BROWN v. UNITED STATES

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Argument of Lowell W. Lundy

Chief Justice Warren E. Burger: We will hear arguments next in 71-6193, Brown against The United States.

Mr. Lundy.

Mr. Lowell W. Lundy: Mr. Chief Justice and may it please the Court.

This case, I think factually, if I may state it briefly, presents a simple question of fact in that, the crime charged in this case involved a situation where two men were arrested in Cincinnati, Ohio with some alleged stolen goods which was to be shipped in interstate commerce, and taken across the Ohio River into Kentucky.

The next day, in Manchester, Kentucky, a City Police Judge in Manchester issued a search warrant for state and local officers to go into a store which belonged to Mr. Knuckles and search for stolen property.

The search warrant was signed in blank by the judge, the affidavit was signed in blank by the judge and the District Court held that the search warrant was not worth the paper that it was written on, and he quashed the search warrant.

However, the officers, I think being unaware of that or whether they were aware or not, they went ahead and searched for two days in this man’s store and --

Unknown Speaker: It was quite a number of (Inaudible) wasn't it?

Mr. Lowell W. Lundy: It’s two big trucks wide.

It went on all day, all Saturday afternoon and all day Sunday.

The Court suppressed by motion all the evidence, but only as to the owner of the store.

The court held that the two men who were arrested in Cincinnati did not have standing to suppress the evidence.

The case was tried, and of course all the evidence that were seized in the store was admitted in evidence against the two men who are petitioners in this case.

They were indicted --

Chief Justice Warren E. Burger: How soon after the arrest -- they were arrested with the trucks and with a lot of this merchandise in their possession?

Mr. Lowell W. Lundy: Yes Your Honor.

Chief Justice Warren E. Burger: Then how soon after --

Mr. Lowell W. Lundy: I think it was the next day.

Chief Justice Warren E. Burger: Next day.

Was the warrant obtained as to subsequent to the time they arrested them in possession of the goods?

Mr. Lowell W. Lundy: Yes Your Honor.

After the goods were brought in Cincinnati, word was gotten down to Manchester, Kentucky and all the employees of the store of the merchandising company from which the goods were taken.

He came back to Manchester the next day, as I understand it and he got the warrant from the City Judge.

Now, these men were indicted together with Clinton Knuckles who is also not here.

And the first count charged on them was a conspiracy to move these goods in interstate commerce; charge on the second count was simply transporting goods in interstate commerce.

The third count involved the other defendant who is not here.

Now, the case was appealed in the Sixth Circuit and the Sixth Circuit held, among other things that a harmless error had been committed because the rulings of this Court in Bruton had been violated, and they upheld the District Court’s ruling that these men did not have standing to suppress this evidence.

Now, factually that’s the case that we're concerned with here today.

Now, if I may, I would like to address myself to the question of these men's standing to suppress this evidence first.

Now, the Court will, of course, is aware of the fact, they were indicted on a conspiracy charge.

Now, the goods that were seized in Kentucky to prove the conspiracy could be used to further conspiracy against these petitioners Smith and Brown, but it could not be used to prove the same conspiracy against the co-conspirator and defendant Clinton Knuckles.

You have here one conspiracy which is charged against three men and under the Law of Conspiracy certainly any statement racked down by any co-conspirator during the time of the conspiracy or during the life of the conspiracy is chargeable to all the conspirators.

Any deed, any act or any words spoken by a co-conspirator, it’s charged to the other men.

It’s his act too; it’s his statement too.

Chief Justice Warren E. Burger: Well, if the Sixth Circuit sought that some of these errors were harmless because these men were caught with truck and possession of the large amount of stolen goods, nothing could have altered the result, is that not right?

Mr. Lowell W. Lundy: I don’t think so Your Honor and if you will permit me to I will explain why I don’t think so.

Chief Justice Warren E. Burger: You would concede, that’s a pretty strong case against them?

Mr. Lowell W. Lundy: They had a pretty strong case against them, stealing out of a warehouse in Cincinnati.

If all the stuff was taken out of the store was not used against them, I think they could not have proven a federal case against them, nor could they have proven a conspiracy against them.

Now, I say that for this reason.

At the trial of the case, the court instructed the jury that they must have found these defendants guilty of having committed the third overt act charged in the indictment in order to get the case into Kentucky.

One overt act according to trial had to have been committed in Kentucky, otherwise the Eastern District in Kentucky would have had no venue over the case.

It would have been improper venue.

Now, that overt act charged that these men delivered stolen merchandise, which they had stolen Cincinnati and taken into Manchester, Kentucky.

Now, the Court instructed the jury to that effect that they must -- if they did find them guilty of committing that one overt act, then there wouldn't have been any business of being in United States District Court.

Now, without all these merchandise that was gotten -- stolen in Manchester, Kentucky, they couldn’t have proven that and they wouldn’t have had the venue and they wouldn’t have proven any interstate transportation.

They may have gotten for stealing in the State of Ohio, but they wouldn't have had any interstate violation.

So, from that point of view, I don’t think it was a harmless error.

I think that if, if they -- I look at a harmless error in this manner, if you take the evidence, if you suppress the evidence and take it out of it, we wouldn’t have a chance to beat the case?

We wouldn’t have a chance to win the case?

Now, if you are living in there would you have any chance to win or wouldn't you?

You're living in there, and certainly you wouldn't have, but if you take it out, then they don't have much of a case.

Justice William H. Rehnquist: Does the exclusionary rule apply when if the government attempted to prove venue as opposed to proving the elements of the offense itself?

Mr. Lowell W. Lundy: I don't know Your Honor.

I wouldn't think it would make any difference really.

If it’s suppressed, its evidence is excluded, it is excluded out, say probably for all the purposes.

If you couldn't admit the evidence within the trial except which the government would have to do, then they wouldn’t have proven the venue.

So, I don’t think you would really -- if you suppress it, you suppress it for all purposes.

Now, I am sure this Court is aware that you had -- this Court has rendered decisions in cases which touch up well on this point.

Certainly in the case of Jones versus United States and Simmons versus United States, Alderman versus United States in which a rule has been established that, that man didn't have to come in plain possession or something, rather to have the standing to suppress it.

These either were lots on the premises or there was some possessory interest in it, while he has standing.

Now, I think that in the case which was almost precisely important to the facts of this case, is the decision that was rendered, in July 1971.

It came out of the Second Circuit.

It's United States versus Price.

The facts of the case -- the facts in that case were very similar to the ones in this case and there was a situation where some fellow stole a bunch of TV sets and he took them and hid them in a warehouses at some place.

The warehouse was not in the possession or nor was the defendant present when the search was made in the warehouse and the Second Circuit came to the conclusion that the man had standing to suppress the evidence and they ordered in their opinion they remanded the case for a hearing on that point, knowing that he may establish it.

Now the Sixth Circuit of course in this very case here, and as even in the Price case it involved the conspiracy also.

Now the Sixth Circuit of course has taken the contrary position.

They say that my men had no standing to suppress this evidence.

Carlos worked there and it wasn't a possessory crime and they had no standing to suppress.

Now certainly the law was not complied within this case.

The Judge of the Police Court in Manchester, Kentucky just signed his name to a piece of paper.

He told the County Attorney and we can assume that maybe the City Judge of a small town didn't know any better, being a lame, he told the County Attorney, he said you go and just fill it in, I have got to take my wife to the hospital and I think the man signed another piece of paper for the affidavit, told the county attorney to go and fill it in.

County attorney he filled in the affidavit for the search warrant and he talked to the effect and the purposed effect and that – they did not have enough detail in it and so they tore that up, did another one and then they give this to officers and the officer went down there and searched.

Justice Potter Stewart: I think that everybody would agree one thing in this case that that was a wholly invalid warrant?

There is no issue about that, is there?

Mr. Lowell W. Lundy: The Assistant United States attorney he made it, what was the paper it was written on.

Justice Potter Stewart: And as I understand the government here in this Court that proceeds on the premise that that was invalid warrant?

Mr. Lowell W. Lundy: That is true but I would like to make this of what think a distinction that we're frequently reminded that when the -- because the constable bungles and the felon goes free, this isn't that case.

This is the case where some law officers went in and engaged in an illegal search and seizure because they were zealous, they disregarded the rights of the people and they may have acted out of ignorance.

This is a case where the error was committed by a judicial officer and by a Prosecuting Attorney who should have known better.

Justice Potter Stewart: Was Knuckles ever prosecuted?

Mr. Lowell W. Lundy: Yes he has been tried twice so far.

Justice Potter Stewart: He was not a co-defendant here, was he?

Mr. Lowell W. Lundy: He was a co-defendant here, but this case was standing as to him and that's one claim we will talk about.

Court granted this evidence as to Knuckles because all this evidence said that, all that was seized could not be admitted against him.

But it could be admitted against these other two fellows only here.

Of course, I am sure that the court reasoned that he couldn't just take that (Inaudible) he introduced in evidence and then admonished the Jury, you consider this against Smith and Brown but you forget about that here is as far as Knuckles is concerned.

I do not mean to mislead the Court. Knuckles was not tried with these petitioners.

He has been tried subsequently under succeeding indictment that the government is trying to make the improvements on but --

Justice Harry A. Blackmun: What has been the result of another Knuckles trial, was that a hung juries in both cases?

Mr. Lowell W. Lundy: First case was a hung jury and the second case was a mistrial and the second case was under indictment number two and the third case was under indictment number three and in the succeeding indictments they had two more co-conspirators named in those cases.

But it is very difficult for me to see how if you are going to prove one conspiracy you can use different quantities or qualities of evidence to prove it against different people.

If we three gentleman sitting conspired to commit a crime, it bothers me to think that they can use more use evidence against me then the can against these two fellows.

You all will be able to take same evidence to convict all three of us and you ought to let same the quality of evidence being used as far as all of us are concerned.

Now, this crime that they have these fellows charged with here is not, I would say a possessory crime per se, like you had in the case where the man had the narcotics in the Bird case, Bird and Jones case, but the United States could not prove this case unless it showed that sometime these men had all of this two truck loads of stuffs in its possession.

So I had to prove possession at some point to prove the crime.

Now personally I do not like conspiracies I mean, as a crime, they are devil to defend, it doesn't take much to prove one.

The government has got all the kinds of evidentiary advantages on you.

They just to have to prove the conspiracy that we three fellows sat and talked about violating the law and plotted a little bit, then prove it out, made one overt act.

I commit one overt act, and they got us all. Anything he says, two days and fifty miles away can be used against me too.

The law is very plain in these cases.

Now this Court has spoken on several cases, to the effect that a partnership, a conspiracy, as I partnership in crime that acts and the statements of a co-conspirator made in the course of the conspiracy are admissible against all the conspirators, who were conspirators at that time.

In the trial of this case, the court so instructed the jury in effect and --

Justice Byron R. White: (Inaudible)

Mr. Lowell W. Lundy: Well, I am arguing about this idea of agency in conspiracy to try to reason the way through and if I can't have the court's reason its way through that --

Justice Byron R. White: But the only statements at issue here were made after the conspiracy?

Mr. Lowell W. Lundy: That's true I am not talking about that man.

What I am talking about --

Justice Byron R. White: Wasn’t that the only issue here?

Mr. Lowell W. Lundy: No, sir.

Justice Potter Stewart: What is it, the issue?

Mr. Lowell W. Lundy: I am talking about the fourth amendent.

Justice Potter Stewart: As I understood your point at least in your brief was sort what's sauce for the goose should be sauce for the gander and if the government can take all the advantage of this conspiracy theory than you ought to have some of the advantage of it in holding that Knuckles was a part, a member of the partnership and your agent, isn't that it?

Mr. Lowell W. Lundy: Well that’s precisely if --

Justice Byron R. White: There are no pre-arrest statements at issue here?

Mr. Lowell W. Lundy: No sir.

Justice Byron R. White: Okay, that's all I asked.

Mr. Lowell W. Lundy: I was talking from my documents.

Now the court instructed the jury, and I am referring to Page 226 of the Appendix, where the Court very plainly and it's in quotes, “A conspiracy is kind of a partnership in criminal purposes in which each member becomes an agent of every other member.”

Now if the government can use that, I am entitled of that same thing that they entitled using against my man.

Now if Clinton Knuckles had possession of all of these merchandise in his store and was seized under a no count search warrant, then my men are their partners, their agents, they have joint possession of it.

It is a joint constructive possession and it certainly very logically follows the law on conspiracies.

Justice Byron R. White: Do they have – they are in the possession of the store, do you think?

Mr. Lowell W. Lundy: No sir they did not.

They were in Cincinnati and using Manchester, Kentucky.

Well, it's allowable to use a fiction to convict a man, but I use that same fiction to let him go.

Chief Justice Warren E. Burger: There is the fiction involved in the concept of criminal conspiracy isn't it?

What's the fiction of the criminal conspiracy when they establish that the people have done certain things in concert?

It maybe a fiction to call that a partnership and anybody who does, I am sure it puts it quotation marks either actually or figuratively?

Mr. Lowell W. Lundy: Well I think that what the law is trying to do is trying to take the concept of partnership law and apply it out here to criminal situation.

Chief Justice Warren E. Burger: What cases did we do that in?

Mr. Lowell W. Lundy: Well, that’s been done in several cases Your Honor.

I think that the case out --

Chief Justice Warren E. Burger: Anything that was said about partnership law or was the term partnership in these cases used in a colloquial sense, a short hand for saying that in their criminal conduct, they acted like partners in the sense that it was a joint venture?

Mr. Lowell W. Lundy: Well, it was used in that sense Your Honor but certainly --

Chief Justice Warren E. Burger: Well then you never want to draw in all of the chain of the law of partnership?

Mr. Lowell W. Lundy: Well, I think Your Honor -- I think the government's to allowed to do that when they prosecute the case, except --

Chief Justice Warren E. Burger: But you don't really say that the government invoked the partnership law for the prosecution?

Mr. Lowell W. Lundy: With this man over here there is something ten miles away from me while I am charged with his act.

He says something ten miles away from me, I am charged with his statement that's in the conspiracy case, if he is my partner and we are running a filling station or selling cattle or whatever, whatever he does, I am bound by it.

I think it is a bad fiction.

I mean I dislike to say it but I think the -- I think it's too harsh at all.

I think it's – I think the law of conspiracy if I may refer to Kolowich case and the concurring opinion of Justice Jackson in that case, conspiracy has a bad history, and it derived from the Star Chamber and it has all kinds of connotations of intrigue and besides making (Inaudible) and government had to (Inaudible) and things of that nature.

Chief Justice Warren E. Burger: On this record there was a quite a bit of intrigue here, wasn't there?

Mr. Lowell W. Lundy: Well I don't --

Chief Justice Warren E. Burger: Ever thought about that?

Mr. Lowell W. Lundy: I don't think anything in that nature Your Honor.

The only thing it involves as far as I could see is two folks are stealing and they got caught and they try to make a conspiracy out of that.

I don't think that merits the conspiracy.

The Government used it and thought of that making (Inaudible).

No one buys from another.

Another man from Columbia they make conspiracy out of that, that's a petty crime.

It is used for too many trivial things.

If I may refer to the Simmons case which this Court decided a few years ago, that case says this Court has never considered squarely the question whether defendants charged with non-possessory crimes, like Garrett, are entitled to be relieved of their dilemma entirely and I think like Justice Stewart says I think what's sauce for the goose is sauce for the gander.

Thank you.

Chief Justice Warren E. Burger: Mr. Evans.

Argument of Mark L. Evans

Mr. Mark L. Evans: Mr Chief Justice and may it please the Court.

This case presents principally two questions relating to the application of the automatic standing rule.

First whether it applies where the possession charged is of stolen property, second whether it applies where the possession charged is possession that was at a time other than the time when the search and seizure took place.

I would argue the answer to both of these questions is no.

The case is similar in some respects to the Clums case which was here last term and which the Court disposed off without deciding the automatic standing issue.

On the day that Clums was decided, a certiorari was granted here.

Mr Lundy has detailed the facts.

In essence petitioners Brown and Smith were engaged in stealing merchandise from the Central Jobbing Company in Cincinnati.

They transported the merchandise across state lines to Kentucky where they sold it to Clinton Knuckles, the owner of the Knuckles Dollar Store.

Two months later after the final act of interstate transportation, a defective search warrant was issued and a search was conducted of Knuckle store.

The petitioners were charged with interstate transportation of stolen merchandise and with conspiracy to commit the substantive offense and on a motion to suppress they sought to exclude the evidence that was seized from the Knuckles store.

The courts below rejected these contentions on the ground that the petitioners lacked standing to make them.

In our view, it is clear on these facts that the petitioners have no standing under the traditional standing rule.

That rule requires a showing of an interest either in the premises that were searched or in the property that was seized.

The petitioners here have no interest in the premises that was searched.

It was Knuckles stores.

They have never asserted that they had any interest in the premises and they were not present at the time when the search was conducted, in fact they were in custody in Ohio having been arrested the previous day.

Nor did they have they have an interest in the property that was seized.

There is no proprietary interest because the property was stolen, it didn't belong to them.

There is no possessory interest because they parted with the possession two months earlier.

In other words, their Fourth Amendment rights were not implicated by this search and seizure, to the extent that Mr. Lundy has on argument here attacked the traditional standing rule, I believe that as recently as Alderman it's been upheld indefinitively.

The Fourth Amendment rights are not assertable vicariously and their personal rights and the exclusionary rule is limited to circumstances where one can allege that he has been a victim of an unlawful search rather than one who is aggrieved solely by introduction of evidence that was so seized.

Justice Potter Stewart: What about a traditional conventional kind of partnership, let's say, a law partnership and if something is wrongfully seized, can anyone of the partners complain about it under the Fourth Amendment?

For the sake of the partnership say or --

Mr. Mark L. Evans: Well, the question is a hard one to pose, I think because in most instances the situation will be such that the partner has an interest in the premises that were searched.

The issue is hard to even imagine a situation of a partnership property circumstance where there has been some invasion of the premises researched, but beyond that I --

Justice Potter Stewart: Well let's say, I'm just kind of thinking out loud, that I agree that most law offices, they would have a lease in an office building and every partner would have an interest in that piece of real estate.

But let's say that one of the partners takes something belonging to the sub partnership, home with him, takes to his home.

Does every partner then have a Fourth Amendment complaint if that other partner's home is wrongfully added and the property seized?

Mr. Mark L. Evans: I think it's a close question.

I think we argued on either side and --

Justice Potter Stewart: Because here rightly or wrongly the Trial Judge did tell the jury that this was a partnership, he used that word, didn't he?

226 of the record?

Mr. Mark L. Evans: Yes sir.

When we are dealing with Fourth Amendment questions I don't think that the partnership in the context to this case I mean I don't think the partnership idea really applies, but even if these concepts --

Chief Justice Warren E. Burger: But I wondered if you have -- the way you begun your arguments you have absolutely ignored the arguments of your opponents.

You talked about this case as though it's just another Fourth Amendment case, you haven’t – pay any attention to his argument that this is a conspiracy case and therefore it's different and that the Trial Judge didn't, had the view at least that this was a partnership, that's the word he used?

Mr. Mark L. Evans: My answer to the argument is there are several problems with it.

In the first instance, even if we assume that the partnership concepts are appropriate in their traditional common law sense, the traditional common law rule is there cannot be a partnership for an illegal purpose.

But even putting that aside, the partnership is by Mr Lundy's assertions, coincident with the conspiracy.

The conspiracy ended by definition, the day before the search was made.

They were arrested, they had already given their confession, their statements at the time the search was made.

But in any event even if we go all the way and say that the basis of this constructive possession theory, they had possession at the time the search was made, it's our opinion that the possessory interest in stolen property is not an interest that the Fourth Amendment is designed to protect.

Justice Byron R. White: You would really argue then, if you ran across a fellow with a stolen car you -- under any circumstances you can search the car as long as it's stolen?

Mr. Mark L. Evans: Mr. Justice --

Justice Byron R. White: Just because it’s stolen, not getting to any other basis for the search?

Mr. Mark L. Evans: I think that when we are dealing -- a stolen car is a slightly different situation.

Justice Byron R. White: No property interest?

Mr. Mark L. Evans: Right, there is no property interest.

I would argue I think that such a search could be made that the difference is that in some respects a car is like, I mean you can enclose things within it.

It’s a large place almost like a house even though it's not -- I mean you -- say there as a trespasser on that car and I would argue that the car maybe searched regardless.

Justice Byron R. White: Just because it’s stolen?

Mr. Mark L. Evans: That’s right, now there is a consideration that might lead to a different result, which is --

Justice Byron R. White: There are no cases around like that, are there?

Mr. Mark L. Evans: Not that I know of.

But there is a consideration that could be brought to bear on the other side of that issue and that is that since we are concerned with the deterrent fact of the Fourth Amendment in the standing questions, it could be that where you have a stolen car and it's clear that people can search -- the police can search stolen cars without any more, it might there have some impact on the deterrent effect of the Fourth Amendment.

Justice Byron R. White: Does it make any difference in this case whether there is standing or not?

You really care so as long as there is no interest in the store and it’s conceded that there isn’t, the officers were validly where they were, right?

Mr. Mark L. Evans: Well, if there is standing in the petitioners to assert the Fourth Amendment claim --

Justice Byron R. White: He has the claim, he has --

Mr. Mark L. Evans: I believe that --

Justice Byron R. White: But not with respect to the store.

Let's assume they have standing, they assert an interest in the goods and their legal seizure of the goods.

They may have standing to assert it, but won’t they automatically lose?

Mr. Mark L. Evans: Well, I think not because the --

Justice Byron R. White: It's stolen property, isn’t it?

Mr. Mark L. Evans: It is stolen property.

Justice Byron R. White: The officers have probable cause to seize it, don’t they?

They are legal where they are when they see it?

Well, they are not legally where they are, they entered on --

No, no, we just put aside the fact that they did not illegally enter the store, with respect to this defendant.

Mr. Mark L. Evans: Yes, that’s right.

Justice Byron R. White: I gather your colleague on the other side conceded that he wasn't arguing that partnership in crime gave his clients any any interest in the store that they could assert into the Fourth Amendment?

Mr. Mark L. Evans: That’s right and in our view nor do they have any interest in the property.

Justice Byron R. White: Well, even if they did they would lose?

Mr. Mark L. Evans: I suppose that’s right, yes.

Because the petitioners here lacked the traditional stand -- the standing under the traditional rule they sought to invoke the automatic rule that was established by the Jones case and Jones, the automatic standing rule is a narrow exception to the traditional rule.

In Jones, narcotics were seized during a search and seizure of an apartment belonging to a friend of the defendant while the defendant was on the premises.

He was charged with various narcotics offenses which because of statutory presumptions permitted conviction on showing of mere knowing possessions.

On these facts the court held first that the defendant’s lawful presence of the premises gave him a sufficient interest in the premises to justify his standing to challenge the reasonableness of the search of those premises and to move to suppress the fruits.

Now this aspect of the Jones case is not involved here because as everybody has agreed, the petitioners have never asserted an interest in the Knuckle store.

The Court in Jones could have stopped there, but it went on and it considered whether independent of Jones' interest in the premises searched whether he had sufficient interest in the property that was seized to justify standing.

Now it was of course the fact that Jones possessed the narcotics, that he was accused of possessing and he possessed them at the time the seizure was made.

And it was apparent in the Court's view that had Jones been prepared to come forward and testify as to his possession at the time of the seizure he would have had standing under the traditional rule.

The problem was he was not in a position to come forward, he was not willing to come forward to testify and the reason he was not willing to come forward to testify is because at that time there was a substantial risk that his testimony as to his possession at the time of the suppression hearing could be used against in the trial and as part of the Government’s case in chief.

Because of this dilemma that the defendant was faced with, the Court ruled that he need not make the showing.

Where the government, in its indictment has already conceded in effect that he could make the showing, there was a corollary rationale that was articulated by the Court as well and that is that contrary holding, that is that Jones must come forward or in practical effect would be unable to come forward, would give the government the benefit of inconsistent positions because it would be arguing in a sense at the trial that the defendant possessed the narcotics at the time they were seized; that was the basis of the charge, while the suppression hearing by challenging his standing, they would implicitly be saying that he had no possession at the time of the seizure.

This the Court viewed as not consonant with the amenities of the administration of criminal justice.

The first thing to be said about Jones in respect to the case here is that unlike Jones, the petitioners here have no standing under the traditional standing rule.

As we have discussed they have no interest in the Knuckle store and in our view, they have no interest in the property seized.

In our view, the automatic standing rule of Jones was designed solely for those, who would otherwise have had standing under the traditional rule, but were unable to assert that standing because of the situation that prevailed at that time, with respect to the use of testimony, suppression testimony at a subsequent trial.

Because Brown and Smith have no standing under the traditional rule, we think that they should not be the beneficiaries of the rule, that was designed for those who would have such standing.

Nor does the Jones rationale compel a different -- an extension of the Jones rationale to the -- well, nor does the Jones rationale compel an extension of its rule to the facts here.

Since there was no standing under the traditional rule, these defendants were not faced with the dilemma that Jones was faced with.

His dilemma arose because the testimony that he would have been prepared to give to establish standing could have been used against him.

Here, there is no dilemma because there is no testimony that would establish standing and there is no testimony that -- they are not in the position that Jones was in to come forward and establish it.

Chief Justice Warren E. Burger: As -- because they “partners” and joint venturers, at least if I understand his argument, then Knuckles was the agent of Brown and Smith for Fourth Amendment purposes?

Mr. Mark L. Evans: Well, it's difficult to --

Chief Justice Warren E. Burger: At least I think that's what he is --

Mr. Mark L. Evans: I believe that this is in essence that had been decided in Alderman, at least, appears to be to me.

I mean, the ruling as stated by Alderman is that co-conspirators are not entitled to a search, and other co-conspirators Fourth Amendment rights and if that's the argument that's being made, I think it's been answered.

I don't think that there is any precedent for a vicarious assertion of rights even within a conspiracy, whether you call it it a partnership or not.

Justice Byron R. White: There wasn't any personal property involved in Alderman that was allegedly the joint property of co-conspirator?

Mr. Mark L. Evans: That's right.

The --

Chief Justice Warren E. Burger: The question was one of personal perhaps the – of the conversation?

Mr. Mark L. Evans: I think the same principles is applied here, nonetheless.

Justice Potter Stewart: But in the end, I think it's a wavier of Fourth Amendment right, can't they?

I can't remember the title of the case, the Duffel Bag case, in which --

Justice Byron R. White: Cupp – Frazier against --

Justice Potter Stewart: Frazier against Cupp, where Charles said sure you can go ahead and search my duffel bag and in there, he found of John Smith's effects and we said John Smith has no -- John Smith's rights were waived by the owner of the Duffel bag?

Mr. Mark L. Evans: Well, in a sense, John Smith had no rights in the Duffel bag.

His rights were in the property that was in the duffel bag.

Justice Byron R. White: They were in John Smith's duffel bag?

Mr. Mark L. Evans: That's right.

Well, if his effects --

Justice Potter Stewart: Frazier and Cupp initially was, one was the warden --

Mr. Mark L. Evans: Yes.

Justice William H. Rehnquist: Well, what if the man is wearing a stolen overcoat to spin this thing at one more step.

Do you think the overcoat can be searched whereas in Justice White's analogy, without any other grounds for search, since the overcoat is stolen, the man has no standing to object to its search?

Mr. Mark L. Evans: I think not Mr. Justice because I think in that instance, it would be difficult to argue that his person was not invaded, that his interest in his own person.

I think that's the answer to it.

Justice Byron R. White: What if it was stolen from a person who is in the market?

Mr. Mark L. Evans: The same answer as I have given to Mr. Justice Rehnquist.

I believe that an invasion of what one is wearing even if what one is wearing is stolen, I would think is an invasion of the person.

I would now want to have to argue up here the other side of that issue.

Justice Byron R. White: You would argue that?

Mr. Mark L. Evans: Yes.

Chief Justice Warren E. Burger: I have to argue within a border of search case?

Mr. Mark L. Evans: That's right.

Justice Thurgood Marshall: And wouldn't you also take the position that after they broke in, after they searched Knuckle's place, if they had gone into any of the materials that they found, that might have a problem, but they didn't go into them, is that right?

Mr. Mark L. Evans: You mean if they don't --

Justice Thurgood Marshall: (Inaudible) No one can open the machines that were in the cartons. But they didn't, they just took the cartons, am I right?

Mr. Mark L. Evans: Well, they did.

My understanding is that in the cartons, were things like mens and ladies shoes and that kind of thing and I --

Justice Thurgood Marshall: But they didn't go into any --

Mr. Mark L. Evans: They didn't go in.

But I don't think that it would have --

Justice Thurgood Marshall: Well, (Inaudible) it really wasn't the property of these people?

Mr. Mark L. Evans: That's right.

Justice Thurgood Marshall: And that does put them in pretty good dilemma because they claimed that it is their property, they hung and if they don't they hung --

Mr. Mark L. Evans: Well, I think not because as I have indicated -- they gave up a possessory interest in the property some two months before the search was made.

So even if they were to come forward and make an assertion that they couldn't make, mainly that they did possess it at the time the search was made; I think that the applicable rule in those circumstances would be the Simmons rule, which resolves the dilemma in a non-Jones context, namely the testimony they gave would have not been able to be used against them, that seems to me to be the sensible resolution of the problem.

To summarize the discussion with respect to the dilemma aspect of Jones as applied here, we think it just does not require since there is no dilemma that remains at this point, there is no need to apply the automatic standing rule on our facts.

Nor do we think that the alternative rationale of Jones requires an application of its rule in these facts.

Because in the circumstances we have here, there is no inconsistency of position that the government is forced to take.

The government must show as part of its case in this, in detail that Brown and Smith possessed the Central Jobbing Company merchandise at some point, but that possession was two months prior to the time the search was made.

The government need not deny at the suppression hearing that the petitioners were at one time in possession of the merchandise.

It's a wholly consistent position.

It's argument really is that at the time of the search, there was no possessory interest justifying Fourth Amendment protection.

Well alternatively, even if there was such a Fourth Amendment interest that deserved protection or even if there was a coincident or contemporaneous possession, the possession was of stolen property and possession of stolen property merits no Fourth Amendment protection.

In our view therefore, there is no reason to apply on these facts a rule that was designed to benefit only those who would have had standing under the traditional rule, but for our constitutional dilemma that has been resolved in a different way by Simmons.

The petitioners here seek not a resolution of a dilemma that they face, but really a reaping of an unintended and unnecessary windfall.

There is another issue in this case involving a Bruton violation.

There was testimony at the trial concerning statements made by both Brown and Smith, which were in some respects cross inculpatory.

We conceive this was error but as we detail in our brief, we believe the error was harmless beyond a reasonable doubt and unless there are questions, I would not propose to deal with it further at this time.

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

Do you any further Mr. Lundy?

Rebuttal of Lowell W. Lundy

Mr. Lowell W. Lundy: No, Your Honor.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.