ADAMS v. WILLIAMS
Legal provision: Amendment 4: Fourth Amendment
Argument of Donald A. Browne
Chief Justice Warren E. Burger: -- in number 70-283, Adams against Williams.
Mr. Browne you may proceed.
Mr. Donald A. Browne: Thank you, Your Honor.
So Chief Justice and may it please the Court.
This matter evolves from a petition for a writ of habeas corpus which was filed by the present respondent, Robert Williams in 1969 in the federal District Court in the district of Connecticut.
Mr. Williams had been arrested in the city of Bridgeport, Connecticut in October, 1966.
He had been charged with a number of state criminal violations relative to his possession of a quantity of heroin, a pistol, and a machete.
In those state prosecutions, Mr. Williams had filed motions to suppress those items to prevent them from being used as evidence in his state trials.
These motions were denied.
Mr. Williams was subsequently convicted.
He took an appeal to the state's Supreme Court for the state of Connecticut which affirmed his conviction and likewise ruled that the items which had been taken from this possession by a Bridgeport police officer had not been taken illegally or in any violation of his constitutional rights.
Thereafter, Mr. Williams filed the instant petition in the District Court for the district in Connecticut.
That court ruled likewise that his rights had not been violated.
They affirmed the prior decisions of the Connecticut courts.
Thereafter, the matter was appealed to the circuit Court of Appeals for the Second Circuit.
Initially, that court again affirmed the lower court, the District Court ruling by a divided court, 2 to 1 decision.
The respondent thereafter petitioned for a rehearing and a rehearing en banc was granted and the result of which was a per curiam decision which reversed the lower court's, the prior court decisions and ruled, in fact, that the Bridgeport police officer had no constitutional basis or no valid reason for removing certain items from Mr. Williams' possession.
I think that factually the facts are not in great detail.
It is a relatively simple factual situation, in that on the early morning of October 20, 1966, a Bridgeport Police Sergeant by the name of John Connolly who was veteran of 20 years service on the Bridgeport Police Department was on petrol duty alone in the city of Bridgeport in a particular area of the city which was noted for a high incidents of crime.
At that time he was in a gasoline station at the intersection of two public streets in the city.
He met and he had a conversation with a person whom he knew, who was known to him, that particular person indicated to him that there was another person seated in an automobile nearby in a street known as Hamilton Street and that that person, who incidentally developed to be the respondent Robert Williams, that he had drugs and then he had a pistol in his waistband.
Thereafter, the officer proceeded out of the gasoline station across the street of Hamilton Street to the particular automobile.
He knocked on the window of the car, he asked the respondent to open the car door.
In response thereto Mr. Williams rolled down the automobile window on the passenger side.
The officer immediately placed one hand in through the open car window inside of the respondent's coat which was open and directly on to the handle of a pistol, which he seized and removed from the respondent.
Apparently, the coat was open, he apparently didn't touch Mr. Williams' body at all other than inside of his coat.
The revolver was fully loaded.
He then proceeded to place Mr. Williams under arrest, advised him of his constitutional rights relative to statements.
Then a further search was conducted of the person of Mr. Williams which disclosed a quantity of heroin, at two locations on his person and a search was conducted of the automobile there on Hamilton Street which disclosed a large machete concealed under the passenger seat where Mr. Williams had been seated.
As I indicated earlier, there were motions made within the state courts to suppress these items as evidence.
There is no dispute that they were timely made, they were overruled, the matter was affirmed by the Connecticut Supreme Court and the United States District Court reversed in per curium opinion from which my client, the warden into actuality of the state of Connecticut petition for certiorari which was granted.
The state, the Warden petitioner in the various courts in which this has been presented has tried to urge that the issues here to be framed in the dual consideration which is presented within the decision of the Terry case, more particularly at page 20 of the Terry case.
I think it goes without saying that, it's the position of the petitioner that many statements contained within the decision of Terry versus United States both within the majority decision and the concurring decision are uniquely applicable to the factual situations in the case of Robert Williams.
In the Terry decision, at page 20 of the reported decision, the Chief Justice urges that a dual consideration must be inquired into when determining in this type of a situation, where a officer making a self-protection search and the first consideration is whether the officer's actions were justified at their inception and second consideration is whether the activities or actions were related reasonably in scope to the circumstances which justify the interference.
And I would respectfully submit that the actions of the officer, officer John Connolly in leaving the gasoline station after he received this particular information, which is I indicated, was from a person who he knew by name and who he had had prior conversations with and whom he believed to be a person who was trustworthy and reliable.
That his actions in leaving the gas station on the basis of that information in going over to the automobile to make the investigation, a further investigation were completely justified.
I would point out that in most of the reported cases, I think that most of the cases that I have read which relate to street investigations in which an officer receives information and then proceeds to make some sort of an investigation.
I think the great majority of those cases involve situations where the officer receives his information from someone who is unknown to him, from a person who comes up to him and relates to him that some unusual activity or some type of criminality is taking place and then he makes his decision to proceed or not proceed or whatever he is going to do.
But I think it's of considerable importance here that that was not the situation here.
This is not the situation where a person who was stranger to an officer comes up and indicates information to him on basis of which he makes his investigation.
I think, is relevant, because in the case of an unknown or unnamed individual, the individual after giving the information can go about his ways and quite possibly never be located by the officer again, whereas this is not the situation.
Here the officer knew this individual and knew him my name and of course if the information had been incorrect, he could come back and locate that person additionally and inquire as to why it had been made to him.
The officer arrives at the side of the car in which Mr. Williams was seated, the window was lowered and I think that then he had to make the decision, which in all probability is the crux of this particular case, and that is whether or not he was justified in reaching his hand in through the open window and into the waist of the respondent where he found and came in contact with the handle of the revolver and removed it.
Chief Justice Warren E. Burger: Did the officer testify that the man's coat was open?
Mr. Donald A. Browne: Yes, that appears in several places within the appendix, within his testimony.
I don't have the pages right in front of me, but it does appear within the appendix on several occasions that the coat was open; it was not buttoned.
Justice Harry A. Blackmun: Mr. Browne, he was convicted on three counts here, wasn't he?
Mr. Donald A. Browne: Yes, he was Justice --
Justice Harry A. Blackmun: I can't make out from the record whether those are concurrent sentences or consecutive ones?
Mr. Donald A. Browne: He received a sentence on the possession of the heroin of not less than three and not more than six years in state's prison.
He received one year sentence which was consecutive on the possession of the pistol without a permit and additional one year sentence on the possession of the machete, both of which are added to the maximum sentence of the state of Connecticut.
So his effective sentence was not less than three and not more than eight years on all of the charges, that was total sentence.
Again, it's the position of the petitioner here that the crux of the case amounts or evolves to whether or not the particular officer was justified reaching into the automobile and placing his hand on the handle of the revolver and removing it, and again we would submit that it was a decision which the great majority of trained police officers in that circumstances at that time would undoubtedly have done.
Justice Potter Stewart: You in this case, question Mr. Browne the availability of federal habeas corpus to attack the --
Mr. Donald A. Browne: No I do not --
Justice Potter Stewart: -- permissibility of the evidences in a state trial?
Mr. Donald A. Browne: No, we have never contested that.
We have never contested the availability of that particular one.
I would remark that this proceeding today is the seventh time in which this particular point has been judicially reviewed by a court or courts.
In other words, it was reviewed three times within the state system.
It was reviewed prior to today, three times in the federal system and today it makes the seventh time within which it has been further reviewed judicially.
Justice Potter Stewart: In the federal system by the District Court and twice by the --
Mr. Donald A. Browne: Twice by the Second Court of Appeals for Second Circuit and today it makes the fourth time.
Justice William J. Brennan: Mr. Browne --
Mr. Donald A. Browne: Yes sir.
Justice William J. Brennan: You said earlier, you said the crux was whether there was sufficient cause for reaching into the car.
Am I wrong, looking at the appendix 8 in the petition, per curiam phrases that whether there was any other sufficient cause that this in addition to a probable cause for arrest, for reaching into Williams' waistband?
Mr. Donald A. Browne: That's correct, into the car and into his waistband.
In other words, he reached in --
Justice William J. Brennan: Well, it says for reaching into Williams' waistband?
Mr. Donald A. Browne: Into the waistband, that's correct.
Now again quite clearly --
Justice William J. Brennan: Wasn't the window uped and the officer ask to --?
Mr. Donald A. Browne: Williams rolled the window down.
So window wasn't --
Justice William J. Brennan: He was asked to --
Mr. Donald A. Browne: He was asked to open the door, and he in response rolled the window down and the officer then placed his car -- his hand into the automobile and right on to the handle of the revolver.
Justice William J. Brennan: Well, does this imply that there was a sufficient cause for reaching into the car, but not at --
Mr. Donald A. Browne: I assume that the -- no, I assume that the implication of the per curiam sentence is that there was no sufficient cause to reach into the automobile or into the waistband.
I think it's a corollary that if he had no cause to reaching to the waistband, probably he didn't have any cause to reach into the car.
Chief Justice Warren E. Burger: Do you think it goes beyond that and suggest that there was no probable cause to go over and tap on the window?
Mr. Donald A. Browne: Well, unfortunately that's the reason I have tried to framed the issues in the way that I have.
Unfortunately, in the one or two sentence, the decision by the Second Circuit Court of Appeals, they did not indicate within that decision just whether they were saying that there was no probable cause for him to investigate further, whether there was no probable cause for him to or sufficient cause I should say, for him to leave the gasoline station and go over to the automobile or whether they were merely saying that you may have been justified in going over to the automobile, but in any event there was no sufficient cause for him to reach in and remove the pistol.
I think that it's difficult because of the way they framed their opinion.
They don't say necessarily whether they are including the fact that this investigation was improper, although I feel and my brother may correct me, he at least in his brief, that is not briefed to my knowledge any claim that it was improper or imprudent by the officer to make this investigation in the manner that he did.
I think the claim is that once he got to the automobile, he should not have inserted his hand in the window.
Justice William J. Brennan: Well, Judge Friendly I gather and dissenter, if I read that correctly, it seemed that is in the panel dissent?
Mr. Donald A. Browne: That's correct.
Justice William J. Brennan: Seem to indicate that it turned on whether or not he should have approached the car, he didn't have probable cause for arrest, but was he justified in approaching the car on the basis of the information from the unnamed informer?
Mr. Donald A. Browne: I don't think that -- my recollection of the opinion of justice -- his dissenting opinion.
I don't think he ever comes out and says categorically that Connolly should never have left the gasoline station and gone over to the respondent.
Justice William J. Brennan: I am just looking at the sentence.
“Almost everything must therefore turn on what the unnamed informer said and the value of his statement,” and then he goes on, “in his judgment didn't satisfy the requirements of Draper and those other cases.”
Mr. Donald A. Browne: My recollection of the dissent of Judge Friendly was he held that there was not a sufficient basis for a stop.
Now where the stop was, whether the stop was, actually obviously he didn't stop Mr. Williams from proceeding in any manner, because Mr. William wasn't proceeding any place, he was just sitting there.
So there wasn't a stop in the idea that he stopped his momentum or he stopped his walking or he stopped his activity.
Justice William J. Brennan: So it simply has to be on these facts whether he was justified in the approaching the car at all?
Mr. Donald A. Browne: Whether he is justified first in approaching the car?
Obviously, if he wasn't approaching --
Justice William J. Brennan: Surely, if he was justified in approaching the car, then I expect no one can call that he then reached for the gun in open view?
Mr. Donald A. Browne: Well, that would be my position.
Justice William J. Brennan: Well, then it does have to narrow down to whether he was justified in approaching the car car at all?
Mr. Donald A. Browne: And again I have taken that into and tried to frame it in two particular issues as I indicated under the law as set forth in the Terry.
One, whether he was justified in leaving the gasoline station and walking across the Hamilton Street to the automobile.
And then two, once you put him next to the automobile and the window goes down, is he secondarily justified in reaching in to remove the individual's gun.
Chief Justice Warren E. Burger: Is it clear in your view that he received the information, or I will put it this way, where do you say this record shows the police officer received the tip?
Mr. Donald A. Browne: Well, the appendix -- I think the testimony of the officer is clear that he received the tip in the gasoline station.
Now there was a hearing by Judge Clary in United States District Court to clear up what he considered to be a discrepancy between the officer's earlier testimony and the officer's testimony in the superior court motion to suppress at the trial and there was a hearing for that specific purpose and the conclusion of which in his memorandum of the decision, the judge expressly accepts and finds the finding of the superior court to be completely correct and he adopts them as the findings of the United States District Court.
So I don't think that as far as this Court is concerned, there is any question.
At this time what that he did receive that information in the gasoline station in the manner in which he testified and acted accordingly.
Justice William H. Rehnquist: Mr. Browne.
Mr. Donald A. Browne: Yes, sir.
Justice William H. Rehnquist: Following up on Justice Steward's question of a moment ago, if this crime took place in 1966 and the ultimate decision of this Court should be to hold that the evidence was improperly seized in 1972, I take it you would agree that if the purpose of the rule against to discipline the police, it would have somewhat attenuated effect, if it's handed down six years after the event?
Mr. Donald A. Browne: No question about it.
In the case of Officer Connolly, I happen to know that he has since retired.
He is no longer a member of Bridgeport Police Department.
So it will have no effect on officer Connolly obviously.
The effect that it's going to have on other brother police officers, if Your Honor please, I think is going to deter them for making any investigation in the streets when they receive information unless they can categorically substantiate -- a feeling that they can categorically substantiate that they are not going to be criticized or that any evidence which their investigation discloses is not going to be ruled or suppressed as evidence in the subsequent proceedings.
If anything I think it's going to substantially deter proper police protection.
I would, and I hesitate, but I would state that the Supreme Court for the state of Connecticut rather than indicating or making any claim that Officer Connolly acted with insolence or acted imprudently, they went out of their way to indicate they felt he was a brave man, that he displayed a degree of courage in going over to the particular automobile even though he felt that there was an individual in there with a pistol which obviously could have been be used against him, and I don't think there has ever been any claim made by the respondent himself that Officer Connolly acted imprudently that he acted --
Justice Byron R. White: Well, didn't Terry proceed on the assumption that in any circumstances such as in Terry, officers wouldn't be deterred at all, because they felt that the situation demanded some action and there was no use in trying to deter?
Mr. Donald A. Browne: Well, I can't read necessarily that Your Honor's conclusion into that particular decision, but I think that -- I think Terry clearly points out in a number of locations that one, that there is no prohibition against the officer for example from walking -- from stopping a person on the street and asking him a questions, that is I don't think that a big deal.
Justice William J. Brennan: Well, let's suppose it Mr. Browne that instead of sitting in the car, Williams had been standing at curb and Sergeant Connolly acted on precisely the same information on which he did act here?
Mr. Donald A. Browne: Yes.
Justice William J. Brennan: Would that be covered by Terry?
Would that be covered by Terry?
Mr. Donald A. Browne: It would be covered a number of the general phrases contained within the Terry decision as to whether or not the officer is acting as a reasonably prudent person under all of the circumstance.
Obviously, we get to the distinction which is the distinction my brother urges upon the Court and that is between some time of a movement which is observed by the officer himself or whether he can justify a protective search exclusively on the basis of the information which he receives.
And that I think is my brother's argument and his claim and at least as I read his brief is that in order for any police officer to justify a protective search, a self-protective search, he must be able to point to some matter which he has personally observed himself which indicates, makes him feel that his position is in peril and that justifies him to go ahead and make this particular search.
I think he urges that no matter how strong the authenticity of the information which is received that a police officer just cannot --
Justice William J. Brennan: Well, do you think this case should be decided as it would be decided if the hypothetical I put you was the case, that is of standing there and the officer acting on --
Mr. Donald A. Browne: I cannot, I cannot --
Justice William J. Brennan: (Voice Overlap) simply if he is in the automobile, it doesn't like that --
Mr. Donald A. Browne: No, I cannot submit to Your Honor any grave justification or a distinction between the fact that he was standing on the street corner or the fact that he was sitting in the automobile other than the fact that being in the automobile it might have been considerably more difficult for Connolly to observe furtive movement such as a moment to go for as his gun.
Justice Byron R. White: The Judge Friendly, I suppose would have conceded, however, that if the informer had just simply said, I saw the gun in his waistband, that the officer could have done what he did?
Mr. Donald A. Browne: I would assume on a basis of Judge Friendly --
Justice Byron R. White: Reliable informant and there is a basis given for the informant's --
Mr. Donald A. Browne: I can only submit that if the informant had said I saw the gun there, then quite possibly the officer Connolly may have basis to go over and make an arrest --
Justice Byron R. White: Well, why wouldn't he?
Mr. Donald A. Browne: I think, I submit that he would have, I submit that he would have.
If the informant had only added that one more piece of information that “I saw the gun,” then I think that we wouldn't be here on the question of stop and frisk or a protective search.
I think, Officer Connolly would have had simple probable cause to go over and make an arrest of Williams without regard --
Justice William J. Brennan: And I suppose Officer Connolly had been at the police station blocks away when the informant told him just what he told him on the gas station.
Connolly got into the squad car and went down and then everything happened that happened here?
Mr. Donald A. Browne: Well, I submit that -- are you including the fact that he indicated that he saw the gun or are you excluding that?
Justice William J. Brennan: I am checking precisely these facts --
Mr. Donald A. Browne: Precisely the --
Justice William J. Brennan: Except that he got the information at the police station several blocks away from informant rather than the gas station across the street?
Mr. Donald A. Browne: Well that of course, it relates again to the propriety of an investigation, obviously he wouldn't have had probable course for an arrest in those -- we really even know that he knew Mr. Williams' name --
Justice Byron R. White: Wouldn't that be stronger because he actually went there and found what the informant said he found, I mean, at least there was a man there?
Mr. Donald A. Browne: That's right, that's correct.
If there would have been like substantially more collaboration of the information that he had received, the existence of a man in an automobile out at Hamilton Street at that particular time would have been collaborative of the information supplied by the reporting witness to him (Inaudible) things.
As I understand again, finally my brother's position, it would be that no matter how authentic the information received if the informant had been a judge or the informant had been three or four judges, still unless Officer Connolly personally observed something in the nature of a furtive movement or furtive action, he still couldn't proceed and to proceed, it would be illogical or unreasonable for him to fear that his life was in peril and consequently it would have been illogical for him to make the protective search at that particular time.
Justice Thurgood Marshall: The search at all wasn't a protective search?
Mr. Donald A. Browne: No, the search of the automobile itself hinges upon obviously whether or not the disclosure of the pistol supplied sufficient probable cause for him to place him under arrest.
Justice Thurgood Marshall: I thought you said, he did place him under arrest?
Mr. Donald A. Browne: After he found the pistol, he proceeded to place him under arrest for possession of that pistol.
Then he made his contemporaneous search of the person which disclosed the heroin and of the automobile which disclosed the machete and it is relevant as to those second two searches that they of course follow the arrest and they took place right there on Hamilton Street.
Justice William J. Brennan: Where was the machete?
Mr. Donald A. Browne: The machete was under the passenger seat of the front -- the passenger side of the automobile and that's where Williams was sitting.
Justice William J. Brennan: Was it in open view or --
Mr. Donald A. Browne: No, it was under the seat --
Justice William J. Brennan: Underneath --
Mr. Donald A. Browne: Under the seat because only Williams knew it was there and nobody else knew it was there and so I think that it was -- it's not illogical to say that he still could have made an attempt to pull the machete out --
Justice Thurgood Marshall: Where was he when the cop searched the car?
Mr. Donald A. Browne: On Hamilton Street, right next to the automobile, on Hamilton Street.
Justice Thurgood Marshall: And how was he go and get the machete standing out on the street?
Mr. Donald A. Browne: Well, it of course, he is standing right next to the automobile, he is the only one that knows that machete is there.
I still can't say that even though the police are there, that it's unreasonable to consider that he could still make an attempt to get the machete, it's far different from the case --
Justice Thurgood Marshall: At that stage, the policeman has got two guns.
Mr. Donald A. Browne: What's that?
Justice Thurgood Marshall: This policeman now has two guns in his hands?
Mr. Donald A. Browne: That's correct and still the guy might get the machete.
Mr. Donald A. Browne: I still say he could make an attempt to obtain it.
I still -- I would submit to Your Honor --
Justice Thurgood Marshall: Well, then he was --
Mr. Donald A. Browne: It might be a foolish attempt, but he is standing next to the automobile, he is not --
Justice Thurgood Marshall: You know I seriously say that, that was a search to protect the life?
Mr. Donald A. Browne: Oh!
No, not the search to disclose the machete, oh! No, I don't submit that the search which disclosed the machete was --
Justice Thurgood Marshall: What was the basis of the search of the the car?
Mr. Donald A. Browne: That was a contemporaneous search, contemporaneous to his arrest there on Hamilton Street.
I don't make any claim that the machete was disclosed by the protective search, not at all.
After the -- as Mr. Williams was arrested, a search was made, contemporaneous incident towards arrest of this person and of the automobile which disclosed these --
Justice Thurgood Marshall: There is nothing in the record about this informant except that he knew him?
Mr. Donald A. Browne: There is a considerable description of testimony in which he describes information that the informant had given him before which did not lead to an arrest, but rather related to particular criminal activities taking place at a particular location in which the officer proceeded to investigate.
There's also a substantial cross examination in which the officers inquired of relating to the informant's past record and he indicates a number of other items which he personally knew about the informant.
I do want to make a -- save a couple of minutes, if I might, for a rebuttal, but I would submit in a nutshell, if I could, that the position of the petitioner in this particular matter is that when you have put the officer on the street next to the automobile that if you want to balance of the intrusion involved against the possibility of the violent crime which could have occurred right then and there which obviously could have included up to his being mortally wounded, it's the position of the petitioner here that, balancing those two together, it's not illogical or unconstitutional to maintain that the officer was justified in taking whatever efforts he did to protect himself.
Chief Justice Warren E. Burger: Mr. Hennessey.
Argument of Edward F. Hennessey
Mr. Edward F. Hennessey: Yes sir.
Mr. Chief Justice and may it please the Court.
The only additional facts which I would add in order to give some clarification to the situation as it existed in 1966 when Officer Connolly met this informant, was that after officer Connolly received the information, at that juncture Officer Connolly had a certain set of facts in his mind.
He had been told something by a person whom he says he knew and he had been -- he says, he believed this person to be reliable because once before the person told him something that he couldn't substantiate, but he has nonetheless believed that what they told him was true, notwithstanding that there was no basis for believing it to be so.
When officer Connolly was told, there is a man in that car with a gun at his waist and drugs, he was looking across the street at a car with a man seated in a passenger side, he saw the man, he saw the car.
At that point he then called the station and elicited help, asked them to send another cruiser.
Having dispatched another cruiser, officer Connolly then started across the street proceeding in uniform towards that vehicle, walking to the front of the vehicle where he was obviously in plain view of the passenger inside, up to the side of the car and knocked on the side window and said, “Open the door.”
At that point the window was rolled down which would infer possibly that the person wanted to find out why the Officer was knocking on the window and that's about as much as one might reasonably draw from that.
When he looked inside, he saw a man, he didn't know, he saw nothing out of the ordinary, the man didn't do anything, the man didn't say anything.
He couldn't see any gun, he couldn't see anything in the car that would indicate contraband or criminal activity.
He then reached in the record sense to show, he reached partially under the man's coat, apparently the coat was in a loosened position down and his hand reached the waistband and did touch a gun, he then withdrew the gun.
At that point, officer Connolly, I would summit under Connecticut Law, still had no probable cause to believe that any crime had been committed because in Connecticut, it's not a crime to carry a gun at your waist.
Unfortunately -- alright, well I won't, I have positive comment on my feelings about those laws but Connecticut appears to be a pro-gun state.
Our constitution protects the right of individuals to carry guns in their own defense.
We have statutes which permit people to carry guns around at their waist or in their car or hidden in their purse and concealed wherever they please.
The only requirement being either that they come within one of approximately 10 exceptions in the statute which permit people to carry guns without permits or that they have a permit.
So, when Officer Connolly knew a man had a gun, that's all he know, he didn't know that the man was commenting a crime.
When he withdrew the gun from Mr. William's waistband, he still didn't have a probable cause I would summit to arrest him.
Justice William J. Brennan: May I just ask a question?
Mr. Edward F. Hennessey: Yes sir.
Justice William J. Brennan: What crime connected with the gun was he convicted?
Mr. Edward F. Hennessey: He was convicted of a crime under 29-35 which is carrying a gun without a permit and then he was -- the machete --
Justice William J. Brennan: And what if he didn't fall within one of the exceptions where he didn't need a permit?
Mr. Edward F. Hennessey: As it was ultimately proved in a trial, he was not for example, carrying the gun as part of transporting his household goods or carrying his gun for merchandising purposes or carrying a gun from a dealer to his home.
Justice William H. Rehnquist: Was it likely that he would have fallen under those circumstances being found as he was in this area, 2 o'clock in the morning?
Mr. Edward F. Hennessey: Well, and I would submit it would be -- be likely that a man could be out at 2 o'clock in the morning with a gun at his waist and have a permit for it.
I would think frankly that, that very often people do carry their, carry their guns at 2 in the morning.
Justice William H. Rehnquist: (Voice Overlap) the burden of proof on the person to show that he has a permit after the gun is found?
Mr. Edward F. Hennessey: Not under the statute of Connecticut no.
Now the statute in Connecticut as it's construed by our Courts and in cases where it's tried requires the state to prove the negative that he did not have a permit in order to sustain its burden.
Justice William H. Rehnquist: What does an officer do in that situation if he discovers a man with a gun and doesn't believe he is within the ten exceptions?
Is he supposed to go back and find out whether he has a permit, or does he ask the man whether he has got a permit?
Mr. Edward F. Hennessey: I would say, usually ask the man.
Frankly at that point I would say, they didn't believe and they would probably determine from the man where he got the permit and would contact since under the state statutes permits are issued by a number of authorities, including any municipal officer or any chief of police of any particular town.
So the permit that a man carries is generally issued from one jurisdiction, such as say the town of Windsor, they could get on the radio and determine whether or not a permit was issued to a particular --
Justice William H. Rehnquist: There was no indication that Mr. Williams made any representation that he did have a permit?
Mr. Edward F. Hennessey: No, Mr. Williams, according to the record was, one he was never asked the gun was taken and the policeman said, get out of the car you are under arrest.
He was then body searched and that's the time when the heroin was seized and also at that point, of course, the two other officers had arrived on the scene.
Williams was standing out of the car immobilized and in the custody of other two officers --
Justice William J. Brennan: Well, I don't get this --
Mr. Edward F. Hennessey: Excuse me?
Justice William J. Brennan: He was arrested and the basis of the arrest was the gun, wasn't it?
Mr. Edward F. Hennessey: That's right.
He was arrested because the officer was --
Justice William J. Brennan: And you suggest that the mere fact that he has a gun does not justify under Connecticut law an arrest, is that it?
Mr. Edward F. Hennessey: That's right.
Because there is no crime for carrying a gun.
There is only crime for carrying an unregistered or a gun without a permit.
So at the point for example, I could be carrying a gun in Connecticut --
Justice William J. Brennan: And you say that Sergeant Connolly had to know or have probable cause to believe for making an arrest for possession of the gun that he did not have a permit for it?
Mr. Edward F. Hennessey: That's right.
I would say that would be, that goes -- actually that impacts on the second search.
There were in effect three, I would submit three searches.
Justice Thurgood Marshall: When you find a man with a gun on the street in Hartford, Connecticut and you take the gun out of his belt, what do you do?
What does the policeman do at that stage?
Mr. Edward F. Hennessey: In Hartford, they arrest him.
They take him down to the station and if after they check him out, they find out he is alright, they let him go.
Justice Thurgood Marshall: Well what's wrong with that?
Mr. Edward F. Hennessey: Well, because --
Justice Thurgood Marshall: Well, what would you suggest they do?
Mr. Edward F. Hennessey: Well, the first question is do they have a right to lay a hand on him in the first place before we get to the --
Justice Thurgood Marshall: Well, you see a man walking on the street with coat hanging wide open and a 45 stuck down in there and the policeman walks up and says, do you have a permit, the guy says nothing, what can the police do?
Mr. Edward F. Hennessey: I would say that the policeman, that would then come in to the issue of whether or not the policeman has a right to make an investigative detention which is often discussed as to whether or not at that point they have a right to hold a man for purposes of checking.
Chief Justice Warren E. Burger: Mr. Hennessey --
Justice Thurgood Marshall: What do you think a policeman should do at that point?
Mr. Edward F. Hennessey: Alright.
What they do to is they hold him and check.
Justice Thurgood Marshall: What do you think they should do?
Mr. Edward F. Hennessey: I think they should hold him and check, I think so.
Justice Thurgood Marshall: Well, what did they do in this case?
Mr. Edward F. Hennessey: This was not -- at this point, they had already seized the gun.
This was not -- your example is a plain sight search.
Justice Thurgood Marshall: A man has a loaded revolver, and the policeman is supposed to hold him, but he can't take the gun away from him?
Mr. Edward F. Hennessey: Yes, he can take the gun away from him, I would submit.
Justice Thurgood Marshall: I thought you meant that.
Mr. Edward F. Hennessey: Yes.
Justice Thurgood Marshall: And he could detain him, you admit that?
Mr. Edward F. Hennessey: No, I don't get to the point of arguing whether or not that that is constitutionally permissible, no.
I am saying -- you asked me, what do they do and I said that's what --
Justice Thurgood Marshall: I asked what would you suggest they do?
Mr. Edward F. Hennessey: Alright.
Justice Thurgood Marshall: Now let's try it again.
Mr. Edward F. Hennessey: Alright.
Justice Thurgood Marshall: Under the Constitution what would you suggest is the most that the policeman could do looking at a loaded 45 in a man's trousers?
Mr. Edward F. Hennessey: I would say in Connecticut if the officer observed a man walking down the street, he may have the right to stop him to inquire as to what he is doing.
Justice Thurgood Marshall: And if the man doesn't say anything --
Mr. Edward F. Hennessey: Yes and the man doesn't say anything.
The suggestion I would make is that under Connecticut law, he would not have any right to hold him.
Justice Potter Stewart: Because your point as I understand it Mr. Hennessey is that under Connecticut law the possession of a gun is no more a badge of criminality and the fact the man might have a hat on him?
Mr. Edward F. Hennessey: That is true.
Chief Justice Warren E. Burger: Or gold clubs or anything of that might be perfectly, it's as innocent as a golf club?
Mr. Edward F. Hennessey: Well, it isn't to me, but it is under our law.
Chief Justice Warren E. Burger: Let me ask you this hypothetical question.
Mr. Edward F. Hennessey: Alright.
Chief Justice Warren E. Burger: Suppose in exactly the circumstances of the information that came to the officer in this case except that the automobile is removed one block away so it's out of the sight, the tip is exactly the same.
Now the policeman goes around the corner and down and finds the car, but instead of finding the driver in the driver's seat he finds him crouched behind the car aiming the pistol over the hood or some part of the car, do you think he could do anything?
Mr. Edward F. Hennessey: Oh!
Chief Justice Warren E. Burger: Well what?
Mr. Edward F. Hennessey: If he saw a man crouched pointing a gun at him --
Chief Justice Warren E. Burger: No, no just pointing a gun at somewhere not at the policeman?
Mr. Edward F. Hennessey: Yes, I think at that point he would have some indication of additional element of criminal activity just by the point that the man --
Chief Justice Warren E. Burger: Alright, let's take it back there.
Now he goes up to the man and taps him on the shoulder and says, “Excuse me, what are you doing with that gun?”
The man says, “I am defending myself, there is a man around the corner trying to shoot me”.
Mr. Edward F. Hennessey: Alright.
Chief Justice Warren E. Burger: On your theory of the immunity of gun carriers in Connecticut, could he do anymore to that man than he could to the man sitting in the car?
Mr. Edward F. Hennessey: He may because he doesn't have to believe the man and he does have some indications in the first instance that the man --
Justice William J. Brennan: (Voice Overlap) He hands off to the officer, in the same set of facts that Chief Justice gave --
Mr. Edward F. Hennessey: Well, then the question would go down, you might again get into the right privilege dichotomy which you supplied to automobile operation, the question being --
Justice William J. Brennan: No, the hypothetical that Chief Justice gave you.
Mr. Edward F. Hennessey: Alright.
Justice William J. Brennan: He sees that he is pointing the gun and he is crouched over pointing it, and the officer turns up, what are you doing, he gives the same story that Chief suggested but then he adds to it, here is my permit?
Mr. Edward F. Hennessey: Alright, well he still is confronted with the situation of potential assault.
He is not just confronted with the situation of possession, he is confronted with a situation of use of a deadly weapon.
Chief Justice Warren E. Burger: Well, but my hypothetical included an assumption that he answered, I will add Justice Brennan's, here is my pistol license and I am exercising my right of self-defense, there is a man over here out of sight who is going to attack me?
Mr. Edward F. Hennessey: Well, I think the police officer is justified and I don't think that the police officer has to rely on the citizen's characterization at the legality of his conduct.
Chief Justice Warren E. Burger: If as you say Connecticut lets him carry a gun for self-defense, why should the officer disbelieve him, it might be true?
Mr. Edward F. Hennessey: Because, excuse me -- why should the officer disbelieve him?
Chief Justice Warren E. Burger: Yeah.
Mr. Edward F. Hennessey: It's not -- I don't think the officer's ultimate determination at that juncture is to decide facts or belief or not.
The question that the officer has to do is to respond to what the facts as he sees them and the fact says you have presented them, indicates a person holding a deadly weapon in an assaultive position and further advising that he has some indication he wants to use that gun for an assaultive purpose.
Chief Justice Warren E. Burger: Well, if Connecticut lets people carry gun so freely, for their own defense what's so bad about doing what I suggest in the hypothetical question?
(Voice Overlap) to frighten people or to use it?
Mr. Edward F. Hennessey: Well, that -- I seem to be going across purposes, but the point is not whether or not it's good or bad, the point is whether or not the policeman was justified in interfering with the citizens liberty or take some action vis-a-vis that citizen at a point where, where the citizen has told him, he is holding a gun within an intent to use it, notwithstanding that he tells to me that he intends to use it for defensive reasons and I think that the point is that the policeman is justified in acting, notwithstanding whether or not the person might have the right to use it for that reason.
That the two are distinct.
Justice Byron R. White: Your claim that the officer wasn't (Inaudible)
Mr. Edward F. Hennessey: Yes.
I would submit yes that, that is part of my claim but that even if it were not, that it makes the case no weaker because the basic point is when does this policeman have a right to confront a citizen, that's where you start I believe.
Kw Well, now assuming that he had reasonable suspicion under Terry to stop the person and make and ask him questions and protect himself during that period he could (Inaudible)
Mr. Edward F. Hennessey: No, it depends on --
Justice Byron R. White: I said assuming the reasonable suspicion under (Inaudible)
Mr. Edward F. Hennessey: Well, that depends on how one reads Terry.
I didn't read Terry to suggest what --
Justice Byron R. White: (Inaudible) suspicion that he does have a gun.
Mr. Edward F. Hennessey: Well, if Terry -- I think that, as I read Terry trying to square it with the Fourth Amendment limitations on any invasion, I read Terry as saying that where situations arose which justified a police officer in making an initial stop or interfering with a citizen's liberty for the purpose of inquiry that there may also be contemporaneous right to make a body search or a body frisk, a pat down for defensive purposes, but I do not think that it follows that every time a police officer has a right to make a stop that he has a concomitant right to make a frisk.
Justice Byron R. White: Well, I am just saying that here the suspicion that he had included that of a gun, he had some reasonable suspicions, thinking he might be in a dangerous situation?
Mr. Edward F. Hennessey: Well, that takes you on further.
Justice Byron R. White: Well, further assume the reasonableness of the suspicion?
Mr. Edward F. Hennessey: Alright.
Well, no I do not know.
The question there again is did Terry say that anytime a police officer has reasonable cause to believe that a person maybe stopped, he may also contemporaneously frisk him or did Terry say, he has reasonable cause to believe that a person has a right -- he has a right to stop the person and he further has reasonable cause to believe that the person maybe armed and presently dangerous to the officer or to the public.
The question then is, is a citizen in Connecticut even assuming you have a suspicion that -- a reasonable cause to believe that he is armed, does that ipso facto make that citizen a person who you have reasonable cause to believe is presently dangerous and I go back to the Connecticut --
Justice William J. Brennan: But suppose there were no gun involved in this at all?
Mr. Edward F. Hennessey: Excuse me?
Justice William J. Brennan: Suppose where no gun involved in this at all, but the machete and the informant had simply said that the officer look at this fellow is a heroin addict and he has got a machete on this person, and you need to of careful, he is likely use it?
Mr. Edward F. Hennessey: It is no different because you have a right to carry a machete in Connecticut.
Connecticut is not only a gun state, it is also a machete state.
Justice William J. Brennan: Well, not a machete, but he has got an iron -- a fire iron on him.
He used that as a weapon supposing even that (Inaudible) --
Mr. Edward F. Hennessey: Well, that would may make it fairly -- that is not even a registrable that a golf club has in fact been held in Connecticut not to be a deadly weapon and not subject to registration, if there was a case on that.
The point that I have been trying to make is let us assume there was no gun at all, let us assume the same person said to Officer Connolly, there is a man in that car with drugs and let us accept the fact that the term drugs were sufficient to place in Officer Connolly's mind illicit drugs and in fact I believe at one time that were narcotics was used and in most other testimony the reference was to drugs.
My claim would be that at that juncture, Officer Connolly had no right to make this confrontation and having a right to make the initial confrontation whether Williams was standing on the street or seated in a car or seated in a house, then therefore nothing followed as a matter of right from that including the right then to make a body search, limited or otherwise.
Chief Justice Warren E. Burger: Suppose the informant at the filling station had said to the officer, there is a car over there and I think there is a hold up at that bank going on, but watch out because he has got a gun in his belt and when the officer approached the car, the engine was running.
Mr. Edward F. Hennessey: Yes sir.
Chief Justice Warren E. Burger: What is your position about his -- scope of the officer's duties and powers then?
Mr. Edward F. Hennessey: Well, I think the scope, it is really not, my opinion the scope of officers' duties or powers.
I think the problem becomes whether or not under the Constitution the officer has a right to intrude upon the liberty of any individual and if the officer is advised as to a certain course of conduct, the officer may then elect to go and investigate that course of conduct.
The question would still come down to whether or not in the course of that election to investigate further, he had a right to search a person, right to search any citizen and I would say under the facts as you have given them to me, it would have no doubt caused him to investigate further, but I do not believe that it would have justified any intrusion.
Chief Justice Warren E. Burger: Investigate further is by doing what?
Mr. Edward F. Hennessey: Well, first of all he would have --
Chief Justice Warren E. Burger: Tap on -- could he tap on the window?
Mr. Edward F. Hennessey: Well, I would assume if the officer would probably be more interested in what was going on inside the bank, not what was going on inside the car.
Chief Justice Warren E. Burger: Well, should he wait till to see if the bank robbery is really completed and then try to have a shootout as they come out of the bank to the getaway car?
Mr. Edward F. Hennessey: Well, that I suppose different.
One policeman might assume that the greatest source of concern to the public at this juncture is what is going on inside the bank, and might elect to go inside the bank.
Another officer might say, maybe I should stake them out and see what I can do when they come out because this might be the safer course from a public point of view.
So it comes back -- always it evolves down on to the officer's judgment and I do not believe every officer would act the same way.
Chief Justice Warren E. Burger: Well, let us accept that, that every officer would not act the same way but has not this Court, and other courts as well said many occasions that the conduct of the police officer must be judged ultimately as it was seen through the eyes of an experienced, prudent police officer at the time and place and in all the circumstances?
Mr. Edward F. Hennessey: No, I do not believe this Court has ever said that totally.
I think this Court has said in judging the conduct of a police officer, consistent with Fourth Amendment limitations on that officer's rights, due regard can be given to the officer's experience and to a subjective standard based on the subjectivity of experienced police officers or a subjective objective standard, but that at some point, this Court I understand it to say, you have to stop just deciding whether or not every policeman would do the same thing, and start deciding whether or not any policeman can do that.
Chief Justice Warren E. Burger: You don't think that the motor of the car running adds any dimension that will alter this case?
Mr. Edward F. Hennessey: I think it adds, yes I think it would a fact.
I think it would add another fact.
I cannot say whether that adds up to a probable cause, I do not think it does, but I think every case, and I think Terry pointed that out, it has to be judged and it is extraordinarily difficult to set limits within the context of this set of facts.
My initial reaction to this case in the light of Terry is that, was Officer Connolly justified in going across and making a search because when Officer Connolly went across the street, he did not have Terry versus Ohio in mind because Terry versus Ohio was two years away at that time.
Officer Connolly knew there was a man, he was told there was a man with a gun at his waist and drugs, and went he walked over to that car, he went over with one thing in mind and he did that one thing.
He executed a body search of that one man to seize the gun, and having seized what he was told, he would find, he decided at that point, he was going to arrest him and that to me is what happened here.
This isn't -- to me this is not what I conceptualize to be a Terry situation which I read as being an attempt to relate the street experience problem of the police officer to the limitations of probable cause.
It's otherwise, I find it difficult to square Terry with the Fourth Amendment.
But, if one says that the police officer has legitimate reason at certain points to make a confrontation and having made that confrontation where the facts present themselves, he then has a right to conduct a limited pat-down for his own safety or for the safety of citizens, then it is more, more reasonable to relate the Terry situation to the Fourth Amendment.
Justice William H. Rehnquist: Certainly, there is language in Terry that goes beyond your rather narrow reading of this, isn't there?
Mr. Edward F. Hennessey: Yes I'd say depending on whose opinion one draws upon.
I'd say some of the opinions I read as being much more broader than that, yes.
But I --
Justice Thurgood Marshall: But Terry isn't -- wasn't -- the officer in Terry was a man of some 40 odd years of police experience in that type of work in that area?
Mr. Edward F. Hennessey: That is right.
Justice Thurgood Marshall: But I do not think Terry is limited to that at all, do you?
Mr. Edward F. Hennessey: Well, looking at the facts in Terry and those that seem to be most persuasive were that when the officer McFadden in the Terry case went towards the three suspects, he at that point believed that he was looking at a daylight stick up, that was part of --
Justice Thurgood Marshall: Well, that wasn't his business.
His business was to protecting the store, the department store?
Mr. Edward F. Hennessey: That was officer McFadden's business?
Well, it did not appear to me that, at that point what he considered to be his business.
Justice Thurgood Marshall: I would not try to get particular.
I think that the Terry case says that when an officer has reasonable ground to believe that a crime is about to be committed and on the basis of that, goes up to question, when he gets there, he feels his life is in danger, he has a right to cuff them.
Now in Terry, there were three or four guys standing there, and each one of them was twice as large as the detective.
So I think that is Terry.
Now, it seems to me in your case, if the informant's information was equivalent to what the police detective in Terry had, he had a right to go there and pat him down.
So your point, it seems to me is whether the informant's information was equivalent to what the detective saw in Terry.
Isn't that right?
Mr. Edward F. Hennessey: That is -- yes, that isn't in the context of Terry that seems to be one of the suggestions of Terry, and the implication as I read Terry was that it was -- that's why I said that it seemed in Terry that this Court was speaking in terms of the street confrontation situation.
Justice Thurgood Marshall: Well, why did you say that this was a reliable informer, that he would have given this man or some other policemen six different pieces of good information which rely in six criminal convictions that that would give him the same rights that the detective in Terry did.
Would you go that far?
Mr. Edward F. Hennessey: I got far.
I would go farther at that point.
I think if you are talking about a policeman being informed by what would satisfy the standards of reliability of contemporaneous criminal conduct being committed than he has a right notwithstanding Terry to go forward and to make an arrest.
Justice Potter Stewart: It means there is probable cause?
Mr. Edward F. Hennessey: Yes he has probable cause and this then gives him the right to go forward and actually confront him and then it would have been irrelevant and that's why to a certain extent even the application of Terry by the Connecticut Supreme Court was irrelevant because the Connecticut Supreme Court decided that there was a reliable informant here.
And this then framed one of the issues which was that issue of reliability.
Since -- I would submit this person as a matter of law was not reliable and I would also submit that under those circumstances that Terry did not intend to fashion a new doctrine which would permit police officers in substance to make searches on less than probable cause.
Chief Justice Warren E. Burger: Do you think we can redetermine the credibility issue in the case here or are we bound by the fact determination made in Connecticut and endorsed by the highest court of Connecticut?
Mr. Edward F. Hennessey: Well, I think this Court can make that inquiry to determine whether or not the case presents one that requires a certain decision.
I don't think if you can make a basic credibility determination, no.
I think the credibility problem might cause the Court to feel that this was not the appropriate case for a particular decision that it sought to render.
But the credibility issue is not substantially in dispute other than that, that we were faced with a situation wherein it appeared that the officer relied on something quite different from what we subsequently testified, he relied on.
Because we did have somewhat of a conflict between the lower court testimony of Officer Connolly and the superior court testimony.
But taking the testimony of Officer Connolly as 100% true, you are still left with, I submit, with the fact situation that does not lend itself to any right of a police officer to go forward and conduct a search based on an undisclosed informant who did meet the test of reliability either test of reliability.
Justice Byron R. White: What was the decision about the informant insofar as telling the truth is concerned?
Mr. Edward F. Hennessey: No, I said it's not of telling the truth, I said so far as the test of reliability, the informant in this case according to Officer Connolly had once six months before told Officer Connolly there was a homosexual activity going on in the Bridgeport Railroad Station and --
Justice Byron R. White: I thought that Judge Friendly indicated that if the informant had said in addition to who he was, and what is his experience with the police had been, if he had said in addition, I saw the gun, that this is -- there would have been probable cause.
Mr. Edward F. Hennessey: No, I don't read that at all, as being what Judge Friendly said.
Judge Friendly went at some length to discuss the basic reliability of the informant.
He even, for example, went so far as to say in his descent that let's assume that this tip that the officer had received, the homosexual conduct had been verified and had led to an arrest.
Judge Friendly also said that in his mind, he did not believe that this would make this person a reliable informant on crimes of narcotics.
So Judge Friendly did not --
Justice Byron R. White: Assuming for the moment that the informer was reliable in the sense of the first leg of the informant reliability --
Mr. Edward F. Hennessey: Right.
-- just assume that.
Mr. Edward F. Hennessey: Yes sir.
Justice Byron R. White: So that the officer was justified in believing the informant was telling the truth.
Mr. Edward F. Hennessey: Alright.
Justice Byron R. White: Your position still is that that doesn't give him reasonable cause, or reasonable suspicion under Terry to make a stop?
Mr. Edward F. Hennessey: Yes, that's right.
Justice William J. Brennan: Well, don't you go beyond that, that even if it did, even if it did, that that would not justify, the fact that he can make a stop would not justify the seizures of the machete and narcotics and arrest?
Mr. Edward F. Hennessey: Ultimately yes, yes.
But that again is -- I am sorry my time expired.
Chief Justice Warren E. Burger: You may answer.
Mr. Edward F. Hennessey: Oh!
My ultimate position is that the case should be viewed not just as an application of Terry versus Ohio to Connecticut or Sibron versus New York to Connecticut, but it also ought to be viewed in the context of the Connecticut law and that the Connecticut law as I view it is different totally from the Ohio law, and the statute involved in Terry versus Ohio was printed I believe at page 1, and it's like the Sullivan one that applied in New York.
But unfortunately Connecticut does not so legislate and I think that makes --
Justice Byron R. White: [Voice Overlap] has decided though that under its law when an officer finds a gun in somebody's waistband they can be arrested and convicted for it.?
Mr. Edward F. Hennessey: Well, yes, but they --
Justice Byron R. White: That's a result of the state court proceedings of this case?
Mr. Edward F. Hennessey: Yes, but the Terry application was merely dictum to that because the Court found in 19 that there was a reliable informant and that it therefore went upon the rights of arrest based on reliable informant.
Justice Byron R. White: That doesn't get you very far because your point is either the informant was reliable, when he finds a gun you can't arrest because it doesn't give you probable cause to arrest.
Connecticut's decision is quite the contrary in this case under Connecticut law?
Mr. Edward F. Hennessey: Well, no because then the tip, if it came from a reliable informant was a tip of two crimes, one being gun and the other being drugs.
If they said that they had -- the officer had a reliable informant who told him there is a man seating over there with drugs.
Justice Byron R. White: I know but they -- they jet him convicted of carrying the gun?
Mr. Edward F. Hennessey: Of course.
Justice Byron R. White: And they let him seize the gun?
Mr. Edward F. Hennessey: That would be true, that would make no difference whether or not the gun was ever mentioned because the drugs themselves would have given him the right to arrest and finding of the gun would have been permissible as an incidental body search after he had the initial right to arrest.
Justice William H. Rehnquist: But you don't have a right to take everything you find in an incidental body search unless it's contraband for use in committing a crime and I take it your argument is that the gun doesn't meet those tests?
Mr. Edward F. Hennessey: No, I think he has the right to remove it temporarily and then the question would be whether or not he had the right to return it, and additionally whether or not he had the right to -- he has the right to remove it part of the self protective body search.
I think that would be so.
And that would be because he has probable cause to believe that this man is committing a felony, so he has a right to remove the gun.
He may not be able to ultimately to charge him because the carrying of the gun maybe lawful.
Chief Justice Warren E. Burger: But now when we come to trying to evaluate what is the law of Connecticut under the statute that you have been arguing namely that he can lawfully sit there 2:30 in the morning with a loaded gun in his belt is not the decision of the Supreme Court of Connecticut, the state law binding on this Court?
Mr. Edward F. Hennessey: Well, my only answer I can give you to that Your Honor is that the State Court decision in Williams which was decided in -- actually the whole case was framed before Terry was even thought of.
And when the Connecticut, the Supreme Court decided, if you examine the facts of the Connecticut Supreme Court, they say that this was an officer acting on what, they used the term reliable informant which has been defined in Connecticut to mean an informant who conforms to the Aguilar-Spinelli test, who had probable cause to believe that a man was committing a drug crime.
And that being so he had a right to arrest Williams and therefore they said also by way of I would submit dictum that Terry versus Ohio was a part of the common law of Connecticut and obviously I, way beyond my time I can't argue that but I don't say it ever was and I don't believe statutorily it can be.
Chief Justice Warren E. Burger: Thank you Mr. Hennessey.
Mr. Browne do you have anything further?
Rebuttal of Donald A. Browne
Mr. Donald A. Browne: I would if I have time left, and I don't know whether I do or not.
I would like to address myself very briefly to the question.
Chief Justice Warren E. Burger: Let me say we will enlarge your time three minutes to conform with the additional time, so you got time enough?
Mr. Donald A. Browne: The question of the possibility of a pistol permit appears for the first time in 1970 when the matter is argued to the Second Circuit Court of Appeals.
In other words, in the superior court Connecticut, in the Connecticut Supreme Court and in United States District Court, counsel for Mr. Williams never advanced the argument which is being made here to you gentlemen this afternoon and which was concededly made in the the Second Circuit court, that being the possibility that he might have had a permit and consequently if he had have had a permit, then his possession of that pistol might not have been a crime.
So consequently, the petitioner, the Warden or the state or what have you, never presented to any of the lower courts any evidence regarding the frequency with which pistol permits are issued by the Superintendent of Police in Bridgeport.
In other words, before Mr. Williams' possession of the pistol to have been legal and not a violation of this particular statue, he would have had to have obtained a permit from the Superintendent of Police in Bridgeport.
Now, that particular issue itself was never framed in any of the arguments at all before the state court that was never presented.
It was never framed within the pleadings of the petition itself for a habeas corpus.
It was argued in any fashion whatsoever before the District Court.
So it took Williams four years from 1966 to 1970 to determine that possibly he might have had a permit that possibly he might not have been guilty of this particular statue which relates to carrying a gun and I submit that accordingly the state or the petitioner here has never presented any particular evidence on that point.
I think that it follows also as to whether or not officer Connolly was justified in arresting him for carrying a pistol without a permit that once he found out that the pistol was there, once he removed that pistol, I think that, that attaches a tremendous amount of reliability or credibility to the balance of the information received in addition to the the pistol, he also had narcotics.
In other words -- and I think that it's a fair conclusion that officer Connolly could legitimately reach that if the man has a pistol and if he has narcotics that he doesn't have a permit to carry that pistol because I am sure the evidence would have shown that pistol permits are not granted without any consideration to anybody that applies for them.
Pistol permits are granted only upon a substantial causative persons entitled to have one.
Finally, the last argument that I would make about pistol permit is of course that the all that was necessary for Mr. Connolly to arrest Robert Williams was probable cause that Mr. Williams had committed the particular crime of carrying a pistol without a permit.
It wasn't necessary that he proved it without a doubt.
I think that again Connolly could have justifiably relied upon his 20 years experience as a police officer in saying that when he placed this man under arrest for carrying a pistol without a permit that if the man had in fact had a permit he would have told him so.
I think he would have told him so emphatically that you can't arrest me for this particular charge, I do have a permit issued by your Superintendent of Police.
Of course finally that there is no claim at all that I can see that in fact he was illegally arrested because he had a permit.
I think it's conceded that he did not have one.
Again, I submit and it would be our position that there is absolutely no indication here whatsoever that officer Connolly knew Robert Williams before this incident, that he was acting out of any desire to harass Williams, that he was acting out of any motive, any improper motive of any sort whatsoever.
Justice William J. Brennan: Mr. Browne, do I get your -- the state's position accurately that you do concede that you can't support the searches, that is machete and the heroin seized from the person without a finding that the arrest was on probable cause?
Mr. Donald A. Browne: The arrest for carrying a pistol, absolutely no.
Without question, the subsequent searches have to stand or fall under --
Justice William J. Brennan: In other words, you don't try to support them on any theory that this was a Terry kind of search and to the extent that -- I mean, Terry kind of detention and to the extent it was, that that would support searches?
Mr. Donald A. Browne: We maintain Terry supports, his seizing that pistol.
Justice William J. Brennan: Yes, but not the evidence?
Mr. Donald A. Browne: Step two, we submit he is legally arrested for possession of a pistol without a permit and step three, we submit that he is validly contemporaneously searched incidental to his arrest which discloses the heroin and which discloses the machete under the seat and incidentally for the purpose of the record as long as the machete is more than four inches in length, it is a crime in the State of Connecticut to carry it.
It's not a crime to carry a knife or the blade less than 4 inches and they represented that the machete was --
Justice Byron R. White: You don't claim the informer's statement was probable cause for a search of heroin?
Mr. Donald A. Browne: No, I don't submit that the informer's tip was probable cause to search for heroin, but I do make the claim relative to the possession of the pistol that the location of the pistol --
Justice Byron R. White: This was Terry, a reasonable suspension?
Mr. Donald A. Browne: The search for the seizure of the pistol, yes.
But I do represent that the information that he also had narcotics and the existence of the pistol is substantially collaborative that he did not have a permit for his pistol on the claim that a person with narcotics would not have a permit for a pistol.
Justice Byron R. White: You aren't making the argument that finding of the gun was collaboration enough of the informer's tip?
Mr. Donald A. Browne: To proceed to arrest for narcotics.
I haven't as yet obviously, my two brace, advanced that argument but --
Justice Byron R. White: You haven't made the (Inaudible)
Mr. Donald A. Browne: I have not as yet.
No, but I would submit --
Justice Byron R. White: You're about to -- you are about to --
Mr. Donald A. Browne: Well, of course obviously it depends again as to whether or not the pistol was validly ceased.
If the pistol is not validly ceased I think the collaboration would go out as a fruit of an illegal search in any event.
But again --
Justice Potter Stewart: The informer did tell the officer that the man sitting in the car across the street had narcotics in his possession?
Mr. Donald A. Browne: Yes.
Justice Potter Stewart: And the officer testified that he had reason to believe that this as a reliable informer?
Mr. Donald A. Browne: That's correct.
Justice Potter Stewart: Why wasn't there -- why don't you at least argue that there is probable cause to search for narcotics?
Mr. Donald A. Browne: Well, essentially on the basis that there has been no showing sufficiently that this informer himself had previously presented sufficient information to make him a reliable informant or truly he doesn't state the basis of his knowledge, he doesn't say that he saw the narcotics or that Williams told him he had the narcotics.
The whole question of course of street arrests is a field of its own.
I am not making any claim -- anything other than the law as set forth Whitney would be governing the situation.
Justice Thurgood Marshall: Judge Friendly said there is a difference between expert on homosexuality and expert on drugs, you agree?
Mr. Donald A. Browne: I can't speak.
Justice Potter Stewart: This is an age of specialization?[Attempt to Laughter]
Mr. Donald A. Browne: The only other thing I would say is that I was a little surprised this afternoon when my brother did make the claim that he felt that it was improper, illegal, unconstitutional whatever you have for Connolly to walk out of the gas station across Hamilton street, in view of the statement in this brief that the case law of recognizing the right to stop applies fairly broad standards in support of such action, the right to execute a search is more reasonably defined.
So that this was the first time that he had claimed to my knowledge that there was an improper activity in moving out of the gas station and across next to the automobile and again as far as the final action in the officer in reaching it and seizing the pistol I think that the one sentence of the Chief Justice in the Terry case that it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties, was completely applicable to the activity of Sergeant Connolly in doing what he did.
As I urged in my earlier argument, I think it's balance of the intrusion involved as against the possibility of a substantial injury or a violent crime upon himself, I think the election which he did was completely proper.
Chief Justice Warren E. Burger: Thank you Mr. Browne, thank you Mr. Hennessey.
The case is submitted.