OREGON v. HASS

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Argument of Thomas H. Denney

Chief Justice Warren E. Burger: We'll arguments next in 73-1452, Oregon against Hass.

Mr. Denney, you may proceed whenever you're ready.

Mr. Thomas H. Denney: Mr. Chief Justice and may it please the Court.

This case is here on the State of Oregon’s petition for certiorari to review a decision of the Oregon Supreme Court holding that statements made by a criminal defendant who has been advised of his constitutional rights in accordance with the requirements of Miranda versus Arizona and who has expressed the desire to talk to an attorney or has at least inquired about the inavailability of counsel may not be used to impeach his trial testimony.

From the states point of view, the holding of the Oregon Supreme Court in this case denies to Oregon prosecutors -- the right to use statements, evidence which is constitutionally admissible under this Court's holding in Harris versus New York and we therefore seek reversal of the Oregon Supreme Court's decision.

Perhaps from my broader point of view this case presents the Court with an opportunity to delineate more fully the extent of the holding in Harris and I should hope if the Court chooses to do so that some of the tangential material that it is put in the brief for the petitioner in footnotes maybe of some assistance.

Before I turn to the merits of the case, there are two objections to the states being here at all that are raised in the brief for respondent that I would like to deal with very briefly.

First of this is the contention that the State of Oregon has no standing to be here because we are not aggrieved by the judgment of the Oregon Supreme Court.

Well, I think it’s fairly clear that a holding of the Oregon Supreme Court that the State of Oregon may not use evidence that is constitutionally permissible.

Thus, make us a party aggrieved and I don't think that the right of the state to seek certiorari in such cases is open to very serious question.

The most recent case in which the -- that I could find and which the state petition for certiorari was granted in a similar case was California versus Green in 1970 but I'm sure there have been many petitions sought in the -- sought since and certainly perhaps if you grant it and certainly I don’t think this is an issue.

Of a little more substance perhaps is the argument raised in question.

One in the respondent's brief to the effect that the state cannot prevail in this case because the states are free to impose higher or different standards of constitutional guarantees of liberty let me say.

Then, those enunciated in this Court's interpretation of the Constitution.

Well, we don’t quite agree with the argument that is advanced as we understand the law of course, this Court is the final interpreter of any question arising under the federal constitution and the states are not free to predicate any holding contrary on grounds of the federal constitution.

We think as I've indicated in the brief for petitioner among other places I think Cooper versus California clearly implies what I have just said.

Chief Justice Warren E. Burger: Is that the case in which we remanded to the -- one of the cases we remanded to the Supreme Court of California to ask them to state clearly whether they acted on the federal or the state constitution or was that another case?

Mr. Thomas H. Denney: I believe that was what was done in that case Mr. Chief Justice.

I'm not positive, I think Ker versus California was another such case and this is one that is cited in the respondent’s brief.

Justice William H. Rehnquist: You don’t challenge the right of the Supreme Court of Oregon interpreting its own search and seizure constitutional provisions to come to a different conclusion in this Court?

Mr. Thomas H. Denney: Oh! Certainly not Mr. Justice Rehnquist but my point incidentally this is not the search and seizure.

This is a confession question of course.

But our point is that this case is just clearly not beside it on state constitutional grounds and I think I've indicated that in the reply brief to expand a little more fully on it.

The state constitution was not invoked in connection with this assignment of error by either side below.

The state constitution is not even mentioned in the opinion of the Oregon Supreme Court.

The Court's opinion instead distinguishes this case from Harris.

In addition, the case is on which the Oregon Supreme Court relied the Oregon cases of State versus Brewton and State versus Neely are themselves not predicated on the Oregon Constitution.

The Constitution isn’t -- the state constitution isn’t even mentioned in State versus Brewton.

It is mentioned in State versus Neely but only to say that we are not predicating our holding on the Oregon State Constitution.

Now, it was I cannot say that the state constitution did not come up at all in this case because during the oral argument in this case before the Supreme Court of Oregon the Chief Justice of the Oregon Supreme Court asked if the state were not -- if the Supreme Court were not free to predicate its holding on the Oregon Constitution and reached a different result from whatever this Court might reach.

We agreed that they have that power but the discussion ended there.

So, we submit that this case just simply is not a case predicated on state constitutional grounds and I don't think that there is anything in the record of this case which would support what might otherwise argue for a remand of this case for clarification.

Justice Byron R. White: I gather Oregon does have a counterpart of the self-incrimination clause?

Mr. Thomas H. Denney: Yes.

I believe its set forth in the respondent's brief as Article 1, Section 12 -- no person shall be put in jeopardy twice for the same offense nor be compelled in any criminal prosecution to testify against himself.

Justice Byron R. White: So, had they rested this decision on that provision you would not be here?

Mr. Thomas H. Denney: Absolutely not but my point is they didn't and that is why we contend we have every right to be here.

Now, turning to the facts of this case; the facts are simple relatively undisputed and it would be a trivial case if it were not for the fact that the Harris issue is clearly presented here.

Basically, it involves the theft of a bicycle out of the garage of a resident in Klamath Falls, Oregon.

The owner of the bicycle and his father saw the thief who was we think it clear now defendant's accomplice drive the bicycle or ride the bicycle out of the driveway.

They gave a chase.

They ultimately intercepted the defendant’s Volkswagen bus.

The defendant was driving at the bicycle was in the back.

The father and son recovered the bicycle and called the police.

In response to that call, a state police officer traced the Volkswagen bus and went to the defendant’s home.

He advised him of his Miranda Rights and his advice incidentally included a specific warning that the defendant could stop talking at any time.

In addition to the usual fourfold right to remain silent etcetera has admitted that he had taken two bicycles that day and he wasn’t sure which one the officer was talking about.

Upon further conversation, he said that he had given one bicycle back which I gather his interpretation of the incident with the father and son demanding it back and that he had concealed the other and he agreed to show the officer where he had concealed the second bicycle.

On the way to the spot where the second bicycle was concealed however has with already admitted his guilt in the offense to this extent indicated and the exact wording he used is a little bit in dispute the two versions are set forth in the petitioner’s brief indicated that he would like to consult with an attorney.

The officer said that he couldn't make counsel available to him right then.

However, he would make counsel available or at least a phone would be provided to him as soon as they got to the state police headquarters.

According to the officer in response to a specific question from Hass he then said that he was not going to force Hass to continue with the investigation but he would like to clear the matter off.

Now, Hass' version of the events as that the officer said, “I can't let you see a lawyer but I'll let you when we get down to the station.

And even Hass' version of the events does not claim that there was any greater degree of coercion or pressure put upon him than that.

In any event, they went to the spot where the second bicycle was recovered and it turned out to have been taken from another residence in the same general area at approximately the same time.

There was no evidence in the record indicating specifically that the bicycle had been taken the same day except for the defendant's later testimony to that effect.

There was an in camera hearing to determine whether or not ought the police officer's testimony would be admissible with respect to everything that the defendant has it said and done at the time of this interrogation or this questioning.

After hearing, the testimony the trial court ruled that everything has did and said and in fact defense counsel conceded this that everything has did and said up to the time he inquired about the availability of counsel would be clearly admissible.

But that this inquiry brought Miranda into play and that nothing else would be admissible in the states case in chief and nothing else was admitted in states case in chief.

Has then took to stand and testified that he and two other fellows have been driving around the general area where the bicycles were taken that the other two person had taken the bicycles without his prior knowledge and that he didn't know exactly where they came from.

This was all they did on the direct examination.

In short, he admits his part in the theft of the bicycles in the sense of receiving and concealing the stolen property.

He conceded that he figured they were stolen from the way his two friends brought them to him but he claimed that he had no prior knowledge of the crime.

And that he therefore wasn’t guilty of the burglary with which he was charged.

And this is particularly significant in Oregon or it was particularly significant still is actually because Oregon some months before the trial in this case have adopted a same transaction test of determining when jeopardy attaches and it is very probable under the teachings of that particular case which was State versus Brown and again cited in the brief that had the jury believe passes testimony and acquitted him of the burglary charge double jeopardy as interpreted by the Supreme Court of Oregon construing the Oregon Constitution would have barred a second trial for the theft at which he then admitted his guilt.

Well, in rebuttal to Hass' testimony after the case of Harris versus New York was called of the trial court's attention.

The state recalled the state police officer who testified that after he had obtained the admissions from Hass that he had previously testified to, Hass had taken him around to the residential area where the bicycles were taken and that Hass had pointed out the precise locations of the two houses from which those bicycles had been taken.

The Court then instructed the jury that this testimony was to be received only for impeachment purposes and then on surrebuttal has went ahead to deny that he had pointed out the houses in question.

There's very little I can say about this case because basically when we get to the legal issues presented because it seems to me that it comes so clearly within the parameters of Harris that it's almost pointless to draw the distinctions that Oregon Supreme Court did.

In the first place here as before, we have as in Harris we have the defendant affirmatively stating on the direct examination testimony that he know -- when he knows that the state is not going to be able to present contrary testimony at least in this case in chief and wasn't able to do it.

They knew that this testimony existed and they knew that they have been ruled and admissible.

It seems that this presents in this kind of context I'm not necessarily saying that it happened here that we have a marvelous opportunity for criminal defendants to tailor their testimony in accordance to account for anything they may have said prior to the time they may have asked for counsel under the circumstances of this case.

There is no contention as I have mentioned before that anything Hass' statements or what he did was in fact coerced or involuntary or that any pressure was put on him.

He have been advised of this Miranda Rights, he have been told he could stop answering questions at any time, he asked for a lawyer -- the lawyer he was told that counsel would be made available to him when he got the police station.

And that's it he doesn't claim that there was any coercion at all put upon him to continue beyond the mere request of the officer.

This we submit is enough to satisfy the primer and the standards of voluntariness and trustworthiness which would render the statements he made and the things he did after he inquired about the availability of counsel admissible at least for impeachment purposes.

As I've noted in a footnote it seems to be an open question yet at least this Court hasn't directly spoken on the issue of whether advise of rights which tells an accuse that counsel will be made available to him at a later time such as when and if you go to court was one example makes the statements inadmissible in the case in chief.

We're not contesting this because the argument wasn't raised below and I don't feel that I'm entitled to make the contention here that the statements has that were admissible in the case in chief nor do I need to.

But it certainly seems to me that this kind of statement should be made and should be admissible for impeachment purposes under the facts of this case particularly where as again here the jury was carefully instructed that the statements were limited to impeachment and were not to be considered in determining the guilt or innocence of Hass per se.

Justice William J. Brennan: Was that prior opinion in Brewton that was 1967?

Mr. Thomas H. Denney: Yes, Your Honor.

Justice William J. Brennan: Is that federally grounded or (Voice Overlap)?

Mr. Thomas H. Denney: Yes it is.

It is an attempt to predict --

Justice William J. Brennan: The reason that, may I just ask?

Mr. Thomas H. Denney: Certainly.

Justice William J. Brennan: The reason I asked is that this apparently was a situation that arose before Miranda was decided.

Mr. Thomas H. Denney: The trial had, yes.

Justice William J. Brennan: Well, what it says at page 29 whether or not Miranda's finding upon argument in courts with reference to trials concluded before the Miranda decision was published.

Mr. Thomas H. Denney: Yes.

Justice William J. Brennan: Whether or not in either event --

Mr. Thomas H. Denney: Yes.

Justice William J. Brennan: -- they applied what they did in Brewton as to impeachment?

Mr. Thomas H. Denney: If I may expand on that a little Mr. Justice Brennan.

The Oregon Supreme Court prior to Johnson versus New Jersey at this Court's decision had --

Justice William J. Brennan: Well, that was the same day as rendered a week later.

Justice Potter Stewart: One week later.

Justice William J. Brennan: That’s right.

Mr. Thomas H. Denney: Well, perhaps they weren't aware of it because the Oregon courts had held that it's our holding that Oregon holding in State versus Nelly which was kind of anticipation of Miranda decided post Escobedo and pre-Miranda was retroactive to a greater degree than this Court subsequently held Miranda to be retroactive.

And I think this language is getting at that problem because --

Justice William J. Brennan: Well, this was decided in 1967 but what date in 1967?

Mr. Thomas H. Denney: Exact date --

Justice William J. Brennan: When relation to the date we decided to Johnson.

Mr. Thomas H. Denney: I'm afraid I don't know but Johnson was in 1966 (Voice Overlap) --

Justice Potter Stewart: 1966.

June of 1966 Miranda and Johnson were?

Mr. Thomas H. Denney: Both, but the Oregon rule was as I recall it that case, that Nelly and subsequently until we had a case somewhat later even Miranda would apply retroactively to cases which were not terminated, concluded and that included a 90-day period after a final judgment of the Oregon Supreme Court within which the defendant or the other side could petition for certiorari.

Justice William J. Brennan: Well, the reason I asked is in the present case it would appear at page 15 that your court cited this case?

Mr. Thomas H. Denney: Yes.

Justice William J. Brennan: You can read it I suggest this way, jointly on Brewton and Harris?

Mr. Thomas H. Denney: Yes.

Justice William J. Brennan: And that Brewton was contrary to Harris and it followed Brewton, is that what they do?

Mr. Thomas H. Denney: Yes, well, they distinguish also between --

Justice William J. Brennan: Well, they did later but if it can be read as based on the state ground even if it's also based on a federal ground and even though it's erroneous in its interpretation of federal ground.

I guess we have no jurisdiction to review it if it’s based partly or jointly on the state and federal ground, do we?

Mr. Thomas H. Denney: That would be true but my position is that this --

Justice William J. Brennan: Yes, but don't we have to decide then whether the original Brewton was decided on the state or federal ground?

Mr. Thomas H. Denney: Yes I suppose that’s part of the decision you will have to undertake.

I think when you read the Brewton opinion as no doubt you have but when you look at one closely --

Justice William J. Brennan: (Voice Overlap) is that language I've just read to you that I wasn't clear of this precisely what it meant whether or not Miranda?

Mr. Thomas H. Denney: Yes, as I say I think it turns into what the Oregon Supreme Court had done with regard to its retroactivity rules about the application of Miranda and Nelly.

I think the opinion as a whole in Brewton clearly is an attempt to predict what the Supreme Court of the United States will do with the question of impeachment.

Justice William J. Brennan: Well, certainly all that repercussion of 29 and 30 is in relation to the developing law under the Fourteenth Amendment as this Court had developed.

Mr. Thomas H. Denney: Yes, but again they are again also applying the Nelly case in the Brewton case and the Nelly case is not predicated.

Justice William J. Brennan: But what was the middle ground in Tate.

I haven't read Tate.

Brewton gave us a good deal of attention in Tate v. United States or don't you waste the time?

Mr. Thomas H. Denney: I don't recall it all offhand.

The distinction that the Oregon Supreme Court drew between this case and Harris is one we submit is not one that calls for different result.

In either event whether the police are to be faulted for not advising a man of his constitutional rights properly in the first place, or whether they continue to question him to some degree at least with his tentative request for counsel as we are confronted with here.

Justice William J. Brennan: Do you mind if I interrupt you once again?

Mr. Thomas H. Denney: Not at all.

Justice William J. Brennan: In Brewton, Justice Perry dissented and next to the last paragraph at page 33, I know of no reason why this Court should go beyond the requirements of the Supreme Court of the United States and that's the rule and so forth.

Mr. Thomas H. Denney: Yes.

Justice William J. Brennan: Doesn't that suggest that he, at least he led majority opinion in Brewton is going beyond any decision of this Court?

Mr. Thomas H. Denney: Well, it very probably does and but I submit that thinking that he is going beyond the requirements of this Court's previous decisions does not necessarily indicate at all that the case is predicated on state grounds rather than federal.

I return in my basic position that I think the Brewton case is more of an attempt to predict what this Court would do with the federal question than an attempt to predicate something separately on state grounds.

Chief Justice Warren E. Burger: Well, he relied on the Walter case as much as the Court did in Harris?

Mr. Thomas H. Denney: Yes he did and I found it rather strange I was not very frequently before the Supreme Court of Oregon at the time that the majority opinion doesn't event talk about Walter.

Justice Potter Stewart: Is that -- this good one is now a federal circuit judge?

Mr. Thomas H. Denney: Yes it is unless there are no further questions, I'll reserve the balance of my time.

Chief Justice Warren E. Burger: Very well Mr. Denney.

Mr. McKeen.

Argument of Sam A. Mckeen

Mr. Sam A. Mckeen: Mr. Chief Justice and may it please the Court.

Counsel for the state indicated and some of the justices questioned him to the point that if this case was decided on state grounds that the Supreme Court of United States would have no jurisdiction and counsel said that the case wouldn’t be here.

But it was -- It's my understanding that this Court is also expressed a doctrine that when a state has within its governmental framework the mechanics to cure any problem themselves that Supreme Court of United States will not interfere in determining how they should interpret the constitutional provisions.

In this case, the State of Oregon has a constitution that includes very similar words to the United States Constitution.

They will have the opportunity if it comes before them in appropriate case to decide whether it overruled Brewton or to decide whether to follow the federal rule as set out in Harris versus New York.

But in this case, whether their interpretation was correct or incorrect there was still an interpretation it's more restrictive to the prosecution than that of the Supreme Court of United States.

And this Court has said many, many times that in such a situation the states are free to adopt their own rules in search and seizure.

Chief Justice Warren E. Burger: Haven't we had a little qualification to that if they place it on their own law?

Mr. Sam A. Mckeen: Well, --

Chief Justice Warren E. Burger: Their own constitution or statutes presumably?

Mr. Sam A. Mckeen: My reading of the case is I didn't believe that until Green versus California but it appeared to me that within as long as the state's interpretation even of the federal constitutional provision was more restrictive then there's no constitutional question before this Court because no one rights has been valid.

Chief Justice Warren E. Burger: Why do you suppose we send -- we sent some of those cases back to the state Supreme Court to ask him to make it clear whether they were acting under the federal or under their state constitution if that's the case?

Mr. Sam A. Mckeen: Well, I wasn't aware of that Your Honor.

I was aware of your concurring opinion in Green versus California which I thought you put there for the very purpose of showing that the states are free to adopt their own rules and that the State of California could very well when you sent the case back had very well resolve it the same way and you are trying to tell I'm not to, so long as they didn't misinterpret the federal constitution.

In that case, Green versus California, the California legislature had passed the law that was constitutional.

And the California legislature was recognized by this Court as being a proper party to legislate for California and California Supreme Court erroneously held the statute to be unconstitutional under federal law.

So, this put a federal restriction under State of California and that isn't the case in Hass.

In the Green case, there was a restriction put on the legislature to pass this particular law.

This Court removed that restriction by holding that the law was not unconstitutional.

But in that case, the state had a proper -- was a proper standing before the Court because they have the right to legislate in the area of criminal law.

The case just before the Court here State of Oregon versus Hass how do we get by the opinion that this Court or the statement of this Court made in Florida versus Mellon cited in my brief.

This Court can have the right to pronounce an abstract opinion upon the constitutionality of the state law.

Such law must be brought into actually threatened operation upon rights properly falling under judicial cognizance.

Cooper versus California -- our holding does not affect the state's power to impose higher standards on searches and seizures.

Kerr versus California and --

Justice William H. Rehnquist: Are you contending for anything more than that the Supreme Court of Oregon or the Oregon legislature has a right under state law or state constitutional law to impose more rigorous requirements on the prosecution and being imposed by the federal constitution?

Mr. Sam A. Mckeen: Yes Your Honor that's exactly what I'm saying, what I attempt to say in my brief.

Justice William H. Rehnquist: But are you saying anything more than that?

What I'm trying to find out is in order to evaluate your point, do we look to the Supreme Court of Oregon opinions and see whether they were -- appear to be based on the federal constitution or on the Oregon Constitution as well?

Mr. Sam A. Mckeen: Well, I wouldn't think it would really make difference.

It would appear to me that as long as the state has within its framework the mechanics to make the opinion that they may then this Court would have no real purpose in examining those opinions unless there was a federally protected right violated or a constitutional -- federally constitutional question raised?

Justice Byron R. White: Mr. McKeen, are you saying something like this that you're familiar with the differences among us of this Court on the question of the constitutionality of obscenity laws?

There are members of this Court who think that no obscenity law is constitutional that it violates the First Amendment and there are others who think there're maybe within certain limits constitutionality of obscenity laws.

Now, suppose you had a prosecution under the obscenity and there were conviction and it was within the scope of the principle as this Court has stated that are permissible to a state but your Supreme Court would to say, “I don't agree within majority of the Supreme Court.

We agree with Mr. Justice Douglas that no obscenity law is constitutional” under the federal constitution and with the reverse the conviction on that ground.

Are you suggesting that that would be conclusive on the State of Oregon because that was a holding of your Supreme Court it interpreted the federal constitution.

Has it thought, it ought to be rather than the way this Court had?

Mr. Sam A. Mckeen: It would still appear to me Your Honor to be an academic opinion of this Court if the Supreme Court of Oregon chose to violate no one’s constitutional rights and still make a finding difference in this Court.

It’s my understanding that the two courts are parallel to each other that this isn't the court to stands above a state Supreme Court that they were with respect for each other’s opinion.

Justice Byron R. White: That makes federal constitution more restrictive.

It can't interpret more expansively in this Court does but may interpret it more restrictively, is that --

Mr. Sam A. Mckeen: That was my understanding and Your Honor the Supreme Court of Oregon said that.

In the Supreme Court of Oregon said in the Florance case that's cited in both briefs that if we choose we can continue to apply this interpretation.

We can do so by interpreting Article 1, Section 9 of the Oregon Constitution prohibition of unreasonable searches and seizures as being more restrictive than the Fourth Amendment at that time.

Justice Byron R. White: No question about that.

That wasn’t my question Mr. McKeen.

Mr. Sam A. Mckeen: I understand Your Honor but in the next sentence was your question or we can interpret the Fourth Amendment more restrictively than interpreted by the United States Supreme Court.

Now, that was said by a Justice of the Supreme Court of the State of Oregon.

If -- it would appear to me and there are some cases that have cited where this Court has said that we're not here concerned if the Constitution -- if an act is unconstitutional or if the Constitution has been violated.

We're concerned only if the proper party brings a proper matter before this Court.

Not, this isn't the forum where the Court should give opinions that will aid persons in interpreting the law unless parties before there properly before the Court.

Chief Justice Warren E. Burger: I noticed that neither you nor your friends have cited the Krivda case, are you familiar with that?

Mr. Sam A. Mckeen: No, I'm not Your Honor.

Chief Justice Warren E. Burger: That's I think perhaps the most recent case which we sent back that was California was it?

The California Supreme Court and said please in fact -- we said, please tell us whether you're deciding this case under the federal constitution or under your own? There have been several of those if they decided and under their own constitution that's the end of the case.

That’s their responsibility of authority.

If they’re deciding it under the federal constitution, it's ours.

That's the burden of this Krivda case and others.

Mr. Sam A. Mckeen: Well, the Oregon Supreme Court from the text of their opinion in Hass case recognizes the importance of following the interpretation of the federal courts.

But they still have within the framework of the judicial system in Oregon.

The power or the means to resolve this question without interfering with the federal constitution and therefore, under the abstention doctrine that this Court has stated it would appear to me that this Court should have no real interest in how -- which way the State of Oregon chooses to go.

I understand that there's been statements made by the Court that I'm not familiar with that is opposed to my opinion that that was my opinion.

Justice Byron R. White: Excuse me counsel, would you have the same view if the police officer were sued for invading someone's constitutional rights and a word of damages has made against him based on the Supreme Court of Oregon’s holding and he said, “Well, that maybe the opinion of Supreme Court of Oregon but Supreme Court of United States says, that “I didn’t violate somebody’s constitutional right.

Do you think you have to pay the damages based on the Oregon?

Mr. Sam A. Mckeen: Wouldn't then there be a violation of the police officer's constitute federally constituted -- constitutional rights --

Justice Byron R. White: No, the Supreme Court of Oregon says that he’s at fault.

The Supreme Court of United States says he isn't.

Mr. Sam A. Mckeen: But in any areas Your Honor where the state Supreme Court is less restrictive and certainly not contending that the Supreme Court of the United States doesn't have jurisdiction.

Justice Byron R. White: I understand.

Mr. Sam A. Mckeen: But what the police officer if he's awarded -- if he's required to pay damages when his act was proper under the federal constitution then I don't think that he is properly before this Court on a federal constitution.

Justice Byron R. White: The Supreme Court of Oregon says, “It isn’t proper under the federal constitution.

Supreme Court of United States says, “It is.”

Mr. Sam A. Mckeen: Well, I would think in that case you should have access to this Court. They don’t believe that’s --

Justice William H. Rehnquist: Certainly, you have a wrong long line of cases that this Court has taken where there have been appeals by the state from a judgment of the State Supreme Court saying that the state couldn't impose a tax on a potential taxpayer either for Due Process or for Commerce Clause reasons?

I would think that would cut against your reasoning here.

Mr. Sam A. Mckeen: That the state can appeal in order that it effects their property interest the same as any person that has standing before this Court.

Justice William H. Rehnquist: But does the state have property interest under the Constitution?

Mr. Sam A. Mckeen: Well, --

Justice William H. Rehnquist: Does it have any greater interest in collecting revenues that in enforcing the criminal law?

Mr. Sam A. Mckeen: Well, I believe that the distinction has been made by the Supreme Court of United States.

It is just that that the state is a proper party when the suit involves its property, its land, a situation, let's say when the federal government wants to put a federal part with interstate involves the state's own proprietary interest and then there a proper person that can come before this Court.

But they have no property rights in the conviction of the burglar.

They have no real interest in whether the Oregon Supreme Court is more restrictive or not than the federal Supreme Court -- the State of Oregon has no interest in that.

There they are to follow whatever the law of the Supreme Court of Oregon is not to claim any interest in what it is that enforce the law as it is.

Justice Byron R. White: Well, what you're suggesting I suppose is at least in criminal prosecution while the Supreme Court of Oregon can't narrow the constitutional guarantees of the accuse as we interpret it.

It can't extend them if it wants.

Mr. Sam A. Mckeen: Well, yes Your Honor and it has been said --

Justice Byron R. White: What you're suggesting as I gather and the one the extensions do not have to be based upon the state constitution.

They can be based on the Oregon Supreme Court's reading of a federal constitution, is that it?

Mr. Sam A. Mckeen: I would think so and of course I have the feeling that I'm not completely right on that but that's my understanding.

Justice Byron R. White: Well, you have some authority cited.

I don't know much about them in your brief which suggests that I gather.

Mr. Sam A. Mckeen: Well, Cooper versus California says -- now, this was Cooper versus California was searched where the state had a statute also and the Supreme Court considered the case only as to whether or not the search was reasonable under the federal constitution.

And they said the state is free if it chooses to do so without review by us to apply its own state's harmless error rule to set areas of state law.

They're being no federal constitutional area here, there's no need for us to determine this matter and that's --

Chief Justice Warren E. Burger: Your response about reading the constitution -- federal constitution more expansively then the -- it's read up here would bring you right against the proposition Mr. Justice White suggested to you that if that reading then imposed a liability on a police officer for damages for violating the Fourth Amendment or any other provision in a way that we did not countenance then you I thought did say that the officer would have a claim that his rights under the federal constitution have been violated because he regarded and have been talked to regard this United States Constitution as the supreme law of the land.

Mr. Sam A. Mckeen: Well, that still Your Honor is the way that I would think it would be if I can follow the thread of the fact situation correctly.

The officer has his citizen of United States under the federal constitution he would have a right to have done what he did and therefore his constitutional rights have been violated by damages and he should have proper standing before this Court.

Justice Byron R. White: The other side of the argument is that (Inaudible)?

Mr. Sam A. Mckeen: Well, they did --

Justice Byron R. White: Do you say that it is (Inaudible)?

Mr. Sam A. Mckeen: Absolutely not Your Honor.

What I attempted to say was that it wouldn't make any difference that the Supreme Court of Oregon interpreted Harris --

Justice Byron R. White: I know, I know.

Does it then make a difference?

What if you lose all on that?

What if you are sitting here as authority, reviewing the Oregon Supreme Court decision, what about that?

Mr. Sam A. Mckeen: Well, it's in my feeling that they're trying the case and through their record it's been submitted to the court the difference is clear between Harris and Hass because the Harris case was an unintentional negligent failure to say some magic words and there was -- that's all it was.

The Hass case the defendant was fully advised of his rights.

The police officer knew he was advised of his rights.

He knew they had the right to a lawyer.

He asked for a lawyer and the police officer at that point in time chose to continue the investigation and caused this boy to incriminate himself.

I'm pointing out bicycles, I'm pointing out a house that the bicycles have been stolen from.

And so at that point in time, this police officer knew that he had nothing to lose by purposely violating their boy's constitutional rights Your Honor.

Because if he didn't he wouldn't get anything and if he gave him a lawyer any lawyer would have told that boy that quite incriminating himself.

So, the police officer knows, it's all or nothing I can go ahead and violate his constitutional rights take a chance of getting the statement in or at least use it for impeachment purposes and that’s better than stopping the investigation.

And so, they have affirmatively and that's what the Supreme Court of Oregon said that's where it based its difference on and the difference is there.

The restriction against police for purposely and knowingly violating a person's constitutional rights in face of the knowledge of this Court's requirements is a difference set of facts than an intent to know failure to say words that are necessary.

And the Harris case said that also the Harris said, “Statements otherwise trustworthy.

Some of the cases that have not followed the Harris case have used backward reasoning.

There's a case where a Supreme Court has held that because the prior statement was given on the preliminary hearing then Harris didn't apply.

But actually, if the statement was given of the preliminary hearing then it would be more trustworthy than one given to a police officer.

So, states refused to follow Harris based upon reasons that aren't really related to anything except the reasons do not follow Harris.

Chief Justice Warren E. Burger: Are you referring to any state cases since Harris and which they sought to review here the state sought to review here or did the state just acquiesce?

Mr. Sam A. Mckeen: I'm not sure if that was -- this was one of the cases cited in the appellant's brief as authority for the states that had followed ahead and followed Harris.

But I'm not sure if that was appeal to this Court now.

Chief Justice Warren E. Burger: Do have a name or particular case in mind?

Mr. Sam A. Mckeen: I just don't.

I believe that that is accurate Commonwealth versus Horner 453 Pa. 435, 309 or 450 of Pennsylvania 435.

Excuse me.

309 A 2d 552 (1973).

Chief Justice Warren E. Burger: But there's no indication in a citation that the certiorari was sought and denied?

Mr. Sam A. Mckeen: No.

But the reason that they didn't follow Harris was circulated I mean it was if to reverse --

Justice Byron R. White: May I -- I'm not sure but I think the Pennsylvania Supreme Court is one Supreme Court it's kind of rather far in saying that it's adopting a state law and certain decisions of this Court and I have some recollection the owner is one of those.

Incidentally, I think you opened your argument by suggesting that the 1967 Brewton should be read in any event as a decision of state law or did I (Voice Overlap) --

Mr. Sam A. Mckeen: Well, Your Honor it is in the opinion of the state Supreme Court of Oregon regardless of how they based it.

Justice Byron R. White: I know but (Voice Overlap) is rested on state law and federal law or which?

Mr. Sam A. Mckeen: I don't know.

I thought that I had a copy of Brewton and I spent some time since I've read it.

My friends didn’t --

Justice Byron R. White: Well, let's say it's attached to the petition the full opinion is attached to the petition, page 38.

Chief Justice Warren E. Burger: Mr. Denney, do you have anything further?

Rebuttal of Thomas H. Denney

Mr. Thomas H. Denney: Mr. Chief Justice and may it please the Court, yes, two very brief points.

First of all, with regard to the issue of whether this is decided on state or federal grounds I think and I don’t want to take a great deal of time with the basic proposition.

It makes all the difference in the world whether this case is predicated on state or constitutional ground or federal grounds.

Counsel mentioned in his argument the case of State versus Florance which we cited in our brief in a footnote to point out that the Oregon Supreme Court does think itself entitled to interpret federal questions more restrictively than this Court does.

This is the sentence which Mr. McKeen just mentioned in his oral argument that the end of it we can interpret the Fourth Amendment more restrictively than interpreted by the United States Supreme Court.

Justice Byron R. White: And you disagree with that?

Mr. Thomas H. Denney: Yes, we certainly do.

Justice Potter Stewart: And why are you --

Mr. Thomas H. Denney: This is Footnote 12, page 9 of the petition Your Honor.

I'm quoting from State versus Florance.

Justice Potter Stewart: What view was that?

Mr. Thomas H. Denney: It was just decided about a month after this case Your Honor.

It’s 527 P.2nd 1202 I didn’t have the full citation at the time I wrote that brief though I do have it in the (Voice Overlap) --

Justice Potter Stewart: Was far as search and seizure?

Mr. Thomas H. Denney: Yes it was a search and seizure.

Justice William H. Rehnquist: That was dicta in Florance.

Mr. Thomas H. Denney: The Court -- the Oregon Supreme Court decided to follow this Court’s interpretation of the Fourth Amendment as enunciated in U.S. versus Robinson Your Honor.

So, it is kind of dictum they were saying well, in the full context of the opinion the opinion run something to the effect that the Robinson opinion somewhat surprises us we have though the law was a little more restrictive if we choose we can continue to apply a more restrictive interpretation of the law either by interpreting the Oregon Constitution provision on search and seizure or by interpreting the Fourth Amendment more restrictively.

Justice Byron R. White: And you would agree on the first --

Mr. Thomas H. Denney: Certainly, we agree on the first.

Justice Byron R. White: -- but not on the second?

Mr. Thomas H. Denney: No, and that mere fact that the Court in this case indicates that they think they're free to do it. I think shed some light on what they are doing in this case.

Justice Byron R. White: Well, I don’t -- I thought your court in this case expressly put aside this whole issue that didn’t make any difference what this rule was that this was just a different case, completely different case and that they didn’t have to interpret.

They didn’t certainly didn’t concede here.

They were interpreting the federal constitution more restrictively in this Court.

Mr. Thomas H. Denney: It seems to me Your Honor that they have a very fact that they have to distinguish to Harris case is some indication that they do this.

Justice Byron R. White: Well, if some indication that they were deciding and on the basis of federal law that’s what you are going to say.

Mr. Thomas H. Denney: That was my point, yes.

In addition to the other factors which are mentioned --

Justice Byron R. White: Well, they may be wrong but they are not plainly in this case that they have a right to be wrong.

Mr. Thomas H. Denney: Not expressly.

My point is that implicitly they think they do.

Justice Potter Stewart: Well, but if they fell an obligation as you just said to distinguish the Harris case, the implication would be that in this case that they thought they didn’t feel free to disregard Harris in other words.

Mr. Thomas H. Denney: Yes, that is correct.

Justice Potter Stewart: They felt an obligation to distinguish Harris.

Mr. Thomas H. Denney: And that is why I'm saying which was based --

Justice Potter Stewart: Which would lead to the inference that they felt themselves not free to interpret the federal constitution in a different way from its interpretation by this Court?

Do you see what I mean?

Or else they wouldn’t have felt any obligation to distinguish Harris but you just said we --

Mr. Thomas H. Denney: On the contrary, because Harris is a ruling that is favorable.

I suppose the argument can be made either way but the fact is that the Harris decision cuts against the Oregon Supreme Court’s decision in this case.

The distinction that they have to draw is to say on its facts this isn’t Harris.

And therefore they are still interpreting the federal constitution is the position I'm taking.

Turning to the merits of the issue just briefly, there was one other point that came up in counsel’s argument for the respondent.

The Harris case does not pause to consider whether the states or whether the police officer’s failure to advise the man in toto of his constitutional rights was inadvertent or whether it was unintentional or whether it was intentional.

Similarly, we think that the kind of questioning that goes on here or the asking the defendant to continue the investigation even if this could be construed as an intentional violation of constitutional rights and on the facts of this case we don’t think it rises at that level.

We still think that the policy enunciated in Harris is applicable to this case.

Simply because in either situation as the Court held the prophylactic purpose of Miranda is sufficiently served by keeping the statement subsequently obtained out of the case in chief; but keeping it available to prevent perjury a possible out note perjury when the defendant takes to stand and keeping it available for impeachment purposes.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.