UNITED STATES v. MATLOCK

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Argument of Donald Eisenberg

Chief Justice Warren E. Burger: We will resume arguments in United States against Matlock.

Mr. Eisenberg.

Mr. Donald Eisenberg: Mr. Chief Justice, may it please the Court.

I hardly got a chance to say anything yesterday except good afternoon.

I would briefly like to reiterate the facts as set forth by the Government because I think they're important in this case especially in light of Robinson which Mr. Justice Rehnquist just gave his opinion.

The important things in this case are that Mr. Matlock was arrested in the yard outside of the house.

He was placed in the police car.

The officers all admitted that they were in no danger.

The house was under siege.

It was surrounded.

They had no knowledge that any fruits of any crime were in the house.

No questions were asked as the defendant’s relationship as an owner, as a tenant, as a husband, or anything else in relation to the Marshall residence.

The officers, even though they had Mr. Matlock completely under control in the car, never asked his permission to search the premises.

When they did go to the door, of course they did not have that very important thing and that is a search warrant.

They never asked Gail Graff who she was.

The officer’s testimony is clear that when they came in the door she was standing with her two- or three-year-old baby.

They never asked who she was, whether she was a daughter, a wife, or anything else.

They asked whether or not they could search the house.

She consented to the search of the house.

I think it is important that we remember in this case that it's Mr. Matlock’s constitutional rights that are at stake here and not Gail Graff’s.

The Government argues that there was a joint occupancy of that bedroom.

Now --

Justice William J. Brennan: Mr. Eisenberg, where is the --

Mr. Donald Eisenberg: Yes, sir?

Justice William J. Brennan: Where is Pardeeville, Wisconsin?

Mr. Donald Eisenberg: Pardeeville is about 15-20 miles north of Madison.

Justice William J. Brennan: Small town?

Mr. Donald Eisenberg: Very small town.

Justice William J. Brennan: In the same county as Madison?

Mr. Donald Eisenberg: No, Columbia County.

Madison is Dane County.

Pardeeville is famous, Your Honor, for the manufacture of athletic score boards.

They're made in Pardeeville, Wisconsin.

That's their claim to fame, that and fishing, I think.

It's in Columbia County and this search was conducted by the Columbia County Sheriff’s Department along with, at the second and third search, the FBI.

And even in the second and third searches, which aren't material to this case, the FBI did not bother to get a search warrant either.

Justice William J. Brennan: I take it there's nothing in the record about the local police knowing Gail or Mr. Matlock or anything.

Mr. Donald Eisenberg: One of the deputies, I believe his name was Cross, later testified and he wasn't there during the first search.

He testified that he knew that Gail Graff was a daughter of Mr. and Mrs. Marshall.

And he testified that even though he didn't know the relationship of Bill Matlock to Gail Graff, that at one time when he was visiting the house he saw Bill Matlock come down from the upstairs.

But that testimony isn't important, I don't believe, because he wasn't one of the officers who were involved in the first search wherein they found the money.

Now, getting back to this joint occupancy, the government has used that term quite often and I don't believe it is in the record.

Gail Graff was asked whether or not they could search the bedroom and she said, “Yes, you may, you can search the whole house.”

And, I believe the testimony is that, from time to time, she slept in that bedroom.

But as far as joint occupancy goes, there is nothing in the record to show that they jointly occupied the bedroom as husband and wife or on a regular basis.

As a matter of fact, there is evidence in the record that Gail Graff did have a bedroom of her own on the first floor of that residence.

Chief Justice Warren E. Burger: Wasn't there some testimony that she had the top two drawers in the dresser and he had the bottom two?

Mr. Donald Eisenberg: Yes, sir.

Chief Justice Warren E. Burger: You do not think that permits any inference of joint occupancy?

Mr. Donald Eisenberg: No, I don't because that, Your Honor, is something that came out again after the first search and after the money was found in the closet.

Now had they inquired or had they told, and that is an issue that is not in this case also, had they told Gail Graff “You don't have to consent.”

Or had they asked her, “Are you the wife?

Do you have joint occupancy of the bedroom?”

Fine.

But they never asked.

And finally, it was subsequent to, I believe, all of the searches that she or -- I guess it was in the second or third search which aren't material where she said, “Yes, the upper two drawers are mine and the bottom two drawers are Bill’s.”

Now in that regard, Your Honor, I think the inference could just as well be that there wasn't room in the house to store all clothes and people were using everybody’s closets.

I think that the testimony was very clear in this case that at no time did anybody asked, for instance, whose dresses were hanging up in the closet.

They could've been Mrs. Marshall’s.

That is not in the record that they were Gail Graff’s.

The District Court Judge Doyle found that the Government had not proved by the greater weight of the credible evidence that there was joint occupancy of that bedroom.

They of course, also found that there was no evidence except this “reliable hearsay” that there was any evidence that Gail Graff was married to Bill Matlock or that she had authority to consent.

What the Government would ask this Court to do at this time is to say that apparent authority is sufficient and you don't need actual authority.

Now, another thing that I believe is important in the case is the Government has argued before this Court yesterday that Gail Graff said that, “It's my room.”

Now, she never said that and that is not in the record.

Chief Justice Warren E. Burger: He didn't undertake to prove, for example, that he rented that room and paid $75.00 a month and that it was his room exclusively?

Mr. Donald Eisenberg: We did.

We showed that at the suppression hearing, Your Honor.

Chief Justice Warren E. Burger: Exclusively?

It --

Mr. Donald Eisenberg: The question of exclusivity never came up.

I believe, on my examination of Mr. Matlock or of Mrs. Marshall, we asked the questions of, “How was he there?

What was he doing?” and she said “He is a paying tenant.

He'd paid a $100.00 a month and he was current.”

And the judge, Judge Doyle, made a finding that he was current in his rent.

No question was ever asked and I don't think it was inadvertent or on purpose, Your Honor.

No question was ever asked whether or not Gail Graff also was a paying guest.

But the police officers never asked either.

It was myself who asked on direct examination of Mrs. Marshall what the situation was as far as rent goes.

The officers never inquired at any time.

Now I agree with the law, of course I agree with it, that two persons who have equal rights may give legal consent and that's very clear.

But here, Your Honor, and that was my next point, that there was no inquiry as to whether or not Gail Graff was standing in the position of the defendant’s wife, whether of nor she also was paying for that apart -- for that bedroom, or whether or not she was sleeping any place else.

Mr. Justice Marshall yesterday, raised the question of the joint use of the diaper bag.

And there again, that's a question that was never raised yesterday.

There is no doubt about it that a diaper bag in this situation, the very strong inference is that it was used for diapers for Gail Graff’s two or three-year-old son.

That question was never going into the suppression hearing.

The main question in this case and the only real question is whether or not a third party who consents is in fact, or “in appearance, a joint possessor.”

The Seventh Circuit placed upon the police the burden of determining whether a person encountered at the door has the authority to consent.

Now we cited numerous cases, and the Government has also.

They rely, for instance, on the Gorg case.

Now, the differentiation in that case is that, in Gorg, the police acted in good faith.

They had consent and they had the request of the homeowner to search the house.

The only question in that case was the right of the person who occupied the room, the son in that case.

If you remember, marijuana plants were found in the room after the son was arrested.

The question of the right to refuse consent was not present.

The Court or the Government also cites Schneckloth.

The only question in Schneckloth was the voluntariness of the consent to search.

They cite Hopper and in that case, the Court never reached the question of actual authority because it ruled that the consenter did not even have apparent authority to consent.

Now, yesterday, the question was asked, Mr. Wallace of whether or not he relied upon Hill and I would say today, “Yes, he does rely upon Hill” and he also, I would assume, Mr. Justice Rehnquist, that he now would rely upon Robinson.

Robinson is analogist to Hill in one thing and it's differentiated from Matlock in that, in Hill, the search was incidental to an arrest.

And I think those are the magic words that take Matlock out of the Hill decision and out of the Robinson decision.

This search was not in any manner, shape, or form incidental to any arrest of William Matlock.

The Government would have this Court adapt a theory that ignorance is bliss.

We cited in our brief at pages 12 and 13 a very short argument in that regard and I said, "To accept the Government’s apparent authority position would be to assume that ignorance is bliss.

And when it comes to warrantless police searches, the less the officer knows and the less he takes the time to find out and the less he actually finds out, the better off his search becomes.

The Government says that a warrantless search is reasonable if consented to by one who may appear to have authority to consent even if, in fact, he does not have that authority.

Now, Mr. Justice -- Chief Justice Burger came up with the thing that I wish I had thought of and that's mainly the meter reader being in the house.

I think I can do you probably one better, Your Honor, in all due respect.

Let's take the weekend guest.

Let's take the mother-in-law who comes to visit and everybody is out of the house except mother-in-law, and up in the bedroom of the 16-year-old son, he's got marijuana and heroin and LSD and all the other good things.

And the police have a very reliable informant who says there are these things in the boy’s bedroom and they walked in and ring the door bell and mother-in-law opens the door and they said, “I am the police.

We want to search the house especially that bedroom,” and she says “okay.”

Now, I don't think that that situation is any different than the Matlock situation here.

And I would submit that in that case, a search without a search warrant should not be upheld by this Court or any other court.

Chief Justice Warren E. Burger: Well, then on the suppression hearing, however, the testimony would be developed, I assume, that this woman was like the meter reader, not really an occupant of that house, and neither actual nor apparent authority to consent to any entry.

Mr. Donald Eisenberg: Well, Your Honor, there, the apparent authority is there.

The police officer walks in.

He sees a nice elderly woman or maybe she is not so elderly, maybe she is in her 50's as some mother-in-laws still are, and just assume that she may be the mother.

They just assumed that she has that apparent authority.

That's what happened in this case except, in Matlock, I don't even think that the officers assumed that Gail Matlock had apparent authority.

That question never entered their mind.

They had the man outside under arrest and they were going to search that house and that was it.

I don't think it makes any difference, Your Honor.

The apparent authority rule, whether it be the meter reader or the mother-in-law or even a burglar, let’s take a sophisticated burglar in the house who has come upon by the doorbell ringing and he’s dressed well and he goes to the door and says, “Well, I’m going to fool who’s ever knocking at the door,” and he opens the door he’s an impostor, completely.

And they say, “May we search the house,” and he says, “Okay.”

Now, that’s the theory.

That’s the law that the Government wants this Court to adapt.

And I just don’t think it’s right, Your Honor.

Chief Justice Warren E. Burger: Well, but then on your suppression hearing you would demonstrate his infirmities of his situation, wouldn’t you?

Mr. Donald Eisenberg: That he was an impostor.

In this case, in the Matlock case, the burden of course -- I wouldn’t have to, Your Honor.

Let me disagree with you a little bit there.

I wouldn’t have to because there’s no doubt, and the Government admits, that the burden is upon the Government.

Chief Justice Warren E. Burger: No question about that.

Mr. Donald Eisenberg: Okay.

So it would be the Government and if they did not, as the Court -- as both courts found in this case that the Government did not meet their burden by the greater weight of the credible evidence, then they’re out of court.

The next question here after we -- if we get by that fact that this search was done without authority, is whether or not the lower courts use the right rule as far as burden of proof.

And in that regard, I don’t really think that the Government argues with either court.

The -- they have cited in their brief and we cite in ours, Black’s Law Dictionary which says, in effect, that greater weight of the credible evidence, preponderance of the evidence are really the same thing.

The Government cited, which I am thankful for, the Wisconsin jury instructions which Judge Doyle followed.

And in the legislative comment or in the comment attached to the Wisconsin jury instructions, the court noted or the drafters of those instructions noted, “greater weight is exact synonym for fair preponderance.”

So, under either theory, I don’t think it makes any difference, I think they’re the same.

I agree that the Court of Appeals made a typographical or an error when they said “great weight” rather than “greater weight.”

But I am assuming, Your Honors, and I think it’s apparent from the record in this case that what they really meant was “greater weight” and not “great weight.”

It does show that they read the Government’s brief very thoroughly because that’s where the mistake was first apparent in their own brief.

Justice Byron R. White: Could you straighten me out?

Did the two lower courts here go on a basis that there was no actual authority for the search?

Mr. Donald Eisenberg: That’s correct, Your Honor.

Justice Byron R. White: And both of them found there was apparent authority?

Mr. Donald Eisenberg: They found it reasonably appear to the officers that they have apparent authority.

Justice Byron R. White: Well, let’s assume the rule was that it was a reasonable search if there was apparent authority.

Now, both -- if that were the rule, both courts would’ve sustained the search below.

Mr. Donald Eisenberg: That is correct, Mr. Justice White.

Justice Byron R. White: And the -- so you asked us to -- in effect to disagree with both courts with respect to apparent authority in the first place.

Mr. Donald Eisenberg: No, I don’t ask that.

Justice Byron R. White: You don’t?

I thought you said that there was no apparent authority in this case.

Mr. Donald Eisenberg: Oh, alright.

Okay, alright.

Thank you.

Justice Byron R. White: Do you ask us then to -- do you say, “Alright, there was apparent authority” or not?

Both courts found that to be true.

Mr. Donald Eisenberg: I would not argue with their finding of apparent authority.

Justice Byron R. White: So there was apparent authority and you rest your case then on that there must be actual authority, that they should do.

Mr. Donald Eisenberg: Yes, Mr. Justice White.

Justice Byron R. White: Apparent authority.

That’s what the case turns up.

Mr. Donald Eisenberg: Yes, sir.

Justice Byron R. White: Okay.

Mr. Donald Eisenberg: The last argument that the Government makes is whether or not the “reliable hearsay” is admissible or not admissible.

And in that regard, my only argument isn't that hearsay testimony or what they call a reliable hearsay testimony is not substant in evident -- substantive evidence.

They asked that this court adapt Rule 104 (a) of the proposed new rules of evidence.

And I submit of course, that they should not be applied.

They are not the law.

Chief Justice Warren E. Burger: They’re being applied in many districts, aren't they?

Mr. Donald Eisenberg: They are, Your Honor, much to the Marshalls and that they --

Chief Justice Warren E. Burger: How about Wisconsin?

Are the district judges generally applying them now?

Mr. Donald Eisenberg: No, Your Honor.

I was in the Federal Court in the Northern District of Indiana where the court is applying them.

Wisconsin, to my knowledge has not yet.

I’ve recently appeared in Minnesota and before Judge Lord and I’m not so sure if he is yet or not.

The other thing I would like to say, Your Honors, is the -- the Government states that the leading scholars in the law of evidence say that this hearsay should be admissible.

And I would in all differ -- deference to Mr. Wigmore and to Mr. McCormick, say that you are the leading scholars in this area and I would bow to your authority in this regard.

And I think the lower courts, both of them, both Judge Doyle and the Seventh Circuit were correct in holding that this evidence was not admissible to prove the truth of the facts therein.

That, of course --

Justice Byron R. White: Do you think it was admissible to prove apparent authority?

Mr. Donald Eisenberg: No, I don’t, Your Honor.

Well, it did -- it isn’t offered then as to -- as for the truth of any facts and it’s offered to prove that what -- that some words were said.

Just the fact of some statements having been made which, apparently, was the basis for the apparent authority findings of the courts below.

Mr. Donald Eisenberg: Well, Your Honor, see, here’s the problem that we have and here’s the problem I have with the --

Justice Byron R. White: Well, isn’t that true so far?

That's a -- if you’re going on apparent authority, with respect to apparent authority, you might get a different answer on admissibility than with respect to actual hearing.

Mr. Donald Eisenberg: If you’re going on apparent authority except for the fact that when the search was made the officers didn’t even know that.

See, that’s the -- the funny thing in this case.

Justice Byron R. White: Well, that’s maybe a different -- that that's a different.

Mr. Donald Eisenberg: Right.

Justice Byron R. White: That isn’t a hearsay objective.

Mr. Donald Eisenberg: And that’s, well, true.

And that’s why the last question you asked me about here (Voice Overlap).

Justice Byron R. White: That’s just an irrelevancy that -- but it’s not a hearsay.

Mr. Donald Eisenberg: I agree, alright.

But now, if we come to the apparent authority question, when the police officers made the search wherein they found the money in the closet there was not even any apparent authority at that time.

And, there, I would disagree with the lower courts.

The apparent authority came in later, after the search was done.

Chief Justice Warren E. Burger: You have --

Unknown Speaker: It’s like you almost have to disagree with the lower courts.

Mr. Donald Eisenberg: I do, Your Honor.

Unknown Speaker: With apparent authority.

Mr. Donald Eisenberg: I agree with them after they found the apparent authority as an afterthought, after the fact.

But when the search was made, Your Honor, there was no apparent authority.

There was nothing.

Perhaps irrelevant, you're (Inaudible) against two courts, right?

Chief Justice Warren E. Burger: And you haven’t cause petition on those issues are you?

Mr. Donald Eisenberg: No, we haven’t, Your Honor.

I think the main issue here is the actual authority.

Chief Justice Warren E. Burger: But the testis the -- the legal test is what this case is going to turn on.

Mr. Donald Eisenberg: Correct, Your Honor, whether or not actual authority is necessary as well as apparent authority.

I think that’s the main thing.

Thank you very much.

Chief Justice Warren E. Burger: Thank you.

Mr. Wallace, do you have anything further?

Argument of Wallace

Mr. Wallace: I just want to reinforce what has already been said that the courts have found apparent authority in this case.

On page 12 (a) of the appendix to the petition of the District Court’s findings on which this was based and those findings right in the middle of the page include very specifically that she told the officers that the east bedroom was occupied by the defendant and by her.

Unknown Speaker: Where are you?

Mr. Wallace: I’m on page 12 (a) of the appendix to the petition for certiorari, Your Honor, where we have the District Court’s opinion reprinted.

Right in the middle of the page, the findings on which the District Court based its holding that there was apparent authority includes the statement right in the middle of page 12 (a).

She told the officers that the east bedroom was occupied by the defendant and by her.”

She then consented to a search of the east bedroom.

She told the officers that she used the top two drawers of the dresser in the east bedroom and the defendant used the bottom two drawers.

This was upheld.

These findings were upheld by the Court of Appeals on page 3 (a) of the same appendix at the end of the paragraph that ends at the top of the page 3 (a), that she then told the officers that she and defendant both occupied the east bedroom and that the woman’s clothing therein contained were hers.

And, that she told the officers that she used the two upper drawers of the dresser in the room and the defendant used the two lower drawers.

Without burdening the court to read, all the excerpts in the record which support that I can cite in the printed appendix to page 13, page 15, page 16, and page 18 which is testimony by each of the three officers that conducted the search, all supporting that she said that this was her bedroom, that she slept in the same bed with the defendant there.

Now, there’s just one other factor in response to the question Mr. Justice Blackmun has been asking about whether any of the officers who conducted the search knew who she was.

The only indication in the record on that does not relate to her specifically but to Mr. Matlock, the respondent himself.

And, that appears at a portion of the transcript that was not reprinted in the appendix.

On page 78 of the transcript in the course of the interrogation of Officer Cross who was one of the officers who conducted this search, they asked him, “Did you know whether or not he lived in that house?”

And he said, “Yes, sir.”

“How did you know that?”

“Well, I had seen him there.

My father knew the Marshall family and through that, I knew he was staying there.”

That is all that appears in the record on that subject.

Unless there are further questions, that’s all.

Chief Justice Warren E. Burger: Thank you, Mr. Wallace.

Mr. Eisenberg, you appeared here at our request and by our appointment.

Rebuttal of Donald Eisenberg

Mr. Donald Eisenberg: Yes, Your Honor.

Chief Justice Warren E. Burger: On behalf of the court, we express our appreciation for your help not only to your client but to the court.

Mr. Donald Eisenberg: Thank you, Your Honor, I appreciate that.