CALIFORNIA v. KRIVDA
Argument of Russell Iungerich
Chief Justice Warren E. Burger: We’ll hear arguments next in 71-651, California against Krivda and Minor.
Mr. Iungerich, you may proceed whenever you’re ready.
Mr. Russell Iungerich: Mr. Chief Justice, may it please the Court.
This case arises after the affirmance of the Trial Court judgment dismissing a criminal case after a motion to suppress had been granted in California trial’s court -- California Trial Court.
It was a People’s appeal.
The facts of the case briefly rose in this manner.
An anonymous female informant placed a telephone call to a Los Angeles police officer and informed him that two persons, named Roger and Judy were living at 1901 Nolden in Los Angeles and were engaged in narcotics activities and were also injecting Methedrine into two children living at that residence.
The officers verified that a lady named Judy Krivda was paying the utilities at that address.
By visual observation and going to that location, they saw two young children playing in the front yard.
They returned at a later date, approximately a week later, and observed several trash barrels next to the curb on the parkway awaiting pick-up by trash collectors.
They also observed trash collectors in the vicinity with a trash collection truck.
They intercepted the trash collectors and requested that the trash collectors empty the well of the trash truck and deposit these particular barrels into the well of the trash trucks, so that they would not be conglomerated with the other trash collected from the neighbors in that vicinity.
Then, a block away from the residence where the respondents, Krivda and Minor, were residing, the police examined the contents of these trash barrels within the well of the trash truck and in the contents of the trash barrels, they discovered four to six partially smoked marijuana cigarettes and other miscellaneous contraband narcotic material.
After this, the officers observed, respondent Roger Minor come from the house and retrieved the trash barrels and placed them on the front porch of the house.
At this point, the officers went to the house; they arrested respondent Minor, affected entry, conducted a further search, and ultimately arrested respondent Judith Krivda.
In this context then, two important questions arising under the Fourth and Fourteenth Amendments of the Constitution of the United States are presented here.
The first is whether Fourth Amendment protection extends to garbage in this case, which has been placed on a curb and for all intents and purposes appears to have been abandoned to the trash collector.
And secondly, whether under the circumstances of this case, the application of the exclusionary rule is constitutionally compelled.
With respect to the first issue, petitioners submit that this case is controlled by this Court’s precedents set in the cases of Hester versus United States and Abel versus United States.
In the latter case, Mr. Justice Frankfurter wrote that there is nothing unlawful in the Government’s appropriation of abandoned property.
And I submit to this Court that it is clear in the context of this case that this property was abandoned and that the respondents herein retained no further privacy interest protected by the Fourth or Fourteenth Amendment.
Under the circumstances of this case it is clear that they were acts of abandonment, first by placing the trash into the trash containers, and secondly, those -- the abandonment of the trash was further confirmed by the fact that the barrels were placed upon the curb for collection by the trash collector.
And finally, I think we can draw a further inference of an intent to abandon by the fact that the residents of the house did not attempt to intercept these trash barrels when the trashmen came to collect them or in any manner attempt to retrieve them when apparently they were within the house, since Roger Minor was later seen to emerge from the house and retrieve the trash barrels.
I think in the context of this case, it is clear that privacy was at in end that the constitution protects through the Fourth and the Fourteenth Amendment, as the Fourth is applied to the states.
Basically, the fundamental proposition that a man’s home is his castle and the things around his house are protected or when we extend privacy beyond these fundamental principles, these fundamental areas, we get into a very tenuous area, where we don’t have a privacy interest, we don’t have annexes that connects the personal Fourth Amendment rights of the individual with the property seized or the place that is ultimately searched or the material that is ultimately examined.
I think that if we look at the text of the Fourth Amendment, it speaks in the possessive that persons have the right to be secured in their houses, papers, and effects that speaks of their papers and effects and that their portion of the amendment ceases, when property is abandoned.
Justice Potter Stewart: You mean it’s no longer theirs?
Mr. Russell Iungerich: It’s no longer theirs.
That’s correct Your Honor.
Justice Potter Stewart: Well, I thought this was a possession prosecution?
Mr. Russell Iungerich: Well, I think the question of possession -- I think that was raised in the opinion of the California Supreme Court in a footnote in California versus Krivda, but, I think that if we analyze, we are dealing with two separate matters here as to whether there’s sufficient evidence to convict and whether there is probable cause for arrest.
And I would present this example to the Court, the example of a man who sees a police officer approaching and at that point he throws a bin with heroine on the ground.
The Courts have said --
Justice Potter Stewart: We see -- there are many cases like that here.
Mr. Russell Iungerich: -- that the bin with heroin -- yes.
The bin with heroin is abandoned, but no Court has ever held that the fact that the man had possessed it recently, had possessed it prior to the abandonment that that could not be used as circumstantial evidence to subsequently convict him of having had dominion and control at the prior point in time, and I think that those two fundamental questions need to be separated.
I think that the California Supreme Court’s opinion, where the footnote suggests that possibly there would not be sufficient dominion and control is inadvertent and those facts were not before the Court, and I think that it is improvident that that statement was made in the opinion.
But, I think that the two questions are wholly separate.
The question here is whether or not the police officers had the right to examine this property in the well of the trash truck and certainly these particular respondents had no fundamental right of privacy protected by the Fourth Amendment in the location, one block away from their home, inside the well of the trash truck or with respect to the matters that weren’t -- the materials that was examined, which had been abandoned by them.
And, I think there’s no question that they voluntarily relinquished all further rights or interest in that property.
Justice William J. Brennan: Would the case be any different if the barrels had been on the back porch, where the trash collectors had to go through the property across the front lawn to get them?
Mr. Russell Iungerich: I think that the case might be fundamentally different under those circumstances.
Justice William J. Brennan: Why, why?
Mr. Russell Iungerich: I think there may be a protection with the areas immediately around the house for the protection of the -- these contents.
In other words, they might --
Justice William J. Brennan: In that circumstance putting the trash in the barrel would not be abandonment?
Mr. Russell Iungerich: Well, I think it would be possibly and I think that it would show an abandonment, but I think that there we would have a conflicting situation.
In other words that it may -- the contents of the trash barrel at that point, may have even though they’re abandoned, may somehow be protected, because the trash barrel at that point is owned by the individual and it is within his backyard for example, as it was in Edwards.
I think that there may be some -- that’s not the situation we have here.
Justice Potter Stewart: That’s because of the protection given to his home.
Mr. Russell Iungerich: That would be correct.
Justice Potter Stewart: Is that correct?
Mr. Russell Iungerich: Under --
Justice Potter Stewart: And it’s adversely true if a -- something in a waste basket inside of his living room, he might have abandon it, conditionally at least, but the reason that’s protected is because his home is protected, does that connect with your point?
Mr. Russell Iungerich: That would be the way I would distinguish the case, yes Your Honor.
That would be, of course, different from the situation in Abel, where the man had vacated a hotel room and the contents were found in the waste paper basket.
There of course, there would be abandonment.
Justice Potter Stewart: That was no longer Abel’s home, because he had given up the room.
Mr. Russell Iungerich: That’s -- that is a --
Justice Potter Stewart: On the other hand, somebody’s property, I suppose, is protected even in such -- in another person’s home, isn’t that right on the Fourth Amendment, if I lend you a chattel -- have I got standing to object to an unlawful search of your home or that chattel is seized?
Mr. Russell Iungerich: Not under the Alderman decision of this Court, I don’t believe Your Honor.
I don’t believe you would have standing.
I think under California, under People’s versus --
Justice Potter Stewart: It’s my property, it’s my -- those are my effects that had been unlawfully searched for and seized.
Let’s say I lend you some guns?
Mr. Russell Iungerich: But, I think there would be a question there as to whether you could raise an objection at that point to the unlawful seizure.
In light of the fact that I think probably, the crucial distinction there would be that the -- there would nothing to indicate the fact of possession to the officer where they’re located in a different location.
I don’t know whether you would have a right of privacy there.
I could see a right of privacy, perhaps where you deposited your chattel --
Justice Potter Stewart: Well, you’ve read to us or you have quoted to us the language of the Fourth Amendment and it talks about a person’s effects and I might -- among my effects, I own three shotguns and I lend them to you to go hunting.
And they’re in your house and there’s an unlawful search of your house and an unlawful seizure of those guns, do I have a standing to object to that?
Mr. Russell Iungerich: I would not think so Your Honor, because I think there again we’ve got a -- we have a question of a -- you have -- actually under those circumstances I think it would be the question of have you assumed the risk that possibly there would be an invasion of your privacy, where you would not be there to assert your own personal rights.
Justice Potter Stewart: Well, this isn’t an invasion of my privacy.
Mr. Russell Iungerich: Well, it’s an --
Justice Potter Stewart: It’s a seizure of my effects in an unlawful search and seizure, and that’s covered by the language of the Fourth Amendment, isn’t it?
Mr. Russell Iungerich: Yes, but I think -- I don’t think that that -- that the coverage of your effects in that sense, I think there has to be some closer -- first, I think there’s -- it’s important to look in terms of the -- further of being secure in those effects, I think somehow your personal connection with the effects has to be manifest at the point to someone outside that they are your effects or that they’re likely to be the effects of someone other than the person who is in that particular dwelling and holding those particular chattels.
Now, I think that under the circumstances, a police officer, for example, would not be able to discern that they were your effects from the fact that you have lend them someone else, and under those circumstances, I think that he would be judging in -- on the basis of the reasonable probabilities involved that they belong to the person in the house and not to you.
And I think under those circumstances, I would -- I think that we might make an exception from the language of the -- as it stated in the Amendment.
I don’t know there’s an exception, but I don’t think it would be applied to that situation.
Justice Thurgood Marshall: Doesn’t -- didn’t the whole point, the other side that the man assumes that his garbage will not be turned over to the police.
Mr. Russell Iungerich: I don’t think that’s a reasonable assumption Mr. Justice Marshall?
Justice Thurgood Marshall: Why not?
Mr. Russell Iungerich: Because I think that when a man abandons property --
Justice Thurgood Marshall: Well, the police was not in the garbage business.
Mr. Russell Iungerich: Well, I don’t believe the police are in the garbage business, but on the other hand, I think the question has to be, does the man -- has the man exposed, as we speak of him as this Court has spoken of him in Katz, where he has exposed this particular material to the public, his privacy interest are in an end.
In other words --
Justice Thurgood Marshall: But I would -- well, suppose the can was covered.
Mr. Russell Iungerich: I believe the can was in this case were originally covered.
Justice Thurgood Marshall: Well, don’t you think that he would assume that nobody would get in there?
Mr. Russell Iungerich: I don’t believe so Your Honor, because it’s well-known that the garbage man himself is going to --
Justice Thurgood Marshall: Well in --
Mr. Russell Iungerich: -- actually empty those cans --
Justice Thurgood Marshall: Well, where this --
Mr. Russell Iungerich: -- possibly observe the contents.
Justice Thurgood Marshall: Well, what county this occurred in?
Mr. Russell Iungerich: It occurred in the City of Los Angeles.
Justice Thurgood Marshall: Well, how many times did the police examined garbage in Los Angeles?
Mr. Russell Iungerich: I don’t have the statistics and I was unable to locate any statistics on the number of times --
Justice Thurgood Marshall: Well, would -- I still say, couldn’t I assume that the police would not look into my garbage?
Mr. Russell Iungerich: I don’t think it’s a question of whether you can assume if the police would not look into your garbage, because I think you could also assume that there’s a likelihood that the police would not search your house with or without a warrant.
There is also a strong possibility that the police would not arrest you.
But, I don’t think that that necessarily shows that you have a reasonable expectation of privacy.
The circumstances are under --
Justice Thurgood Marshall: I don’t know if any -- there is other act of privacy than have my garbage co-mingle with a thousand other people’s garbage.
Mr. Russell Iungerich: Well, I think what that proposition ultimately leads to is that we create a constitutional sanctuary for the disposal of evidence.
In other words, if a man, for example, in changing the facts of our case at this point, but assume the police had not received the telephone call that they did, but it rather received an anonymous -- a phone call from an anonymous informant who said that the man who lived inside his house had murdered his wife.
And that they were unable to verify that, but they did see the trashcans.
And assumes further that this man had dismembered his wife and put her -- and the portions of her body in brown butcher paper inside a can, the police would then -- would under the circumstance of this case if they attempted to look at the contents in the well of the trash truck, would actually be barred by a constitutional rule to the contrary, to the position the petitioner takes in this case.
They would be barred from ever reaching that evidence and this man would be given a sanctuary for the disposal of this type of evidence and actually for the disposal of the body.
Justice Thurgood Marshall: I don’t think we can decide this case without allowing somebody to hide a dead body?
I think if you think we could.
Mr. Russell Iungerich: Well, I don’t think that the -- I don’t think that there -- that most -- well, I don’t think --
Justice Thurgood Marshall: Why didn’t the police just look into the can themselves?
Mr. Russell Iungerich: Well, I think that the police did not look in the can because they felt that perhaps if they were aware of the Edwards decision that that might violate -- well, that -- why did it -- they wanted to get it as far removed --
Justice Thurgood Marshall: (Inaudible)
Mr. Russell Iungerich: Well, I don’t think that -- there is the possibility that if it were still on the curb, there might be a chance of it being within the curtilage.
And, I think it’d be on the safe side that the officers have the cans, you know, had requested in this case that the cans be placed within the well of the trash truck where it was a clear situation.
And I think the only thing I can say in this case that they could account for that is that it was good police work rather than bad police work, in light of the decisions of this Court.
In other words, in this case, the officers tried as best they could to have the minimum possible intrusion.
And I don’t think that one -- a man expects to have a right of privacy in his garbage as a general rule.
He most -- I would think if you ask the general man on the street, actually where his garbage came to rest, he would probably tell you that he didn’t even care.
And, I don’t think that most of us are concerned about the disposition that takes place after, that we are concerned about privacy.
I think the question also as I pointed out, major credit card companies advised their cardholders to cover -- to cut the cards and to actually destroy the cards and mutilate them before they go into the garbage can.
And I think that proceeds on the inference that the public doesn’t expect privacy.
That the public expects, today, at colleges, for example, to comb over garbage, to find whether there’s recycled material, they expect the possibility of dogs or cats or nosy neighbors to look inside their trashcans and possibly scavengers on the street.
And I think under these circumstances, while there maybe a subjective expectation upon -- among some people that there is a privacy interest protected by the Fourth Amendment.
I don’t think that that is a reasonable expectation in light of the fact that the man had parted with control over this particular item of property.
He has abandoned it, and he has done, what is the classic definition of abandonment, he has thrown it away.
I think that it is one thing to say that a man’s home is his castle.
It’s another thing to say that the garbage dump is his castle.
Justice Harry A. Blackmun: But counsel let me bring you back to your concession, I think it was, a little awhile ago that if these cans were on the back porch, the situation would be different.
Mr. Russell Iungerich: Yes, Your Honor.
But I --
Justice Harry A. Blackmun: Who owns the curb on which these cans were standing?
Mr. Russell Iungerich: Well, I don’t believe it’s clear from the record in this case.
I am familiar with the rules in Los Angeles, as far as setback regulations in the county -- or the city in this case would have -- would own that property or have an easement upon the property out in front, on the parkway.
I think under the circumstances of this case however, we are removed even from the point of which the garbage was out at that point on the parkway, because the ultimate examination which took place, took place in the well of the trash truck a block away from the location.
So I think at that point, there’s no question, if there was any element of the curtilage involved here or protection of the area of the domestic economy around the house.
I think however, there’s still no question if the property was abandoned, if the police officers did look into the trashcans at that point and did retrieve something from the trashcans.
That property was abandoned property and under the holding in the Able case it would -- if it is abandoned it would not -- would be reasonable to appropriate it that these officers did --
Justice Harry A. Blackmun: Are you saying that it is not abandoned on the back porch but it is abandoned on the curb?
Mr. Russell Iungerich: I am saying that -- yes, Your Honor, I am saying that.
If we assume that the -- that that is Government land in the front, in other words --
Chief Justice Warren E. Burger: I thought you had responded to Justice Stewart by saying a -- yes, it’s abandoned even when it’s on the porch, but it’s still, in effect, in his house and therefore, protected by the explicit terms of the Constitution.
Mr. Russell Iungerich: Yes, I think I’ve made a slip of a tongue here, when I said that it was -- it is abandoned at the point it’s on the back porch, and that is my position, but there maybe some protection from the Fourth Amendment in the area around the house or connected with the house at that point.
Justice Potter Stewart: Also, I suppose, just to the factual inference, it might be more conditionally abandoned.
Sometimes people put things in the waste basket and while they’re still close to them, they decide to get them back out, yesterday’s paper for example.
And say, well we put that in the garbage can or I want to see an article in it, let’s go out and get it.
Mr. Russell Iungerich: Well, I don’t think --
Justice Potter Stewart: Perhaps if it’s put far from the house, it’s unconditional.
Mr. Russell Iungerich: I would think so, I think that would distinguish the Ward case from this case, where there was an inference, possible inference of hiding something in a can, which differentiated in.
I think that --
Justice William H. Rehnquist: Mr. Iungerich, are you going to address yourself sometime during your argument to the basis for the Supreme Court of California’s opinion as to whether it get -- did decide the case on a federal constitutional ground?
Mr. Russell Iungerich: Yes, Your Honor, I could do that now.
Justice William H. Rehnquist: Just if you’re going to -- I was hoping you would come to it sometime during your argument.
Mr. Russell Iungerich: Well, this question I think is fairly clear from the -- this goes to the argument that the respondent has made -- the certiorari has been improvidently granted, as I would understand you Mr. Justice Rehnquist.
Is that the question?
Justice William H. Rehnquist: Yes.
Mr. Russell Iungerich: Well, I think it’s clear from the opinion that they -- that the California Supreme Court rested its decision on the Fourth and Fourteenth Amendments and not upon any separate ground.
You find no mention of either Article I, Section 19 of the California Constitution, which is the search and seizure analog in the California Constitution or to the Kahan rule.
And, I think the case is just clearly set forth on the -- from the language of Mr. Justice Burke that he relied upon the Edwards and Bradley decisions which maybe ambiguous.
But, he said he relied on them only to the extent that they rely upon like principles in Katz versus United States.
And, I think there is no question from that that he was relying on federal and not state law.
So therefore --
Justice Byron R. White: This case came upon a motion to suppress, I take it.
Mr. Russell Iungerich: Well, --
Justice Byron R. White: Did it?
Mr. Russell Iungerich: It was a -- yes, Mr. Justice White.
Justice Byron R. White: By and -- is a motion in the record?
Mr. Russell Iungerich: The motion to suppress is -- the argument on the motion to suppress is not in the Appendix your Honor.
Justice Byron R. White: What is the motion, was it an oral motion, speaking motion?
Mr. Russell Iungerich: Yes it was, Your Honor.
Justice Byron R. White: Isn’t there a transcript of what kind of a motion was made?
Mr. Russell Iungerich: Yes, it was a motion to suppress --
Justice Byron R. White: On what ground?
Mr. Russell Iungerich: And, it was made on the ground that this was an unreasonable search and seizure -- there were actually --
Justice Byron R. White: Under what?
Mr. Russell Iungerich: Under the Fourth Amendment, I believe.
I haven’t got --
Justice Byron R. White: Well, don’t you think that’s rather -- don’t you think that’s rather important to know what issues were presented to the Court?
Mr. Russell Iungerich: Well, I think Your Honor, the question is --
Justice Byron R. White: But what -- and what the Court was purporting to a -- State Court might well reach the state ground first if the state ground was presented to it.
Mr. Russell Iungerich: Well, I don’t -- I don’t think that that is what Your Honor, what the opinions of this Court, Mr. Justice White, have indicated this Court looks out.
This Court has indicated that it looks to line -- to the decision of the Court itself and examines.
Justice Byron R. White: Well, (Inaudible) in the motion.
Is it around somewhere, or can you find it?
I don’t think it’s in the credit there, it’s not in the credit there, portion, as far as I know.
But is there -- there wasn’t a transcript to the proceedings lodged there?
Mr. Russell Iungerich: Yes, there was no transcript at the proceedings lodged, as far as I know with this Court.
There is a transcript of the proceedings.
Justice William H. Rehnquist: But, wouldn’t a typical motion to suppress made by a defense counsel in the Superior Court in California, raise both state federal grounds, if you’re talking about unreasonable search and seizures?
Mr. Russell Iungerich: Well, I don’t think necessarily they would.
I have heard many motions to suppress them in some California Court, and I don’t think I’ve ever heard one that specifically was argued on the basis of the California Constitution.
The reason for that is our exclusionary --
Justice Byron R. White: Well, the California Supreme Court has decided some search and seizure questions specifically under the California Constitution.
Mr. Russell Iungerich: I don’t think there has ever been a California case that’s decided expressly that the case is determined under the California constitutional article on searches and seizures.
I think that if you examine --
Justice Thurgood Marshall: Is it identical with the federal one?
Mr. Russell Iungerich: It’s identical with the federal one, Your Honor, but I don’t think there’s any case that said that specifically, the question --
Justice Thurgood Marshall: So that in this case if we rule the same way and give you all the relief you want, couldn’t California say, “Well, we’re doing on the state one.”
Mr. Russell Iungerich: I think California could well predicate it further on state grounds, but I don’t think that’s a ground for --
Justice Thurgood Marshall: And what would you win then?
Mr. Russell Iungerich: Well, under the circumstances, we would have a clear ruling that it was not required under the Federal Constitution.
I think that that’s same situation was involved in California versus Byers, which this Court reviewed, which dealt with a federal constitutional question dealing with the Fifth Amendment.
Justice William J. Brennan: Well, didn’t your Supreme Court adopt the exclusionary rule and -- before we ever apply that in Mapp, under the --
Mr. Russell Iungerich: Yes, the --
Justice William J. Brennan: -- and didn't they do it under the -- under your cons -- state constitution --
Mr. Russell Iungerich: No, they did not, Mr. Justice Brennan.
They predicated -- the rule was stated as a judicially declared rule of evidence that was not constitutionally compelled.
And in specific language of Mr. Justice Friendly in that opinion said that absent any compulsion from the Federal Constitution --
Justice William J. Brennan: Well, what about the difference between the standing rules in search and seizure cases that as announced by your Supreme Court and the federal rules?
Mr. Russell Iungerich: Yes, well most recently in the Caplan decision in 6th Cal 3rd, the California Court expressly relied, expressly stated and there’s a clear footnote in that opinion, which states that they do not reach the question of whether that standing rules required under Article 1, Section 19 of the California Constitution, they avoided the question entirely.
I don’t think the --
Justice William J. Brennan: What did they predicate it upon?
Mr. Russell Iungerich: They predicate it on the fact that they were relying on the -- that this rule had continued, since the Kahan days.
And that they did not feel that since it had been an established practice in California for such a long period of time that it should be overturned.
And, I think they distinguished in the opinion, the question of standing from a question of Fourth Amendment protection.
Justice William J. Brennan: Now -- you’re comparable Fourth Amendment provision in the California Constitution, literally tracks it, that’s not identical in phraseology with the Fourth Amendment, isn’t it?
Mr. Russell Iungerich: It has a one liner difference, they’re virtually identical.
The difference is that seizure and search rather than search and seizure.
Justice William J. Brennan: Now, you’re familiar I am sure with your Supreme Court’s opinion in the Serrano case, doesn’t involve this issue, but the tax case?
Mr. Russell Iungerich: I am familiar with the case; I am not familiar with all the facts in the record in that matter Your Honor.
Justice William J. Brennan: Now, I was thinking of the opinion, I noticed reading the opinion yesterday that while -- like this one, it’s all -- relies upon the federal constitutional decisions, decision of this Court, in reaching the conclusion to unequal protection grounds, you got to drop the footnote, which is said the question under the state constitution was raised and since the state constitution or provision is virtually the same, but we say here for the Federal Constitution goes for the state constitution.
Mr. Russell Iungerich: Well, I don’t think that that’s clear from the California decisions.
Justice William J. Brennan: In this case?
Mr. Russell Iungerich: In this case and under the search and seizure question.
And secondly, --
Justice Byron R. White: Well, could I -- could we have the -- would it be possible to get that transcript from -- or some supplement that -- indicating what the motion was?
Mr. Russell Iungerich: Yes, I certain can, Your Honor, possibly be the end of the week, since it would be --
Justice Byron R. White: Oh!
Thank, alright thank you.
Chief Justice Warren E. Burger: Well, you supply that then?
Supply a copy to your friend.
Justice William J. Brennan: Now, and again, last term in the death penalty cases, the California Supreme Court clearly rested its decision in death penalty cases on the California Constitution, and said so, didn’t it?
Mr. Russell Iungerich: Yes, it did.
Justice William J. Brennan: Well, is that the practice of that Court when it does it, to say so?
Mr. Russell Iungerich: I think it most certainly is, Your Honor.
I think that they most clearly come forward and state that they are relying on that and as the Anderson case strike --
Justice William J. Brennan: And yet, it’s only a few years ago, I can’t remember the name of the case, we had to send one back to the California Supreme Court, because we couldn’t tell, reading its opinion whether it rested on a state or a federal constitutional grounds.
And they reviewed it, and said, “Well, anyone who can read would know we rested it on state constitutional grounds, I couldn’t.”
Mr. Russell Iungerich: Well, I think we don’t have that ambiguity in this case.
I think we must be --
Justice William J. Brennan: Why don’t we?
Mr. Russell Iungerich: -- referring Mr. Justice Brennan to the Kirchner opinion, but I don’t think --
Justice William J. Brennan: Kirchner is what I am referring to in here.
Mr. Russell Iungerich: But I don’t think we have that same situation in this case, because there isn’t any ambiguity in this opinion.
And, I think the case is that --
Justice William J. Brennan: It doesn’t read -- it reads to me much as Kirchner opinion did.
Mr. Russell Iungerich: I think the difference here is that the California -- Mr. Justice Burke expressly states in this opinion that he’s relying on California law only to the extent that it is compelled by Katz in the decisions of this Court.
And, as clearly indicated in -- they could indicate some possible reference.
In the other decisions, they did mention in their prior decisions and garbage collection cases, the Edwards decision and the Bradley decision, they indicated that the case did have some emanations from the California Constitution whereas, in this case, there were none.
Chief Justice Warren E. Burger: Thank you.
Argument of Roger Hanson
Mr. Roger Hanson: Thank you Your Honor, Chief Justice Burger, may it please the Court.
I’ll pick up where Mr. Iungerich left off here, because I think it’s important for this Court to realize that this case, People versus Krivda was a second California garbage can decision.
The first case, People versus Edwards, 71 Cal. 2d 1096, dealt with a situation slightly different.
In Riverside County California, which is a more rural type of county, the police walled at the back fence of the home of the Edwards’, came upon their property, went into the garbage can and that garbage can was setting on the back step.
In that particular case, the California Supreme Court held 5:2, specifically stating, under Article I Section 19 of the State Constitution that it was an illegal search and seizure, also relying of course on the Fourth Amendment.
And I think in this particular case, there is no ambiguity whatsoever and I would like to call the Court’s attention to my brief, starting on Page 91, I have cited verbatim the Edwards opinion, excerpt from the Edwards’ opinion.
I’d like to simply call that to the Court’s attention on Page 92 of my brief.
It says accordingly that search was unlawful under the Fourth Amendment of the Federal Constitution, it similarly violated Article I Section 19 of the California Constitution.
The Trial Court does error in admitting the evidence found in the trashcan, People versus Edwards, 71 Cal. 2d 1096, at Pages 1104 and 1105.
Now, in the Krivda decision --
Justice William J. Brennan: And Justice Burke wrote that opinion, did he?
Mr. Roger Hanson: Yes, Justice Burke wrote that opinion and Justice Burke also wrote the Krivda opinion.
Going over to Page 93 of my brief at Page 367, the California Court said and I quote now from Krivda, “It is also clear, as in Edwards, that defendants’ reasonable expectation of privacy was violated by unreasonable government intrusion.
See People versus Edwards, supra, 71 Cal. 2d 1096, 1104-1105.
We should hesitate to encourage a practice whereby our citizens’ trashcans could be made the subject of police inspection without the protection of applying for and securing a search warrant.”
Justice William H. Rehnquist: Mr. Hanson, you contend I take it that’s patent that the Supreme Court of California relied on the state ground.
Your opposing counsel apparently contends that it’s equally plain it relied on the federal ground.
If we should be in some doubt, wouldn’t the natural thing for us to do under our presence be to remand under Minnesota versus National Tea and that line of cases?
Mr. Roger Hanson: Well, I don’t think there’s any ambiguity --
Justice William H. Rehnquist: Well, supposing we should conclude there is?
Mr. Roger Hanson: Well, I suppose --
Justice William J. Brennan: Well, that’s within Kirchner.
Mr. Roger Hanson: That’s within the decisions of this Court but I just don’t see --
Justice William J. Brennan: But isn’t it -- Mr. Hanson, that just that we did it Kirchner.
Mr. Roger Hanson: Well, I’m not familiar with Kirchner, Your Honor, I’ll be honest with the Court.
But in this particular case, there’s no question that Edwards overtly was decided on Article 1 Section 19 --
Justice William J. Brennan: Well, there’s equally no question, I gather that not as overtly at least, Krivda, the Krivda opinion makes the reference to it.
Mr. Roger Hanson: I disagree with that, because it cites the exact paginations where this decision is found, 1104 and 1105 of 71 Cal 2d 1096.
Justice William J. Brennan: I see.
Mr. Roger Hanson: I would appreciate the Court parous Pages 91, 92, 93 in my brief.
I think it’s as clear as a bell, no question about it.
Justice William J. Brennan: And that incorporates those, the very discussion of it.
Mr. Roger Hanson: Very definitely, very definitely.
Justice William J. Brennan: California Constitution.
Justice Thurgood Marshall: The oppositions, they only way they could make it clear, because they didn’t put the quotes in there.
Mr. Roger Hanson: Well, --
Justice Thurgood Marshall: It’s the only way.
Mr. Roger Hanson: I don’t see I could be --
Justice Thurgood Marshall: And, that that’s not necessary once that you cite the pages, isnt’ it your position?
Mr. Roger Hanson: That’s correct, that’s correct.
Justice Byron R. White: Could I ask you?
You made the motion apparently in the lower court?
Mr. Roger Hanson: Well, I was not trial counsel at that time.
Justice Byron R. White: Do you know -- have you read the record?
Mr. Roger Hanson: No, I haven’t.
Justice Byron R. White: You don’t know then whether the state ground was ever presented to the State Court.
Mr. Roger Hanson: No, I do not.
But it certainly was decided --
Justice Byron R. White: Let’s assume it was not.
Mr. Roger Hanson: Well, I don’t think that matters, I think it’s what the California Supreme Court decided in this case, and they decided that was illegal under the state constitution --
Justice Byron R. White: Well, I know you say, let’s -- you’re arguing that they did decide under the state constitution, and yet they didn’t say so expressly.
You say they did.
I don’t see it in there expressly, but would it make any difference in the interpretation of their decision as to whether that ground was even before the Court or not?
Mr. Roger Hanson: I don’t think so.
Not in the opinions of this Court.
I think in all of the opinions in this Court, the Court simply goes to what the State Supreme Court based their opinion on.
That’s my understanding in reading of Minnesota versus National Tea and so forth.
Now in addition, I that that the second point is it really doesn’t matter, because under this Court’s decision in Cooper versus California, which I’ve cited repletely in my brief, it doesn’t make any difference, because the State Supreme Court of California is permitted, as far as this Court goes, to provide more stringent Fourth Amendment Protection and this Court is mandating under Federal Constitution.
And, I think impliedly, impliedly the California Supreme Court has given protection to the domestic garbage can.
Now, I am familiar with the fact that the Supreme Court of Wyoming and the Supreme Court of Oregon and several of the lower federal courts have not gone along with protection of domestic garbage cans, but that is not immaterial, because I think that Cooper versus California stands as authority for the fact that a state Supreme Court can give more rigid Fourth Amendment protection to its citizens if it wishes too.
Justice William H. Rehnquist: But isn’t that just the situation that obtained in Kirchner and obtained in Minnesota versus National Tea, this Court didn’t question the fact that the state could afford broader protection than the Federal Constitution, but we felt it was unclear, whether or not the state had felt compelled by the Federal Constitution or was acting under it’s own edges.
Mr. Roger Hanson: Well, all I can again certify to this Court is that in the Krivda opinion, it’s cited specifically, Pages 1104 and 1105 of the Edwards decision, which was very explicit on Article 1 or Section 1, Article XIX of California Constitution.
Now, while it did not say we are going beyond the Federal Constitution -- I agree to that.
It did not say that in this opinion, we’re going beyond what the Federal Constitution requires in giving protection to this garbage can.
Certainly impliedly, that’s what happened in this particular case.
The California Supreme Court I think is a very erudite court.
If the courts study these things very closely, it is probably the leading State Supreme in United States.
And I think that these cases were very thoroughly studied by that court and it gave this protection.
Now, one thing I think that is very important in this decision is there has always been, from the point of view of the State of California that this property was abandoned.
Now it’d be my contention, if it please the Court that the concept of abandoned property deals with not federal matters, it deals with what the State Supreme Courts decide -- constitutes abandonment in the State of California.
Now, my opponent has cited in his brief, certain law review articles.
He cited the law of the State of New York, but the question is what is law of the State of California concerned with abandonment?
I think first of all we got to say that anybody that really overtly places contraband in the trashcan or deals with contraband as vitally concerned with what happens to that property.
This is after all a prosecution for a possession, and if it’s a prosecution for possession, the people are deemed to still have some type of possessory interest in this particular problem.
Justice Potter Stewart: Well, I thought the theory was only that it was circumstantial evidence of the fact that they did have possession.
Mr. Roger Hanson: Well, surely that’s correct.
Justice Potter Stewart: Not that they still possessed it when it was in the garbage can.
Mr. Roger Hanson: All right, very well, but the question is, are they concerned as to what happens to it and who thereafter may get a hold of it?
And in our Supreme Court decision of People versus Erwin, which is the 1 Cal 3d. 423 opinion, the Supreme Court of California again says the following, “Abandonment is defined as a voluntary giving up of the thing by the owner, because he no longer desires to possess it or to assert any right or dominion over it.”
And now, the important thing, “And as entirely indifferent as to what may be come off it or as to -- or as to who may thereafter possess it.”
And, I would suggest to this Court that if in fact we have a bona fide dealing in contraband, anybody that does that, you’re dealing in cocaine, you’re dealing in heroin, I deal with these people all the time out in California in defending them.
They’re vitally concerned with what happens to it and so under the strict definition of abandonment, it is not been abandoned as defined by the California Supreme Court and that is not, I would suggest to this Court a constitutionally issue, which this Court may take a look at.
Question is what is our State Supreme Court said about it, I say that they have said that it is not abandoned in this particular case.
Now, further more the decisions of the California Supreme Court again in the field of search and seizure in our Marshall decision of 69 Cal 2d 51 and then our McGrew decision, 1 Cal 3d. 404, there is language in those decisions as specifically preclude the going into close opaque containers without a search warrant.
That does not confide the containers in the home, there’s a (Inaudible) decisions, McGrew Abt, so forth in 1 Cal 3d., which proscribed going in to close containers at airports.
So, we have a closed garbage can here.
Not only do we have a closed garbage can, but within that closed garbage can, we have closed opaque brown bags.
And they could not have gone in those bags without violating the California law, without getting a search warrant.
Now, the fact that they didn’t do that, of course, is because the garbage hollers employed the police, as the police -- the garbage hollers as police agents, told them exactly what to do, intercept the truck a block away from the house, go pick the stuff up, make sure the well of the truck is cleaned out so there’s no commingling, take it a block away.
They directed everything they did and it’s my contention that these garbage hollers became police agents for the purpose of this particular pick up.
Justice William H. Rehnquist: I think Mr. Hanson the Supreme Court of California used the word requested, didn’t it, when it spoke of the context between the police and the garbage hollers?
Mr. Roger Hanson: Well, I don’t know, I’m sure that they probably requested, and they requested or commanded or demanded, there’s something other than -- I suppose it was a friendly confrontation, I don’t know exactly how it --
Justice William H. Rehnquist: Do you think there’s no difference between the word commanded and requested?
Mr. Roger Hanson: Oh!
I’m sure there is, usually a difference between requested, but you know, garbage hollers are in generally not the most educated people and they -- I think they’re more compliant with request of police.
I don’t think they questioned anything that they want them to do.
They went ahead and did this.
And I think under the general Stoner versus California and Chapman versus United States rationale, it is expected that a maid will clean your room, but it is not expected she’s going to lead them on a tour of your possessions.
When you rent a house, it’s expected that the man may come in to inspect the premises, but it’s not expected that he’s going to bring the revenue agency in under Chapman versus United States.
I think that is axiomatic in this particular case.
It is not expected that these garbage hollers are going to comply with the request of the police department.
Now, furthermore --
Justice Harry A. Blackmun: Mr. Hanson let me interrupt you there.
Your opposition to the Attorney General in his reply brief contends that a City of Los Angeles Ordinance exempts city officers, such as policemen, from the general prohibitions against tampering with garbage containers.
Do you agree with that interpretation of that ordinance?
Mr. Roger Hanson: No, definitely not.
I think the Court’s attention must be referred to Section 6603 of the City Code and Section 6629 of the City Code.
Now, if -- it’d be contended that officers are exempted, they’re certainly employees of the city.
And Section 6629 says this, it says “No employee of this City shall remove or dispose of for said employees benefit or use any of the contents of any vessel, tankers, receptacle used for the collection, removal or disposal of rubbish.”
So, I think -- I -- first of all I’m not conceding whatsoever that an officer in the context of view there is a police officer.
I think that’s a garbage officer of some nature.
There must be a chain of command in the garbage business also.
And I am not suggesting that this in any way permits police officers to go after this.
I don’t think it does at all.
In any way they’re employees and so Section 6629 does not permit them to do this.
While in general, I admit the rationale of this Court in Abel, but nonetheless in California versus Krivda, we have a very heavy regulation on California garbage, very heavily regulated and it just absolutely precludes this particular behavior that took place in this case.
And, not only does the municipal county ordinance is precluded but they taken in context with the Ninth and Tenth Amendment to U.S. Constitution, suggest to me that where the states have not overtly legislated and/or the Federal Government has not overtly legislated then it is up to the citizens, acting through their municipalities, to legislate and these statutes actually absolutely preclude this type of confiscation of the garbage can.
Now, those are the threshold of the laws and I would like now to address myself to the merits of the case.
Anybody that says in recognizing the certified question, and certified question came up to this Court was whether there is -- whether anybody who takes contraband and puts it an a garbage can and puts to that curb side, exhibits a reasonable expectation of privacy that that garbage will not be viewed in the well or the bin of the garbage truck some distance away from pick up and prior to commingling.
Now, I have a little garbage truck here which I purchased over in Virginia yesterday and this little garbage truck is one exactly like that we have in California and to ensure that the Court understand what California garbage trucks look like, this is what they talk about when they say the well of the truck, this is the well of the truck back here.
And characteristically, these trucks move along the streets in California and they have a very heavy schedule to meet.
A lot of homes to meet and there will be a man standing on the back of this truck and a man driving the truck, and they will drive up to a home, this man will jump off at the back of the truck, he will take the cans, he will append them into the well.
He will hit a hydraulic button and within 2 or 3 seconds, it is elevated into the truck.
Within 2 or 3 seconds, it is elevated into the truck.
There’s absolutely no opportunity, no practical opportunity at all for this to be viewed in the well of the truck.
This is a very smelly place, it is covered with dust, when they dump these trucks, these cans in here, there is an emanation of dust that comes out of the end of it, I would suggest to this Court that it is not practically nor reasonably to expect that anybody is going to view what’s going on in the well of that truck, that button is hit, it is gone in three seconds and actually, even though this model of the truck has a top of it gone, the California garbage truck is closed there and this garbage disappears into that truck within the twinkling of an eye and nobody ever sees it again, until it is out to the dump.
And, in California, one of the big uses of garbage is for landfills.
We have a lot of mountains out there, and they are dumped in mountains and they are covered over with bulldozers.
Now, I have a movie with me and if the Court would take a look at it before this court decides this case.
It is two minutes and 57 seconds, it is a totally unrehearsed movie, which is in color in 16 millimeter and it shows California garbage, I --
Justice William J. Brennan: (Voice Overlap) seen?
Mr. Roger Hanson: What’s that?
No, it’s not but I presumed there’s a -- [Laughter]
-- because of the cases that are coming up.
Chief Justice Warren E. Burger: Perhaps more important, is it in the record?
Mr. Roger Hanson: No, it’s not but nonetheless it is argument at least.
It is argument at least and it is factual, I represent to the Court that it is not posed; it is very correctly done; it is done by myself supervisingly taking the pictures of how they actually pick up garbage.
It shows the California’s smog levels, there’s a demarcation in California of a brown bell of smog in blue sky.
And that is another reason why this has to be done in California.
Justice Thurgood Marshall: Did the respondents in this case have anything to do with that picture?
Mr. Roger Hanson: Is what?
Justice Thurgood Marshall: The respondents in this case?
Mr. Roger Hanson: No, they did -- the respondents, no they did not.
Justice Thurgood Marshall: Well, how will that help their position in this case?
Mr. Roger Hanson: Well, because it’s very typical how it’s done Mr. Justice Marshall.
Justice Thurgood Marshall: Well, I mean if he thinks its private, does that help him or not?
Mr. Roger Hanson: Well, it shows, the question again --
Justice Thurgood Marshall: Does your position that this man knew that all these things have in the garbage?
Mr. Roger Hanson: If he is at all that alert, he knows that this is what happens to him, because I’ve seen many --
Justice Thurgood Marshall: Well, then why do you need the movie?
Mr. Roger Hanson: What’s that?
Justice Thurgood Marshall: Why do you need the movie?
Mr. Roger Hanson: Well, I thought it would help the Court to confirm my contentions as to how California garbage is picked up.
If the Court will view it I’d appreciate it.
One of the things that I think is very important here is really the California said is it operates under a contract of adhesion early.
He cannot get rid of the garbage in any other way.
You can’t burn California garbage.
You can’t do anything like that, because of the smog levels out there.
The only thing you can do if you want to get rid of a drawl, just carry it out to the curb side.
You can’t leave it behind your house, because if you do, they won’t pick it up.
You maybe be able to do that in some of the small towns I don’t know, but in the City of Los Angeles, the only way you can get rid of it and it’s covered by these statutes in my brief, is to carry it out to the curb side.
And, the California Supreme Court, even in its dissent, in its three-man dissent in the Krivda case, recognized the right of privacy in that can when it was on the back step of the home.
But, somehow and I contend this is an intellectual non sequitur, they seem to lose three votes when it was carried out to the curb, and I don’t understand that because this is what people have to do.
If you did not do that you would have the home being engulfed in garbage because you never get rid of it.
You have to carry it out to the curb and get rid of it.
And, they’re doing -- my clients were doing only what they had to do in order to get rid of this.
We have a very regulated situation in California, and I don’t think that these people can be held to have given up any right of privacy simply because they had to carry this can out to the curb side in order to get rid of it.
And so therefore in my opinion there is no distinguishment between the Edwards case and the Krivda case in the State of California.
Now, I think also of great importance is the following: Is there a possibility of detecting contraband under these circumstances.
I defend in California a lot of drug cases.
I have never seen, never seen at all even licensed chemist who are able to detect contraband without doing analysis and I’m talking here about marijuana and pills and so forth.
You can’t tell the majority of white pills are morphine tablets.
So therefore you have a university trained chemist who has to make quite extensive test to detect contraband and therefore I would contend that the average person who would have a split second chance to view contraband in the well of this garbage truck would have no chance, no chance at all to detect it whatsoever.
He could not possibly detect it.
Justice Lewis F. Powell: You say that garbage ultimately goes in Los Angeles?
Mr. Roger Hanson: It goes to a landfill Mr. Justice Powell, where it’s plowed over by bulldozers to make landfill --
Justice Lewis F. Powell: And frequently is it plowed over by bulldozers?
Mr. Roger Hanson: All the time, they’re out there all the time.
When those trucks bring it out they are constantly out there, weaving back and forth on the land and disposing of it.
Justice Lewis F. Powell: There’s no incineration, are they?
Mr. Roger Hanson: In general, well, there maybe, yes, there maybe, but that’s in this movie also.
I’d like to have the Court take a look at it.
This is an unrehearsed movie of the California dumps, showing where this, what happens in this stuff?
Justice Thurgood Marshall: Did the lower court see that movie?
Mr. Roger Hanson: No they didn’t, I have made this movie two weeks --
Justice Thurgood Marshall: Did anybody see it before now?
Mr. Roger Hanson: No, nobody had seen it.
But I again offer to this Court for the realization as to what takes place in California garbage dumps.
Justice Thurgood Marshall: What if your client is getting rid of this marijuana, do you equate that to abandonment?
Mr. Roger Hanson: No, I don’t.
I equate this to a requirement as to how you have to dispose of something, it’s not --
Justice Thurgood Marshall: What’s the difference between getting rid of something and abandonment?
Mr. Roger Hanson: Well, under the general idea of abandonment as far as I am concerned, abandonment would be just some free will, free desire to get rid of something.
Here, you have a very regulated way that you have to do it.
You’re disposing of something pursuant to statute, pursuant to statute.
You can’t do it any other way in California, unless you want to get into the business yourself --
Justice Thurgood Marshall: You don’t know of any other way to get rid of a marijuana but than to put it in the garbage?
Mr. Roger Hanson: Yes, I think you could flush that down the toilet or some people do who are kind of hard press for it, they’ll roll it over again in a new cigarette, I think you could do that.
But, I don’t know, I had never fooled with it myself, other than represent these people but I am told that they will recycle their marijuana into new cigarettes when it gets down to the end.
Now, one thing I think that we got to distinguish here is -- I am sure the State of California is probably not suggesting widespread indiscriminate searching of garbage cans.
If they are, I would contend, as I have in my brief, if this is a mathematical impossibility.
It’s a statistic impossibility that there is just no possibility that this is going to be successful when you talk about the number of police that can be devoted to it versus number of garbage cans.
So therefore, we have to talk about a situation where there’s some type of information, some type of premonition that a can contains contraband and in those particular circumstances, I contend that the search warrant is a preferred way, Aguilar versus Texas, Spinelli versus United States, Whiteley versus Warden of Wyoming State Prison, and all the various decisions of this Court which actually require -- and I suggest also Coolidge versus New Hampshire.
As I read Coolidge in the 91 Supreme Court addition 2022 at Page 2047, this Court has restricted the particular ways of seizing things anymore to either a search warrant or its incident to a lawful arrest.
And so, instead of trying to muddy up the waters, instead of trying to complicate the deal with search and seizure, this Court has simplified it by curtailing the means by which somebody can seize something.
So, I think there’s just a host of decisions going to the merits of the case, going to the law of California, going to the decision of the California Supreme Court, invoking Article 1 Section 19 in the Edwards case and incorporating that to Krivda case would just absolutely preclude this type of thing from happening.
And I think the decision of this Court should be nine to nothing affirming the opinion of the California Supreme Court in this particular case.
I just can’t see how it can be anything else under the various things that have happened --
Justice Potter Stewart: Well, if it’s -- if the opinion of Supreme Court of California rests on a state law ground, we wouldn’t affirm it, would we?
Mr. Roger Hanson: You mean --
Justice Potter Stewart: None of my business?
Mr. Roger Hanson: Dismiss it for want to --
Justice Potter Stewart: We wouldn’t affirm it, we wouldn’t reverse it, that’s matter for the state.
Mr. Roger Hanson: Well, that maybe true.
Justice Potter Stewart: Jankovic -- you cite the Jankovic case --
Mr. Roger Hanson: Indiana Toll Road.
Justice Potter Stewart: -- in your brief, we dismissed it, didn’t we?
Mr. Roger Hanson: Right, right.
Now, I think there’s one other area I want to touch on in the closing minutes here.
I think there’s a very pragmatic situation in this particular case.
I think that if this Court would at all sanction a search of garbage cans, it is an avenue, if you open up numerous areas of fraud, because a garbage can as this Court I think is almost a judicial notice can be loaded by somebody who wants to get rid of somebody else.
If I want to get rid of my neighbor, I’ll go and deposit marijuana in the can, I make an anonymous phone call to the police department, I say, “Mr. Jones at 123 Main street has marijuana in the garbage can,” Zoom! They come over, they descend on the can, they search it, they find marijuana and he is off to the poky.
And if you don’t think it’s difficult to defend these drug cases in California, well you got another thing that coming, because I did -- do it all day and it’s very emotionally laden and it’s very difficult to get these people off, if they’re caught in anyway with narcotics before a jury.
They think that they’re guilty, there’s no way you can do it, and I would suggest that if this Court any way gives any credence to the desire to the California Attorney General, we have some problems, we have some severe problems in this particular case.
I think also, I think also we have the final threshold question as to the right of privacy of people to live their lives, to dispose of their life’s tracings if might be birth control, residue, or if it might be a particular liquor that they want to use or something I think that it is a severe encroachment upon the right of privacy, if this Court would in any way suggest that the California Police should be given the right to indiscriminately search these cans.
Citing Griswold versus Connecticut, I think that the birth control privacy, the bedroom should be extended to the -- getting rid of that birth control material out into the garbage can.
And, also I think there is a severe equal protection problem, because if this whole matter depends on where that can might be setting or whether you might be living in a rural area, residential area, I think that -- I think it’s a refinement that we don’t want to go into.
Many people live in huge apartment houses where there is a commingling in the -- in a huge trashcan.
There you don’t have the problem, because it’s initially commingled, but if you don’t have the situation where you’re living under circumstances like that or you’re living in a private home, of course, then you have to comply with the regulations of the County of Los Angeles and the City of Los Angeles in how you get rid of these materials.
Justice Potter Stewart: You know the whole Fourth Amendment, its applicability, depends inevitably upon sometimes very subtle nuisances and differentiation of facts, doesn’t it?
Mr. Roger Hanson: Certainly it does, I recognize this, I recognize this.
Now, no one has said in argument yet about the general attack on Matt versus Ohio, but in the couple of minutes I have left, assuming my opponent is going to allude to it in his closing arguments.
I think that somebody of my particular educational status is not going to, in the few minutes, in any way, attempt to overcome the scholars of the last 50 years who have considered, debated, discussed, published law review article by the thousands on the exclusionary rule, I think that the State of California is now in a position where frankly there’s been an addition of four new members to this Court and the -- I think they feel that they can take a new shot of the exclusionary rule.
And I would suggest to this Court that this Court should not likely consider in a solemnest rule.
There is really no other practical way, no other practical way.
Some people may say, pursue of 42 U.S.C. 1983 Civil right suit, but I would suggest to this Court that if somebody is caught with a bunch of cocaine and it is shown to be an illegal seizure, but because you can’t exclude it, the man is convicted, he does maybe ten years, he makes $50,000 a year of selling cocaine, he brings a civil rights suit to recover $50,000 times ten years, or $500,000.
What jury in the United States would give him ten cents, a man who is dealing in cocaine, brings a civil right suit to recover money, because he had been illegally searched and seized, can anybody in their wildest imagination should suggest that man would get any money?
I don’t think so.
There really is practically no relief under 1983 of the Civil Rights Act.
Some people may suggest, well, we should discipline the police.
I don’t think this is practical, I think this has been hash and rehashed for years.
It is not a practical way of handling it.
The only way it can be done is by the -- this exclusionary rule and I think that the scholars of the last fifty years, emanating from Weeks versus United States down through Matt versus Ohio have so considered, and there just is really no other way of doing it.
If the State of California is really sincere in this, I would suggest that this Court may give some credence to a parallel type of relief, along with this exclusionary rule, to see how it works.
I think Mr. Chief Justice Burger in the Bivens versus Six Agents of the Federal Bureau of Narcotics expressed the reluctance to throw away the exclusionary rule in Illinios and alternate could be selected.
And so, I think that if there’s any credence to be given to an alternate let it go in a parallel manner to the exclusionary rule, and let’s all investigate and see what happens.
And I would suggest that the exclusionary rule would probably still be in effect, because the alternates are merely shams that they really will not work too well.
California talks about restricting it to substantial violations, and I would suggest that we’re getting into replete additional things, which are going to be more complicated, because then you are going to have got to decide where there is a reasonable or unreasonable search where it has already been held to be somewhat unreasonable.
I think you are going to have nuisances on -- nuisances on this particular thing to the point where anybody that would want it had to happen would give up in despair on it.
Even in the amicus curia briefs, the reasons for doing away with it, the Americans for effective law enforcement presents statistics that show that the police are doing so well with an 84%, 6 out of 7 cases, the attack on the search and seizure has been upheld as being correct.
On the other hand, California in this brief says, “Well, the thing is so complicated our police can’t understand it.”
I think that and that alone is reason for disinterested, neutral magistrate, who has had training in law to set and decide if it’s legal or illegal.
Illinois says and I’d hesitate to admit it that their police are lying so badly.
Every time they get caught and they’re challenged by a judge, where they would be prone to lying in order to get the evidence in.
Well, I would suggest the State of Illinois is a different fact, that’s our admission that they ought to try and curtail their policemen lying and go on the same rule that everybody else goes, a judge is suppose to decide this.
Chief Justice Warren E. Burger: Mr. Hanson, I think your time is up and you were appointed by this Court, you accepted the appointment and on behalf of the Court, we express our appreciation to you.
Mr. Roger Hanson: Thank you Mr. Chief Justice, it’s a pleasure to do it.
Chief Justice Warren E. Burger: Case is submitted.