honor put it in Chambers and Maroney.

Not about something which is simply a container at the man’s house.

I press again, if what one is thinking about it is a small chapel, what difference is there today between saying it may disappear because its in the glove compartment in a car that is parked by house and saying it may disappear because its out of bench in the barn or is in an office in the building, where it could just as readily be put in the car and carried away.

I submit that once Your Honors stepped over this line, the whole trend of law of searches and seizure which encourages better police work and puts a disinterested magistrate between the police and the citizen would virtually begun I submit.

I’ve always skeptical students who parade horribles to me but it does seem to me that that would be true in this case.

Chief Justice Warren E. Burger: Mr. Cox, did I understand you to concede that had this application for a warrant been presented to a classically neutral magistrate?

Mr. Archibald Cox: I said I wasn’t, but I didn’t think I had to dispute that part and I would point out Mr. Chief Justice that from Silverthorne Lumber through (Inaudible), this Court had consistently held that the fact that you might get a search warrant the right way will not excuse a search and seizure made without a warrant or upon an invalid one.

And of course the reason is clear, if the police could justify by saying well, we could have gotten the warrant the right way, we could have gotten the neutral man to sign this.

In the first place there’s always a little bit of uncertainty or speculation after the event.

But in the second place, the whole reason for the exclusionary rule would be undermined because they would always come to Court later and defend it if they could.

This was covered again in Mancusi and DeForte and the opinion quotes similar language by Justice Holmes of the Silverthorne Lumber case.

Chief Justice Warren E. Burger: I’m not sure it was relevant, I couldn’t recall the context in which you had mentioned in this.

What I recall now it was a response to a question, you didn’t volunteer the point about the --Coolidge against the State of New Hampshire.

Mr. Archibald Cox: Whether I argued it?

Yes, but I don’t stress the point, I don’t want to conceal the facts that I don’t stress it, we don’t volunteer that there was a probable cause.

I don’t know where it was it not, but I’m not making any claim about it.

Chief Justice Warren E. Burger: I was not suggesting it was relevant.

Mr. Archibald Cox: Right.

Now, I think I should go on to the other and more difficult theoretically more difficult issue in the case which is the effect of the wife’s consent to the taking of the 22-caliber Mossberg rifle and some clothing from petitioner’s closet, bedroom closet.

Very briefly, the facts were these.

On that evening on February 2 while he was being detained at the police station, --

Justice Byron R. White: Mr. Cox, before you go to February 2nd, could I ask you about January 28th?

Was Mrs. Coolidge present when the police went out to the Coolidge home at that time?

Mr. Archibald Cox: She was.

Justice Byron R. White: And do I get an intimation from her record that the police asked questions and Mr. Coolidge showed him his guns and helped them inspect the car and agreed to take the lie detector test at that time?

Mr. Archibald Cox: He was entirely free and open in responding showing anything and responding to anything they ask.

Justice Byron R. White: And she was present throughout this time?

Mr. Archibald Cox: And she was present.

I would simply say that the circumstances had changed so much by February 2 when he was being held in custody that neither she nor the police would be entitled to infer from his conduct then that he was authorizing her to make up his mind for him later.

Justice Byron R. White: Well, this is my next question.

If there is anything from which a consent can be inferred in January 28th, is there anything in the record which would support an inference that it was withdrawn between January 28 and February 2?

Mr. Archibald Cox: There is nothing -- there is no evidence of his saying anything to her which would cause her to draw a different inference so I suggest there was a marked difference in the circumstances.

And his willingness to do, to make that decision at that time does not seem to me they properly authorized her to infer that she could make the decisions.

May I speak very briefly of the main points with respect to the wife’s consent?

First, I would emphasize that there was a seizure and I think in the constitutional sense a search here.

The Supreme Court of New Hampshire said no.

I can illustrate the point best by putting another homely little example.

Suppose that an FBI agent were to come to my office in Lindale Hall and say there was a valuable manuscript missing from the library of this Court and to describe it and say they had some reason to think it was encumbered.

In some further that I say, oh that’s curious, I’ve seen something looks very like that in my colleague professor Dawson’s office dawn the hall.

He keeps it in among the books in his library.

Come on I’ll show it to you, each of us has a key that fits every other office and we occasionally go in to borrow books.

I take it that if I’d led the FBI into his office and showed them that document at their request that everyone would say there was an unconstitutional search and seizure.

Chief Justice Warren E. Burger: But you have not demanded that from us?

Mr. Archibald Cox: No, but quite true, fond of him, but that goes to the question Justice Harlan which I think is the heart of it and that is whether the wife was or was not authorized.

I clearly would not be authorized, but the point I was trying to make simply was that this turns on the matter of the effect of the consent and not on whether they had to hunt her around and it took them an hour to get it rather than being taken there quickly.

Justice John M. Harlan: Assuming her authority, do you claim that she was -- ?

Mr. Archibald Cox: Well, we didn’t present that in our petition, because I didn’t think I could get certiorari on that question.

It was found she was unusually nervous, it was found that the police discouraged her mother from staying in the house.

It was found that she had been threatened by a captain of the New Hampshire police, that afternoon told if she could go to jail if she withheld anything.

She testified she felt she had to.

I think the point is and the reason I stress is, that in any case if you make the constitutional effect of a wife’s consent turn -- if you make the constitutionality of a search and seizure turn on the wife’s consent, you’re inviting all kinds of over reaching and pressures from taking advantage of ignorance on the part of the police.

Justice Byron R. White: (Inaudible)

Mr. Archibald Cox: Yes, oh yes.

Well, you know, what happened months afterwards is always hard to reconstruct.

Voluntariness is a matter of degree.

I think there’s an element, I’m not -- the real point I’ve stressed three facts here that I try to build this few minutes available.

First, that these were petitioner’s own private belongings and I would say that the wife’s general custody and possession does not extend to that.

Secondly, --

Justice Byron R. White: We are all receiving the plain side of the case.

Mr. Archibald Cox: We do not deny that.

Second, because at that point, the officers would have been engaged in pursuing their business with Mrs. Coolidge.

Whereas, at this point, there were -- and that would have been a fallout, an incident.

At this stage, they had followed here into the bedroom, simply seeking to make her the instrument of defeating her husband’s constitutional rights.

And the third point I stress is that he was available and could’ve been asked.

And I submit to you that I have time to elaborate it by I submit to you that when you stop and think about it, the only consequence of giving effect, legal effect to the wife’s dissent here would be to enable the police to circumvent the chance that he would disagree.

And I submit that that is not consistent with this apparent letter of the constitution, so that we think on either ground, the judgment below should be reversed.

Chief Justice Warren E. Burger: This maybe effective somewhat I suspect by the fact that she sometime earlier and witnessed her husband’s open willingness to have them see the guns and look around the house and --

Mr. Archibald Cox: Yes, but I would submit to you sir that Mr. Chief Justice that his willingness to do that on one occasion, what was it, many days before -- no, four days before excuse me, should not be taken of a surrender of the privilege of making up his own mind on a later occasion when he said nothing, he certainly didn’t say to her or them or when they get back, got married, dear wife, remember, you have authority to turn my most personal possessions over to the police anytime you feel like it.

I don’t think that was the effect of his conduct, the fair of that could either, I submit that’s the answer Mr. Chief Justice.

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

Mr. Kalinski.

Argument of Alexander Kalinski

Mr. Alexander Kalinski: Mr. Chief Justice and may it please the Court.

The two issues, search and seizure issues which have been raised here by the petitioner turned on the admissibility of -- or rather suggest that the vehicle which belonged to the petitioner and certain vacuum sweeping is taken from it subsequent to the time it came into the custody of the police were obtained by unlawful means because of the issuance of an invalid search warrant.

And secondly, that certain items of clothing particularly and a murder weapon, a weapon which was subsequently testified to as being the weapon which fired a fatal bullets was obtained, interrogation of his rights from his wife at the time when he was not present.

Taking the first issue that the petitioner raises, we suggest that the petitioner is stressing form rather than substance.

The basis of their contention is that the search warrants were invalid because they were not issued by a neutral and detached magistrate since the magistrate so to speak who issued the warrants was the Attorney General who’s in charge of the prosecution then and subsequently who tried the case to the jury.

And the real issue we say is, were the petitioner’s constitutional rights affected or denied him in any way by what actually happened here, taking, looking at the substance of what happened, the Trial Court has specifically ruled that on the basis of the following facts, any magistrate, neutral and detached magistrate would have found probable cause and would have issued the search warrants under these circumstances.

Justice Thurgood Marshall: But why have a search warrant at all then?

Mr. Alexander Kalinski: The search warrant, the --

Justice Thurgood Marshall: At all.

Mr. Alexander Kalinski: The police officers were very properly under the circumstances seeking a search warrant and I’m simply stating that to deny the substance of what happened here and say that the search warrants were illegally issued under these circumstances would be --

Justice Thurgood Marshall: Do you -- do you tell us that the Attorney General at that stage was a neutral?

Mr. Alexander Kalinski: This --

Chief Justice Warren E. Burger: You say he was neutral in fact I suppose.

Mr. Alexander Kalinski: I say he was neutral in fact, yes Mr. Chief --

Justice Thurgood Marshall: The fact being what?

Mr. Alexander Kalinski: On the basis of the facts which were presented to them which were as follows.

That on the evening of the murder, the petitioner was missing from his home from 5 to 11 pm, the time of death was fixed at about 9, between 8 and 10 pm that evening, at the time of death at rather 9:30 pm that evening, the petitioner admitted and other witness testified to the fact that his vehicle, his 1951 vehicle was on the highway opposite from where the body of the victim was discovered eight days later, plus the fact that he tried to obtain alibis for his whereabouts on the evening of the 13th from other people plus the fact that the ballistics indicated that his weapon --

Justice Thurgood Marshall: I would like to just warn you Mr. Kalinski, when you get through, I’m still going to ask you to explain that after knowing all of that, how did he become neutral and the longer you give me facts, the more difficult, I personally am going to add in finding that he’s neutral since he knows all of this.

Mr. Alexander Kalinski: No, I don’t think the evidence shows that he knew all of this at that time, this, the purpose of the conference was to acquaint the Attorney General at this point of --

Justice Thurgood Marshall: But did he issued the arrest warrant?

Mr. Alexander Kalinski: Yes, he issued the arrest warrant and four search warrants.

Justice Thurgood Marshall: That he issued the arrest warrant, did he know more facts after that?

Mr. Alexander Kalinski: No, at that time, all the facts had been presented to him, all of some which he --

Justice Thurgood Marshall: To him?

Mr. Alexander Kalinski: To him, some of which he knew --

Justice Thurgood Marshall: In this conference room, what was the purpose of that, to present evidence or a search warrant or to sum up just how good a case you got against this man?

Mr. Alexander Kalinski: For both reasons Mr. Justice Marshall.

Justice Thurgood Marshall: Well, did he participate in whether or not we’ve got a good case against this man?

Mr. Alexander Kalinski: The testimony of Chief MacGraney was that the conference was called for the purpose of presenting everything that had been -- was relevant to that -- the case at that time.

Justice Thurgood Marshall: But that’s what they were discussing weren’t they?

Mr. Alexander Kalinski: Yes and also to --

Justice Thurgood Marshall: And the Attorney General was there doing the discussion?

Mr. Alexander Kalinski: Yes, and also --

Justice Thurgood Marshall: And then after the discussion, was he neutral at the beginning of the discussion?

Mr. Alexander Kalinski: I would say he was neutral throughout the whole thing because at this point, when all of this according to chief MacGraney, when this was which he testified to, and this was presented to him, he did not have all these facts before him.

He was appointed --

Justice Thurgood Marshall: Wasn’t he the prosecutor at that time?

Mr. Alexander Kalinski: He was -- under the New Hampshire law, the Attorney General is the chief prosecutor and in that capacity, he has control of any criminal case that particularly the murder case that comes to his attention.

Justice Thurgood Marshall: And when did he -- well, do you agree with me that the prosecutor is not neutral?

Do you agree with that?

Mr. Alexander Kalinski: I can accept that to a point Mr. Justice Marshall but not --

Justice Thurgood Marshall: What’s the point?

Mr. Alexander Kalinski: The point is that in this case, there was a distinguishing factor.

The chief prosecutor also held a commission here as a justice of the peace.

Justice Thurgood Marshall: But suppose he’d also been a judge under New Hampshire law, could he have tried it?

Mr. Alexander Kalinski: In effect he was also a judge, yes to a certain extent, to the extent that he could issue a search warrant lawfully under New Hampshire law.

Justice Thurgood Marshall: But could he have been a judge and found him guilty if New Hampshire law was that way?

Could he --

Mr. Alexander Kalinski: New Hampshire law was not that --

Justice Thurgood Marshall: -- investigated, prosecuted, issued the warrant and convict it just because Massachusetts says that’s the law?

Mr. Alexander Kalinski: I don’t believe that that would be proper in any state and that was not the law in New Hampshire but it was the law that the justice of the peace could issue a search warrant under proper circumstances.

Justice Thurgood Marshall: But it didn’t say the Attorney General could?

Mr. Alexander Kalinski: It did say that a justice of the peace could do so and in fact, many justice of the peace who are not even --

Justice Thurgood Marshall: I have one final question, is there anything in the record which says that as of this moment, I 3817, Attorney General of New Hampshire seize, plea and prosecutor and become magistrate?

That’s not in the record isn’t it?

Mr. Alexander Kalinski: I don’t quite follow the questionnaire there is nothing in the record of that nature, no --

Justice Thurgood Marshall: I’m just trying to find out why he changed his head.

Mr. Alexander Kalinski: When he signed the search warrants and issued them, --

Justice Thurgood Marshall: Changed them.

Mr. Alexander Kalinski: It was perfectly proper for him to do so we state under these circumstances.

Justice Thurgood Marshall: It’s all I want to know.

Justice Hugo L. Black: Did you say he was a justice of the peace?

Mr. Alexander Kalinski: Yes Mr. Justice Black.

Justice Hugo L. Black: How was he a justice of the peace, by what authority?

Mr. Alexander Kalinski: By the authority of the constitution and laws of the state of New Hampshire.

Justice Hugo L. Black: What does the constitution provide about it?

Mr. Alexander Kalinski: He applies for a commission and it’s issued to him by the Governor and the Governor’s counsel and a commission, he has sworn after the commission has issued before to other justices of the peace and the commission constitutes his warrant to act as a justice of the peace and this is --

Justice Hugo L. Black: How long has that been in the constitution of New Hampshire?

Mr. Alexander Kalinski: Since the initiation of the constitution as I understand it.

Justice Hugo L. Black: What date?

Mr. Alexander Kalinski: Back in 1700 something Mr. Justice Black.

Justice Hugo L. Black: Since that date, constitution has provided that the Attorney General as a justice of the peace?

Mr. Alexander Kalinski: Not the Attorney General, anyone who applies for a commission as a justice of the peace and is issued a warrant by -- a commission rather by the Governor and counsel.

Justice Hugo L. Black: And he was issued a warrant?

Mr. Alexander Kalinski: Yes, he was issued a commission.

Justice Byron R. White: What was the sentence in this case?

Mr. Alexander Kalinski: Life imprisonment Mr. Justice White.

Justice Byron R. White: (Inaudible)

Mr. Alexander Kalinski: I’m not sure that it is but the --

Justice Byron R. White: (Inaudible)

Mr. Alexander Kalinski: The trial justice does the sentencing in a --

Justice Byron R. White: (Inaudible)

Mr. Alexander Kalinski: In a capital case, it’s up to the jury to recommend capital punishment or not.

In this case they chose not to recommend it.

Justice Byron R. White: There has been sentence?

Mr. Alexander Kalinski: There has been a sentence of life imprisonment.

Justice Byron R. White: By?

Mr. Alexander Kalinski: By the trial justice.

Justice Byron R. White: In other words, (Inaudible)

Mr. Alexander Kalinski: That’s correct Your Honor.

Justice Potter Stewart: Now that you’ve already been in the record, may I ask you if you know about how many justices of the peace are there in New Hampshire?

Mr. Alexander Kalinski: Yes, I was going to get to that.

There are quite a few justices of the peace.

Many of whom who are not even members of the bar.

Justice Potter Stewart: Right.

Mr. Alexander Kalinski: And this has been the -- incidentally the practices Mr. Cox pointed out.

In the last session of the legislature, the legislature changed the law and now search warrants may be only issued by a justice of a district or a municipal Court.

The prior practice of any justice of the peace having authority to issue a search warrant or an arrest warrant has been changed.

Justice Potter Stewart: About how many are there?

I didn’t get that answer.

Mr. Alexander Kalinski: Hundreds, literally hundreds, the commission is a --

Justice Potter Stewart: I thought thousands, literally thousands, are there?

Mr. Alexander Kalinski: I wouldn’t say there are thousands, I would say --

Justice Potter Stewart: Population of the state is about half million?

Mr. Alexander Kalinski: Population is about 700,000.

Justice Potter Stewart: Yes, has grown greater.

Mr. Alexander Kalinski: And I can’t really answer your question definite, definite till it say that there are -- maybe thousands but it is a great number.

Justice Potter Stewart: I’m familiar only with a little area up there quite closely familiar with that of a few hundred people and I’m sure there are dozens of justice of peace -- justices of the peace among those areas.

Mr. Alexander Kalinski: Every -- practically, every real estate broker, every --

Justice Potter Stewart: Yes.

Mr. Alexander Kalinski: -- every accountant, everyone, many offices in which legal, --

Unknown Speaker: Every lawyer.

Mr. Alexander Kalinski: Every lawyer, every --

Justice Potter Stewart: And most legal secretaries.

Mr. Alexander Kalinski: Every legal secretary practically are all justices of peace.

Justice Potter Stewart: And most real estate agents?

Mr. Alexander Kalinski: Yes Your Honor.

Justice Potter Stewart: So they all had -- at the time of this search, they all have power to issue search warrants.

Mr. Alexander Kalinski: Yes, there’s no question about that.

Justice Hugo L. Black: At that time the Act was changed, was it customary for the Attorney General to issue search warrants?

Mr. Alexander Kalinski: It has happened --

Justice Hugo L. Black: As justice of the peace?

Mr. Alexander Kalinski: Yes, it has happened in the past on many occasions.

Justice Hugo L. Black: Have they ever been attacked before?

Mr. Alexander Kalinski: It never has been raised before and in fact, that practice amongst the police which has changed substantially back in around this time after this case was for a police officer to go to a fellow police officer who was a justice of the peace and have a search warrant or an arrest warrant issued.

The practice in New Hampshire never was for police officers to go to a magistrate, hardly ever to go to a magistrate of a District Court and have it issued.

Justice John M. Harlan: The officer who has any affidavit here for this warrant or he has to be a magistrate?

Mr. Alexander Kalinski: I do not know the answer to that, he probably was.

He was the chief of police of the largest city.

Justice John M. Harlan: Is there any difference, if instead of bothering the Attorney General that acted both for best as himself?

Mr. Alexander Kalinski: Yes, because then he would be passing judgment on himself --

Justice Potter Stewart: Now we could get it the other way, the Attorney General could have made out the affidavit, he could have issued the warrant?

Mr. Alexander Kalinski: I think it would have been --

Justice Potter Stewart: It is possible that these both had the same information.

Mr. Alexander Kalinski: Well, the point was that the Attorney General didn’t have the information, the chief of police did.

I don’t think there’s anything further --

Justice Hugo L. Black: What articles were seized?

Mr. Alexander Kalinski: Under the search warrants, the only item of evidence that was seized was the 1951 Pontiac and there is some question about whether that was under the search warrant. --

Justice Hugo L. Black: And the automobile you mean?

Mr. Alexander Kalinski: The automobile of the petitioner.

At the time that they arrested him, the automobile was parked in its driveway and the police arrested him, took him to the police station, called a tow truck and the tow truck took an hour to an hour and half to get there then that the vehicle was removed.

The search warrant authorized the executing officer to search the vehicle but it did not specifically identify the vehicle as an item to be seized.

Justice Byron R. White: Only aside from the warrant under New Hampshire law that the state impound the vehicle?

Mr. Alexander Kalinski: Yes, I think that on several independent grounds on probable cause alone which I’ve outlined on the seizure incidental to a lawful arrest and I don’t believe that the arrest warrant was ever challenged here but maybe --

Justice Byron R. White: What about aside from that, would you have -- are there any grounds for seizing the vehicle under New Hampshire law and impounding it as evidence or --

Mr. Alexander Kalinski: Only that it was an instrumentality of the crime and --

Justice Byron R. White: And what if it is, can you seize -- are you authorized to impound the automobiles for that?

Mr. Alexander Kalinski: Under the statute as I recall it, the RSA 595, one of the Section enumerates the items which maybe specifically seized and the fourth or fifth one is a general one which dates on anything connected to the crime for which the respondent is arrested.

So, under that particular category of the statute, I would answer your question yes, it would be something that could be seized since it was an item of evidence pertaining directly to the crime for which he was arrested.

Justice Hugo L. Black: You had just thought into telling me what article was seized that are in controversy, would you mind?

Justice Byron R. White: Under the search warrant, the only possible item would be the petitioner’s vehicle and the vacuum sweepings which were obtained from it subsequently to its custody.

Justice Hugo L. Black: The what?

Justice Byron R. White: And the vacuum sweepings of certain part, minute particles which were taken out of the vehicle after it was in police custody.

Justice Hugo L. Black: Is that what’s in controversy here?

Mr. Alexander Kalinski: That is what in controversy with respect to the issuance of the search warrant.

Justice Hugo L. Black: What were they sweeping?

How’d they been?

Mr. Alexander Kalinski: The vacuum sweepings were examined by experts and the -- they were segregated under a microscope and also items, similar items were taken from the clothing of the victim and compared by the expert and on probabilities, he testified that these particular particles probably had a common source, this was the summoned substance of the evidence on that point.

Chief Justice Warren E. Burger: Were these particles fabrics from her clothing?

Mr. Alexander Kalinski: No, they were mostly plastics, paints, metals, and things of that nature.

Justice John M. Harlan: What was the date of his conviction?

Mr. Alexander Kalinski: The date of the conviction was June of 1965 Your Honor, thank you, a year after -- a year and a half after the crime took place.

To summarize the first point, we simply contend that on a substance of what happened here, there was probable cause, the Trial Court found that any neutral and detached magistrate would have found probable cause and the way we read the Aguilar case, the Giordenello and the other cases is that all -- this is all that the constitution requires is that on the basis of adequate facts presented to a magistrate who was in fact neutral and detached, these the finding of the search warrants are issued.

Justice John M. Harlan: On light of the investigation that --

Mr. Alexander Kalinski: The next issue raised by the petitioner has to do with certain items of clothing and the murder weapon which was obtained by the police from the wife on the date of February 2, 1964.

I would like to just go over the facts briefly with respect to how these items were obtained because I think it’s very crucial to sustain the -- to explain rather the finding of the Trial Court that there in fact was no search and seizure in this case with respect to the murder weapon and the clothes.

As Mr. Cox pointed out, on January the 28th, when the police were conducting a very general investigation, not knowing who they were looking for or even what they were looking for in terms of a murder weapon and based on the report only of a neighbor that this particular individual, the petitioner in this case was not at home on that evening between 5 and 11 o’clock, they went to his home and asked him about where he was that evening, during the course of this visit, he freely discussed his activities on that evening.

During the course of this visit, he took them out and showed them his cars and he brought out three weapons to show them.

The police officers who were there listed the three weapons and neither of these weapons was the murder weapon.

While they were there, they asked him he would mind taking a lie detector test and he said no but he was a bakery truck driver and could not get off except on a Sunday so could it be on a Sunday.

And they set a date for the following Sunday which is February the 2nd.

On February 2, one of the officers that was there called him and he came down to the station voluntarily, they stayed at the station, this is at 1 o’clock in the afternoon, they stayed till about 3 to 3:30 talking about whether he should take a test or not and finally, he agreed to go with them to state police headquarters in Concorde.

Before or rather during the test, there, they turned them over to Sergeant MacBane at that time with the state police who administered the lie detector test which was inconclusive but in the course of administering the test, the petitioner admitted a larceny of $300.00 from his employer.

The police then took the petitioner back to Manchester and since he had been giving him conflicting stories about where he was on that evening that he was out with a girl or that he was out with somebody else or that he had gone to another town.

They kept checking what he told them and they stayed -- he stayed at the police station until 2 o’clock that morning and at 10 -- about 9 o’clock that evening, the sergeant came down from Concorde and talked to the captain in charged of the police station and he and another police officer, not the first two that were there on the 28th, went out to the “petitioner’s home to talk to the wife to verify one thing about the larceny that he had told them,” namely that he had bought a washing machine and secondlth y to discuss with her his whereabouts on the evening of the murder, January 13, 1964.

When they arrived there, the mother in law, the petitionr’s mother was there, they started to talk to the petitioner’s wife and the mother-in0law made some statements and the testimony is that she left at their request.

After the mother-in-law left, the petitioner’s wife discussed this with the two police officers who were there namely about where the petitioner had been on that evening.

They told her that they were conducting a general investigation, an investigation into the crime, the murder and at this point also, they had no knowledge of what weapons he had shown to the other two officers.

They had no knowledge of what particular weapon they were looking for.

They asked her and told the petitioner’s wife that they were examining clothing and weapons, she volunteered that they -- that he had some riffles and asked if they would like to see them.

They said yes and she went into the bedroom and they followed her then she said I believed I asked them if they wanted the guns.

In other words, the request for the -- to take the guns did not initiate with the police officers, it initiated with the petitioner’s wife.

And one of the police officers said no and the other one said we might as well take them, which is consistent with the finding of the Court that they did not at that point know what they were looking for.

As it turned out later that evening and she brought out not three but four weapons, one of which turned out to be the murder weapon.

Later that evening at the police station, the other police officer who had been down at the ballistics laboratory returned about post of midnight and for the first time, at the time when they already have these four weapons at the police station, they know that they’re looking for a 22-caliber Mossberg rifle and he recognizes that there’s one on the bench of the police station.

The evidence was that the petitioner saw his cloths and his guns at the police station that evening, in fact, the next morning offered to sell one of the guns to the one of the police officers, and it’s within this factual background that the petitioner raises the question of a search and seizure.

The Trial Court ruled and the New Hampshire Supreme Court upheld the ruling that there was under these facts and circumstances, no search and no seizure.

There was no quest.

They did not go throughout the house looking for anything.

In fact, it was only at the offer of the wife that they took the rifles with them and under these circumstances, the contention of the respondent here is that there was no search and seizure and if that’s the case, then there’s no issue for this Court to pass upon and the ruling of the court below should be upheld.

But even assuming that there was a search or a seizure, under the law, it’s the contention of the respondent here that a wife has the authority to consent to a -- voluntarily consent to a search and seizure of her home that she has lawful control in the possession of and I think --

Justice Byron R. White: Because actually you think that the situation here is as though the wife had taken the guns out of the closet and taking them down to the police station --

Mr. Alexander Kalinski: And handed them over.

Justice Byron R. White: Here are my husband’s guns.

Now, she may not had authority to do that, that’s the -- but do you say that if the police had taken them, there nevertheless wouldn’t have been any search and seizures involved.

Mr. Alexander Kalinski: That’s correct Your Honor and the fact that she also made a statement that evening which I haven’t referred to before was, it’s in the evidence that we have nothing to hide and the basis of that statement is obviously the events that happened four days earlier where when two other police officers were there, the petitioner himself brought out and showed them, show them through the car and answered all their questions without any hesitation.

There was no reason for her not to believe otherwise that that in fact they did have nothing to hide and under those --

Unknown Speaker: And even arrested at that time?

Mr. Alexander Kalinski: He was not arrested until three weeks later, he was not even the prime suspect in the case at that time because the police had nothing to go at that point other than the fact that he was not at home that evening.

It was not until several weeks later that the weapon that was tested that was obtained that evening indicated that it was the murder weapon that indicated to the police that he was the perpetrator of this crime.

Justice Byron R. White: That’s the weapon you say the wife ave?

Mr. Alexander Kalinski: Yes Mr. Justice White.

So that under those circumstances we say that there was no search and seizure and there is no issue.

Chief Justice Warren E. Burger: Thank you, the case is submitted.

But Mr. Cox you acted at the Court’s request by appointment, thank you for you assistance through the Court and the Court’s for your assistance to the petitioner.

Rebuttal of Archibald Cox

Mr. Archibald Cox: Thank you.

Chief Justice Warren E. Burger: The case is submitted.