UNITED STATES v. GUANA-SANCHEZ

Print this transcript Transcript: 

Argument of Paul L. Friedman

Chief Justice Warren E. Burger: We'll hear arguments first this morning in Number 73-820, United States against Guana-Sanchez.

Mr. Friedman you may proceed whenever you are ready.

Mr. Paul L. Friedman: Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals for the Seventh Circuit.

Respondent was charged in a one-count indictment filed in the United States District Court for the northern district of Illinois, for having knowingly and unlawfully transported three aliens within the United States in violation of Title 8, United States Code, Section 132482.

He filed a pretrial motion to suppress evidence alleging that he and his three passengers had been illegally arrested while in his car, and of the Government's evidence depended upon the testimony of the passengers, which he said was the fruit of the illegal arrest.

The District Court granted the motion to suppress the statements made by the passengers and their future testimony at respondent's trial.

The Government appealed the decision, and the Court of Appeals affirmed the District Court with one judge dissenting.

Justice Potter Stewart: To suppress the statements made, where and when were they made, or are you going to get to that I guess?

Mr. Paul L. Friedman: Yes, I'm going to go through the facts in some detail because I think it's very important to the resolution of the case.

The issue on which we petitioned, is whether a defendant has standing to suppress statements and future testimony of witnesses on the ground that they were unlawfully arrested while passengers in his automobile.

The statements, I might say, took place later when they got down to the police station.

But the facts of the suppression hearing briefly show the following, I might add that they came solely from a police.

He'd being the only the witness at the suppression hearing.

He testified that he, Officer Pat Vincent Tenudo was a police officer in the village of Villa Park, Illinois some 17 miles west of Chicago, that that was a small village of 25,000 to 30,000 people, about half residential and half industrial and that the industry consisted of small factories and businesses.

He also testified that the factories, some of them, often looked for cheap labor and he related three experiences of his own when he was involved in helping the checkout of individuals who've turned out to be illegal entrants from Mexico, who would apparently come to the area to work in the factories.

In each case, those people have no identification, spoke no English and had arrived in the area either by car, bus or truck.

Now in this particular night, he and his partner at about 2:30 in the morning did not stop a vehicle.

They saw a vehicle already stopped, pulled over to the side of the road in the vacant lot at an intersection about 15 or 20 miles off the road. The lights of the car, the headlights were on.

The interior dome light was on.

The officers went over to see if they could be of assistance to see if these people were lost.

It appeared to them the driver was looking at a piece of paper which may have been a map.

And indeed when they drove over to the car, they saw respondent sitting behind the steering wheel on the driver side looking at an Illinois road map.

Three other people were in the car.

One beside the driver in the front seat, two in the back seat, on the floor of the car were three shopping bags containing what appeared to be items of clothing.

The officers before talking to the respondent and his passengers radioed in their location to headquarters and radioed in the license tag number of the car.

Officer Hall went over to the driver's side.

Officer Tenudo went to the passenger side.

Officer Hall asked the respondent if they could be of any help with the problem was.

Respondent said they were looking for a restaurant owned by a friend, but he didn't know the name of the restaurant.

They couldn't find that restaurant.

They were looking for another restaurant which he did name.

One of the officers radioed in to some of the neighboring towns, and from those towns found out at least that the restaurant in the area closed by midnight or 1 o'clock.

Although not necessarily all the restaurants closed by midnight or 1 o'clock.

At this point, Officer Hall asked respondent for some identification.

He showed the officer what appeared to be and apparently valid Illinois driver's license.

Now either at about that same time or later when they got back to the station, although we don't think it's particularly important which.

The radio dispatcher informed to the officers that they had checked out the license tag number.

The car belonged to the same individual whose name appeared on the license.

The car was not stolen.

It was not wanted in connection with any particular crime.

The officer, after checking the driver's license, asked the passengers for identification.

They shrugged their shoulders as if they didn't understand the question.

The officer repeated the question.

He got the same response.

He then asked the driver --

Justice Potter Stewart: What was the question?

Mr. Paul L. Friedman: The question to the passengers was “Do you have any identification?”

And the passengers indicated by gesture that they didn't understand.

He then, the officer, asked respondent whether he spoke Spanish.

Chief Justice Warren E. Burger: Respondent was the driver?

Mr. Paul L. Friedman: The respondent was the driver, the other three, passengers in his car.

He asked him if he spoke Spanish and if he would ask the passengers for identification.

The respondent said something to the three passengers in a language the officers did not understand.

They assumed it to be Spanish.

In response to the respondent's inquiry, the two people in the back shook their heads back and forth as if to indicate, no they had no identification, assuming that was the question asked by the driver.

The gentleman in the front seat handed the officers a little card written in a foreign language which appeared to be Spanish.

The officers couldn't read except to make out three words, army, military and Mexico.

They assumed that that -- they concluded that that meant that the -- that was an army identification card from Mexico.

They called their sergeant.

The sergeant arrived a few minutes later.

Through respondent, asked the two passengers in the back seat, the two without identification, to get out of the car and to come to the police station.

They placed them in a police vehicle to transport them to the station.

At that point, Officer Hall asked respondent if he wouldn't mind coming to the station while a check was done on the two persons without identification.

Respondent answered “Fine, I will come with you.”

And along with the passenger who had shown identification, he followed the officers to the station in his own car.

At no time prior to the trip to the station did any police officer enter the car or search the car.

And when they got to the station, the sergeant asked the three passengers, again through respondent, if they would write down on a piece of paper their names and their ages.

He then called the local office of the Immigration and Naturalization Service to run a name check on these three people, and Chief Parton of that Service asked to speak with the three passengers.

He spoke with each of them in Spanish, but what sounded to the officers to be Spanish.

And after speaking with them, told the sergeant to hold off four men until morning, because the three men had admitted that they were in the country illegally.

Now, just to round out the picture of what happened at the hearing, in response to some hypothetical questions from court and counsel, the officer testified that if respondent had driven off without asking permission after having shown his driver's license but with the unidentified persons still on the car, he would've been stopped.

He also testified however that if he had refused to come to the station when asked, respondent would've been free to leave, his license having been checked out and there being no further reason to detain him.

The --

Justice Potter Stewart: He's free to leave alone --

Mr. Paul L. Friedman: Free to leave alone.

Not with his passengers, at least that's certainly the implication of the officer's answer.

And the inference we draw from those two inquiries answered is that he would've been detained if he tried to leave with the passengers, because they hadn't been checked out.

But he would've been free to leave alone.

Now the District Court granted the motion to suppress.

He found that the license check was reasonable, but anything thereafter was unreasonable.

No need -- no justification to detain them further and to interrogate the passengers.

He found that the interrogation constituted the search of the car, even though the passengers were in plain view.

And solely for the purposes of challenging finding, and that some illegality flowed from it, we assumed arguendo in the Court of Appeals that it was a search, but the whole incident at the car was lawful.

And he also said that the arrest of respondent and his passengers were unlawful and that everything that flowed were fruits and should be suppressed.

Now the Court of Appeals affirmed.

What it did, and we think its' important for analysis, is it said there were three steps in the facts as they developed.

The first step was the license check and that was perfectly reasonable and justified.

The second step was the period beginning --

Justice Potter Stewart: That is the check of the driver's license --

Mr. Paul L. Friedman: Of the driver's license.

Justice Potter Stewart: -- of the respondent alone?

Mr. Paul L. Friedman: The respondent's license alone.

The second step according to the Court of Appeals began when the driver was given his license back, and everything else that happened at the car, the interrogation of the passengers, was the second steps, said the Court of Appeals.

And the third step was the period beginning with the trip to the police station.

Now the problem, as the case comes here we think, is that while the court said the first step was reasonable and the third step wasn't.

It didn't talk about the second step.

It moved immediately to the third step and said that that was an unlawful arrest taking them to the station.

That respondent was unlawfully arrested, and that everything that flowed was fruits of that.

Now the dissenting judge, also addressing himself to that first, said that he thought everything was reasonable.

But then went on to say “If we're talking about the respondent's arrest, respondent's got no standing ‘coz nothing flowed from that.

And secondly, that even assuming some illegality, live witness testimony should be treated differently for purposes of the exclusionary rule from inanimate objects.”

Justice Potter Stewart: Well now, you speak of the respondent's arrest.

It's your position the respondent was not arrested, isn't it?

Mr. Paul L. Friedman: It's our position that -- we're talking about when they left the car?

Justice Potter Stewart: Yes.

Mr. Paul L. Friedman: It's our position that respondent was not arrested.

But that even if he was, there were no fruits of his arrest.

The only fruits in this case come from the arrests if they were arrested.

And we're not sure that they were arrested either, frankly.

We think it may have been a reasonable detention in the circumstances or that it may have been an arrest on probable cause.

But in any event, anything that flowed, the statements and the future testimony of the witnesses, flowed from the arrest of the passengers, not the arrest of respondent.

And that's essentially the only question on which we petition the Court and the only question that we think it's necessary to decide, because any illegality in that second step which respondent talks about in his brief, was not directly addressed by the Court of Appeals.

We think it might be appropriate to let that court address it first.

Although we also think that it's inferable from the Court's opinion that everything in that second step was also reasonable, because it said the only illegality that held that the only thing was illegal were the arrest taking them down to the station.

Chief Justice Warren E. Burger: Let me see if I have the facts here now.

Only the two passengers from the rear seat of the car who did not have identification were asked to -- were taken in the police car to the station?

Mr. Paul L. Friedman: That's correct.

Chief Justice Warren E. Burger: And the man who had -- the passenger who had identification and the driver followed in their car?

Mr. Paul L. Friedman: That's correct.

Chief Justice Warren E. Burger: Was a police officer placed in their car?

Mr. Paul L. Friedman: No, there was not.

Well, essentially as they said, they're no fruits of respondent's arrest, if we deal solely with that third step in the facts.

No statements were made by respondent.

No evidence came from respondent. Nothing was seized from respondent.

And I think the Court of Appeals made its mistake by not isolating what were four separate human beings and looking at what happened to each of those separate human beings.

Justice Byron R. White: Aren't you assuming something though that the officers had the right to hold the respondent after he had identified himself?

Mr. Paul L. Friedman: Well --

Justice Byron R. White: And showed that he had his proper papers.

Let's assume that he had been alone in the car, and they came and asked him to identify himself.

They would let him go right away?

Mr. Paul L. Friedman: They would let him go right away.

Justice Byron R. White: Now so that assumed -- you were assuming that when you stop -- if the officer was entitled to go over and ask somebody driver a car to identify himself and show his license, you're assuming that they also have the right to have the passengers identify themselves?

Mr. Paul L. Friedman: We're assuming that it's reasonable to ask passengers in a car to identify themselves.

Justice Byron R. White: Yes, and let's assume that it is not.

Assume that it was not proper to do that then you have held the driver of the car beyond the time when you find -- beyond the time that yet you should be able to hold them, in which event arguably you have a fruit of an illegality with respect to him if you go ahead to interrogate the passengers.

Mr. Paul L. Friedman: Well we would not concede he was being held at all.

There is nothing to say that he couldn't have left at that point.

Justice Byron R. White: You've already said you wouldn't let them go.

Mr. Paul L. Friedman: No, what the officer said in his testimony was that he wouldn't be permitted to leave so long as the passengers were still with him.

Justice Byron R. White: Exactly.

Mr. Paul L. Friedman: But if the passengers had been separated --

Justice Byron R. White: Let's assume though.

No let's -- let's just assume, I'm not saying this is so.

Assume you have no business with the passengers and at what you do with them to the passengers is illegal.

Let's just assume that.

And that you have no business holding the driver in order to interrogate or to get the passengers out of his car.

Now just assume then.

Mr. Paul L. Friedman: Well, I think it's difficult to assume that you have no business holding them for the brief time it would take to get them out of his car.

I think that what could easily happen is the officer saying “We have business with the passengers.

You've got no interest in those passengers, they're other human beings.

They are not briefcases.

They are not papers.”

Justice Byron R. White: You posted that he'd be able to drive away as soon as he identifies himself, and you said “No, just hold on a minute.

We're going to do something else here.”

With your -- with something in your car, maybe bodies, but we're going to get something out of your car.

Mr. Paul L. Friedman: Well, if four people are walking down the street and there's reason to arrest three of them, you can take those three people and separate them from the other individual.

Now it doesn't seem to us any different if four people happen to be in a car.

Does it mean that if there's reason to arrest three of them, you have to arrest all four of them just because they happen to be on --

Justice Byron R. White: -- get this question if you had some right and if you had some proper business with the passengers.

Mr. Paul L. Friedman: Well, that you --

Justice Byron R. White: And that you may hold the driver while you complete your business with the passengers.

Now what authority do you have for that?

Mr. Paul L. Friedman: Well we think that the right to go up to some individuals, whether they be on a street or in an automobile and ask them some questions.

There's a footnote in Terry versus Ohio.

I don't think you need reasonable suspicion to do that.

Does your concurring opinion in Terry versus Ohio?

Justice Byron R. White: What -- now you're doing on an automobile and you're holding one person while you complete your business with another.

Now give me some authority for that.

Mr. Paul L. Friedman: There's a case in the -- I remember a lot of stop cases of course, but --

Justice Byron R. White: -- it seems to me a rather fundamental point in this case.

Mr. Paul L. Friedman: Well we don't think that that point is in this case.

We think that since the Court of Appeals only dealt with the arrests --

Justice Byron R. White: -- it seems -- assuming that if you're dealing with the passengers as illegal, it seems to me whatever developed from the passengers is arguably at least a fruit of detaining the driver.

Mr. Paul L. Friedman: Well, we think that the Court of Appeals did not deal with anything that happened in that car and say it was illegal.

And of course this Court could do so if it wanted to.

What it talked about was the arrest and what flowed from the arrest.

We say nothing flowed from the arrest.

Now if we go back to step two at the car, what flowed, flowed from the interrogation of the passengers.

Justice Byron R. White: Let me ask you something else.

Suppose that after you -- when you got the passengers out of the car, you saw a briefcase in the back of the car.

And then you reached -- and the officers reached in and got the briefcase and it belonged to one of the passenger.

And they opened it right then and there, and it incriminated the driver.

Mr. Paul L. Friedman: Then we think it's certainly arguable that he's got standing to complain.

Justice Byron R. White: Yes, I would think he would because he is -- because they have invaded his car and in effect seized something out of his car which is a protected area.

Mr. Paul L. Friedman: But the car is a protected area.

And --

Chief Justice Warren E. Burger: Isn't that illustrated clearly in this case, because when they got to the police station, they found a revolver in the glove compartment of the car presumable belonging to the driver.

But the Government never sought to use that as evidence so far as this case is concerned, is that not correct?

Mr. Paul L. Friedman: That's correct.

And so far as we know it was never charged for that.

Chief Justice Warren E. Burger: And it would be reasonably assumed can it that someone concluded that that pistol fit precisely under what Mr. Justice White has just postulated namely, they had come into the possession of that pistol by invading the privacy of the driver's car?

Justice Byron R. White: Well let's assume that -- let's assume police break into a man's house illegally without a warrant but knowing that a henchman of his is there, and they arrest the henchman.

They take him out of the house.

They've entered the house illegally and take him down to the station.

He incriminates the owner of the house.

Now can you use his statements?

Mr. Paul L. Friedman: I'm not sure that the answer to that is clear because I think you then get to this whole question --

Justice Byron R. White: Well it seems to me you have to say that they can use it, because they seized these passengers out of this man's car here.

Mr. Paul L. Friedman: Well I don't think they seized them out of the car.

They didn't get into the car as they go into the house in your example.

They asked people to get out of the car.

They have a right to arrest people whether they be on the street or on the car, if there's probable cause.

They have a right to interrogate people whether they be on the street or in the car if there there's reasonable suspicion, or in the case of a license check, maybe even if there's not reasonable suspicion.

Justice Byron R. White: Nobody suggested that you've got probable cause to have arrested those people or to take them on the spot at all.

Mr. Paul L. Friedman: Well, I'm perfectly willing to suggest that.

Although I don't think it's important in this case.

I think that everything the police did step by step was reasonable on the facts of this case.

Justice Thurgood Marshall: It's been kind of a long period of time.

Mr. Paul L. Friedman: They stopped the car at 2:30 A.M., and all of these times were accurate because they're recorded in the radio log.

They were down to the police station by 2:47 A.M., so it's 17 minutes for the entire process to find out that they were illegally in the country.

But only --

Justice Thurgood Marshall: This was 17 minutes.

He called his superior officer and this was only 17 minutes?

Mr. Paul L. Friedman: That's correct.

The 2:33 -- 2:30 they saw the car.

2:33 they drove to where the car was parked.

At 2:37, the sergeant was on the scene already.

And at 2:47 they were at the police station, 2:46, 16 minutes.

Now, the radio log which was put in evidence, I believe by the defendant at the hearing, corroborates all of those times, a very short period of time that we're talking.

Justice Thurgood Marshall: 17 minutes?

Mr. Paul L. Friedman: It's a small town, and it's not that far to the police station apparently.

Justice Thurgood Marshall: Got more than one building in the town.

Mr. Paul L. Friedman: Well --

Chief Justice Warren E. Burger: Well this is the respondent's evidence, isn't it?

Mr. Paul L. Friedman: The radio log is, yes.

So that's --

Justice Thurgood Marshall: The radio log is the respondent's -- who kept the radio log?

Mr. Paul L. Friedman: Well the police kept it at my recollection.

Am I wrong?

I'm sorry.

I'm advised that I'm wrong.

Chief Justice Warren E. Burger: You said that the respondent put it in evidence.

Is that not correct?

Mr. Paul L. Friedman: I'm told that that's not correct.

I think where I got confused was we've had some disagreements during the litigation about what the log said about when the radio report came back.

But, alright, the Government put it in evidence.

Justice Thurgood Marshall: I'm still in my own.

I'm confused about the right to question these people.

The man in the front seat showed identification for Mexico.

And yet that was satisfactory.

Mr. Paul L. Friedman: Well, I would say, you know it's not entirely clear that it's satisfactory.

Justice Thurgood Marshall: Well he's certainly loose.

Mr. Paul L. Friedman: But -- well in fairness, I would have to say that the record is unclear whether they would've turned him loose.

Justice Thurgood Marshall: But didn't --

Mr. Paul L. Friedman: They would've turned the driver loose.

They asked the driver to follow down.

They asked the man to follow along with the drive.

They didn't take him to a police vehicle.

I don't think that the evidence makes clear what they would've done if the man with the Mexican I.D. card wanted to leave.

But their purpose they say, and it's uncontradicted, was to check out the other two people in the back who had no identification at least to the same extent that they checked out the man on the front seat.

And they had to take them down to the station to do it.

Now, --

Justice Thurgood Marshall: Well when they checked it, they put all three names in or two?

Mr. Paul L. Friedman: When they checked with Immigration Naturalization, they gave them all three names.

And they had all --

Justice Thurgood Marshall: (Voice overlap) he was in custody, wasn't he?

Mr. Paul L. Friedman: I think that it's arguable that all three of them were in custody.

Now the question is were they lawfully in custody or not, if you want to get to that point?

And if it was reasonable to do the license check, and if it was reasonable to ask the passengers for identification, then given the fact that they spoke no English, given the fact that they were Mexican appearing, given the fact that there were these bags of clothing in the car, given the fact it was 2:30 in the morning in an exclusively industrial area and given the officers prior experience in similar situations.

We think step by step it was reasonable.

The intrusions were minimal into these peoples privacy.

And they were checking out identifications.

Asking for a name and address is at least the plurality of the court one said, and I think Byers versus California, asking for name and address is essentially a neutral act.

There are other cases I mentioned, Miranda and the concurring opinion and the footnote in Terry.

The Miranda itself and the Terry and the concurring opinion asking questions of people in the street to get identification, Adams versus Williams is a reasonable act.

Now how and what the quantum of facts one has to have as a police officer to ask those questions is a sliding scale.

And if you look at this thing step by step, we think everything that they did is reasonable.

Chief Justice Warren E. Burger: Now you said that the outset that the issue in this case is a narrow one, namely, the standing of the driver to claim the benefit of some violation for the passenger's rights.

You haven't spent much time with that.

Mr. Paul L. Friedman: Well, we still think it's that narrow issue.

If you focus on step three, we think it's pretty clear that the arrest of the four individuals, assuming they were arrested or the detention should be viewed separately.

And everything that flowed, flowed from the arrests, putting it in quotes for now, of the passengers not of the driver.

Their statements, their future testimony flowed from that.

Had they been -- had the driver been arrested separately, there would've been no fruits.

Had the passengers been arrested separately and everything else followed the way it did here, clearly the driver would have no standing even though they incriminated him.

We think the dissenting judge summed it up pretty well when he said that while the passengers may have been agreed, the driver was not.

And the driver has no interest in bodies or the minds of his passengers.

That we think is the narrow issue before the Court.

Should the Court feel it appropriate to get in to that second stage which the Court of Appeals identified but did not discuss, we think there are three independent reasons which would support reversal here, one that everything was reasonable and I talked about that briefly in capsulized form.

Two that the same standing principles applied here would lead one to the conclusion that the respondent still has no standing.

Everything flowed from the passengers.

His rights were not infringed.

Justice Potter Stewart: You're talking about the step two so far?

Mr. Paul L. Friedman: Step two.

Justice Potter Stewart: That that --

Mr. Paul L. Friedman: If we want to talk about step two.

Justice Potter Stewart: If that's what you're taking about?

Mr. Paul L. Friedman: Well I'm talking about it because I think that some people would like to talk about it, but if you talk about that.

We still think the same standing principles would preclude him from being heard and complaining about this.

And we also think at that point, it maybe appropriate, although we don't think it's necessary to get to this question which we mentioned in the footnote and which the dissenting judge discussed, and which the Chief Justice discussed in numerous opinions when on the Court of Appeals.

And that is that live witnesses ought to be treated differently from any animate objects.

That essentially is our position.

Chief Justice Warren E. Burger: Mr. Beeler.

Argument of Joseph Beeler

Mr. Joseph Beeler: Mr. Chief Justice and may it please the Court.

This case arises out of the Villa Park, Illinois night time practice and procedure of demanding satisfactory proof of identity from everyone encountered in that suburb in an automobile, and taking those persons who can't produce the requested identity documents to the police station to see whether or not they may be criminals.

And frankly a little disappointed that the Government didn't address this problem a little bit more carefully.

That here we have an extraordinary dragnet procedure which I think poses great threats to Fourth Amendment rights.

The routine in this case is so comprehensive that the police in Villa Park would stop and demand proof of identity and take people to the jail to see if the might be criminals that they were merely encountered at the side of the road changing an obvious flat tire.

That's the kind of practice that we're dealing with in this case.

Justice Potter Stewart: Well, there's no indication that if the occupants in this car or any car had given their identity and that it checked out that they would've been taken to any station now, is there?

Mr. Joseph Beeler: I think it's clear from the testimony in the case that if everyone in the car that has all four passengers had had identity documents satisfactory to the police officers, then they could've continued on their business.

Chief Justice Warren E. Burger: In this case, we're dealing with passengers who could not speak English against the background of, so the record indicates, a number of employers in that community hiring illegal Mexican aliens.

And so that's another element to be taken into account, isn't it?

We aren't concerned in this case with what they have been doing in some other cases with English speaking passengers who are changing tires.

We're concerned with Spanish speaking passengers 2:30 in the morning, aren't we?

Mr. Joseph Beeler: Precisely and I think it's important that the Court take careful note of how it was that the Spanish identity of these passengers was learned.

If this was something that was paraded on the outside of the car, something that the police knew before they began their investigation, and before they detained Mr. Sanchez, then perhaps assuming that there had been some evidence in this case that the police officers were authorized to enforce immigration laws.

And I'd point out the District Court judge held on that holding has not been overturned nor the Government challenged it here.

But Illinois police officers are not vested with authority to investigate immigration offenses.

I think that Officer Tenudo had any confidence or experience that was meaningful in investigating immigration offenses, if he knew a few simple things like whether Puerto Ricans are American citizens or not.

We were able to recognize Mexicans.

With his own testimony was that he couldn't recognize Mexicans that he couldn't recognize Spanish.

So we have the circumstance here that because this is an immigration offense doesn't change things very much.

I mentioned the fact that the police learned that this was a group of four people, three of whom were Mexican aliens after the police encounter began.

The Government in its statement of facts suggests that there is a question as to when the police radio report came back from the radio dispatcher indicating that Mr. Sanchez was the owner of the motor vehicle and that the motor vehicle was not stolen or wanted in connection with any crime.

I think that the record couldn't be clear.

After all, the Government's own witness, Mr. Tenudo testified that it came back immediately.

But at the time that Mr. Sanchez's driver's license was returned to him, the police knew there was absolutely no suspicion connected with this car.

I would point out that I believe its footnote 9 of our brief deals extensively with this problem.

But his is an argument which the Government has raised for the first time in the Supreme Court on its brief in the merits.

And this is never raised the question below as to when this radio report came back.

And I think the Court, for purposes of this argument at least, until it can examine the footnote carefully should assume that the police had no reasonable suspicion whatsoever as to the car.

And whatever reasonable suspicion they may have had initially had been dispelled.

They had returned the driver's license, yet rather than let Mr. Sanchez drive on as he was entitled to, they testified that if he had attempted to leave at that time they would've have chased after him and pulled him off again.

It was then after he was detained in what we submit is a clear violation of Terry versus Ohio, since there was no basis whatsoever for the detention.

It was then that they asked the passengers if they wouldn't produce also.

And it was then and only then that they learned these individuals didn't speak English.

This flowed from the detention of Mr. Sanchez.

This is the second stage which the Government doesn't want to talk about.

But this is what the defendant has been arguing ever since the District Court.

We have not changed our argument one wit.

The Government, I think it will be demonstrated, has been over the lot.

The defendant in this case has standing, which is the only issue presented in the cert petition, because Mr. Sanchez, his own personal constitutional rights were violated.

He has a right to use the public highways free of temporary detention.

Those rights were violated when he wasn't free to move on.

As a direct result of this dragnet police practice in violation of his rights --

Justice William H. Rehnquist: Well what do you mean when you -- you don't mean to lay down absolute principle that he has the right to use the public highways free of any detention whatsoever, do you?

Mr. Joseph Beeler: What I'm talking about he has the right to use the public highways Mr. Justice Rehnquist, subject to the dictates of the Fourth Amendment which not only give him protection, but also permit reasonable police inquiry.

The Government in its cert petition abandoned their argument below, as I read the cert petition and as I read the brief in the merits, the Government made no argument that they could justify this detention under Terry versus Ohio or Adams versus Williams.

The first time that I've heard that argument in this Court was a few minutes ago when Mr. Friedman brought it up.

I'd point out that the Government is here as the petitioner.

They bring the Court of Appeals as the appellees and they lost in the District Court where they had the burden of justifying a warrantless arrest.

Chief Justice Warren E. Burger: Well what you're complaining about here, what your client's complaining about is that the two passengers in the backseat of the car testified in Sanchez trial that he had smuggled them across the border and into the United States, isn't that what you're complaining about?

Mr. Joseph Beeler: The Government's proposed testimony is that these three witnesses who were found in his car would be used against him to establish the elements of harboring or transporting.

Justice Potter Stewart: And if there was any testimony, I think there was a motion to suppress and it was granted?

Mr. Joseph Beeler: That's accurate.

That is the proposed testimony should this Court reverse the judgments below.

Chief Justice Warren E. Burger: What you're complaining about is, or the Government is resisting is the fact that these witnesses were not permitted to testify that he had smuggled them in.

Mr. Joseph Beeler: I don't believe that's accurate Mr. Chief Justice.

Chief Justice Warren E. Burger: Well then you --

Mr. Joseph Beeler: The Government would like to argue that.

I believe in some other case, there cert petition says that the question in this case is standing.

And they state expressly in their cert petition that this case does not represent an appropriate vehicle for determining the question which I think you might be getting at.

When or whether the fruit, rather when or whether the testimony of the witness discovered during an illegal search or detention is fruit of the poisonous tree.

And I think the reason the Government has backed away from that issue in their moving papers would be understood if I could read an excerpt from the Government's brief in the Court of Appeals.

This is page 78, I'm sorry, 77 of the appendix where the Government made the only argument that they made in the Court of Appeals.

And that is that the police procedure in this case was lawful and proper.

It was a justified extension of Terry versus Ohio and Adams versus Williams.

And they made the argument in the context of saying that the brief questioning was either a valid investigatory stop, or an illegal search.

And here's what they said.

This is the very first sentence and their very first paragraph.

“The Government assumes for purposes of this appeal that the questioning of the passengers in defendant's car constituted a search of the car to which defendant has standing to object.

The Government also concedes that the testimony of witnesses discovered during an illegal search can be suppressed as to a person has standing to object to the search.

The issue presented to this court is whether the questioning of the passengers while they were in defendant's car, constituted an illegal search or whether it was a proper and valid investigatory stop.”

Chief Justice Warren E. Burger: You don't suggest that this Court is now bound by what the Assistant United States Attorney argued in the Court of Appeals, do you?

Mr. Joseph Beeler: I'm not suggesting that.

But I think the litigation posture in which this case appears is important.

Chief Justice Warren E. Burger: You do not agree then that the basic issue here is standing?

Mr. Joseph Beeler: I agree.

The basic issue here is standing.

But I understand the question of standing to be one of whether or not the defendant's constitutional rights his own constitutional rights were violated by the police procedure, and having established in the District Court, and the Court of Appeals and the Government's briefs on the merits that there was no proper basis for the police conduct here.

And I think it being almost indisputable that Mr. Sanchez was detained so that this police procedure could be carried out.

I think establishes standing, his rights were violated.

Chief Justice Warren E. Burger: Does any -- do you cite us any case in which the testimony of witnesses such as these two passengers in the car has been excluded or suppressed because of a violation of the rights, constitutional rights of some other person?

That is, in this case, the driver.

Is there any parallel case that you --?

Mr. Joseph Beeler: Well, if I understand your question accurately, you're bringing us into the area of cases which seemed to take a case by case analysis to the question of whether or not a particular witnesses' testimony is fruit of the poisonous tree where that witness was discovered as a result of some police illegality.

Justice Potter Stewart: Tucker against Michigan involved that and once that case, in answer to the Chief Justice's question would be the decision of the Michigan Supreme Court in the Tucker case, isn't it?

Mr. Joseph Beeler: The Tucker case was a Fifth Amendment case --

Justice Potter Stewart: I know.

Mr. Joseph Beeler: -- in which compulsion is an important question.

And that's the harm that the court is trying to safeguard against, but that is an instance.

Chief Justice Warren E. Burger: What happened to the Tucker case?

Mr. Joseph Beeler: Well, in the Tucker case, this Court held that the witness who was, rather whose identity was learned as a result of the custodial interrogation which was in no way compulsive, which was in no way in violation of the Fourth Amendment could be used because of its trustworthiness.

That it was not fruit of any compulsion, because no compulsion was present.

As a matter of fact warnings were given in the Tucker case.

There was just a technical breach of Miranda versus Arizona.

Chief Justice Warren E. Burger: Is there any -- do you make any argument that the testimony of these two aliens in the backseat would be unreliable evidence?

Mr. Joseph Beeler: I'm -- I think that it might well be, because of the circumstances in which their custody was obtained in the great interest that they would have inculpating someone else in order escape liability themselves.

But that's -- I think the compulsion and trustworthiness question is one that you worry about in a Fifth Amendment case.

But in case after case of Fourth Amendment violations, the Court is excluded probative evidence.

They've excluded heroine, guns all manner of physical evidence which certainly is more reliable than a witness.

In answer to your question, Mr. Chief Justice about cases in which witnesses' testimony has been excluded.

I would refer to note 17 of the brief of the amici curiae.

And also in our memorandum in opposition, we listed a number of cases.

But in as much as the petition for certiorari does not raise the fruit question, and in as much as the Government didn't argue it, our brief on the merits doesn't take up that question.

However, to assume hypothetically, there is a fruit of the poisonous tree question in front of this Court, then I would point out that these particular witnesses were not only discovered as a result of an illegal detention.

But during the very course of that detention, right in the middle of the illegality, these witnesses and their status as Spanish speaking individuals, as people without identification cards was discovered.

Furthermore, these witnesses are really the crux of the Government's case.

He's charged with possessing them, with transporting them within the United States.

The obtaining of these witnesses' testimony came about directly by exploitation of the illegality.

The dragnet procedure in this case is directed purposefully at learning about identity and finding criminals.

And I can't see a clearer connection between an illegal police procedure and the evidence being offered.

It's very difficult to see how the paint in this case could have been purged.

Furthermore, these witnesses gave statements immediately upon being brought to the police station.

There were no intervening Miranda warnings and they were in custody.

As a matter fact, the record shows the Government has conceded and the Court of Appeals held and the District Court held that Mr. Sanchez too was arrested.

Justice William H. Rehnquist: But you not insist that on behalf of Mr. Sanchez that other people's testimony be suppressed because those other people weren't given Miranda warnings can you?

Mr. Joseph Beeler: I mentioned the Miranda warnings simply to show that the Government can argue that the statements given by the aliens at the police station were voluntary or something that or a product of their individual will, memory, perception, volition, factors with --

Justice William H. Rehnquist: Do you say if a witness wasn't given a Miranda warning, his statement by definition is not voluntary regardless of the circumstances?

Mr. Joseph Beeler: Not as a matter of law but I think it bears persuasively upon any analysis as to whether or not these witnesses caught in a foreign country in the middle of a crime being interrogated by a professional interrogator over the telephone, somehow came forth voluntarily to give testimony which purged the taint, their being discovered during the illegality.

Mr. Chief Justice Burger who was sitting then as a judge in the Court of Appeals in District Columbia in the case of Smith and Bowden versus United States which is at 324 F.2d, pointed out that the witness discovered there at first wouldn't give any statements and wouldn't cooperate.

And then later on, he decided to cooperate.

And this was seen as an intervening kind of factor.

But the Government which had the burden on this question put forward no evidence of an intervening guilty plea, of an intervening voluntary confession or any other independent source of this testimony.

If the testimony of a witness discovered during an illegal search or detention can ever be suppressed as fruit of the poisonous tree, why then we submit this is the case.

Justice Potter Stewart: To be there -- oh the problem as I have with this case is that you pointed out the Government has changed its argumentative position.

You've been rather consistent in yours.

But neither the District Court nor the Court of Appeals accepted either yours or the -- either or any versions of the Government.

It had its quite a different theory as I understand it.

And I want to be sure I understand yours and just tell me if it's this.

That you do not claim that the approach to the car, parked as it was with the lights on, violated anybody's constitutional rights nor indeed the interrogation of the driver to the extent that he was asked to provide identification of himself.

That that violated anybody's rights.

But that your point is, you tell me if I'm wrong is that after he did so, then from then on to detain him and/or to search his car violated his Fourth Amendment and Fourteenth Amendment rights, is that it?

Mr. Joseph Beeler: That's it.

I would add one other thing.

The District Court as a matter of fact did adapt our theory.

In the District Court opinion I believe represents the argument that we're making here.

Justice Potter Stewart: It was the Court of Appeals then adapted the theory really.

Mr. Joseph Beeler: Quite frankly, I --

Justice Potter Stewart: The Court of Appeals have concentrated on what's been called here step three.

Mr. Joseph Beeler: Quite frankly, I think the reason the Government petitioned for cert, they simply didn't like the way the Court of Appeals opinion was written.

I'm not sure that they would've folded an opinion written like the District Court's opinion, because it made clear findings of fact that Mr. Sanchez was detained after his driver's license had been returned and prior to the interrogation of his passengers.

That this violated his own Fourth Amendment rights.

And the District Court opinion talked about detention as well as a search.

And it didn't feel the semantic labels were important.

What was important was that there was an interference with the individual's own constitutional rights.

The Government appears also not to be entirely satisfied with the District Court's fact finding.

But it hasn't come out and said that “Gee, the District Court was clearly erroneous.

And these are the reasons why and here's the case law showing why?”

As a matter of fact, the record shows that the District Court agonized over the question of when the detention occurred.

And he came to the conclusion and made fully supportable fact finding that the detention of Mr. Sanchez occurred after his driver's license was returned.

And that all four, not just three were arrested when they were brought to the police station.

The Government --

Justice Lewis F. Powell: Mr. Beeler does the record show that Mr. Sanchez objected to the brief theory of detention?

Mr. Joseph Beeler: There is nothing in the record to show that he made any protest.

The record, I believe would show that he acquiesced.

However, he had submitted to a demand for proof of identity from these law enforcement officers who came up to his car.

One stationed himself at his window. One stationed himself at the other window.

Justice Potter Stewart: They're in uniform?

Mr. Joseph Beeler: They were in uniform.

They were armed.

They were carrying Chemical Mace.

It was 2:30 in the morning which cuts two ways.

The Government made no showing that it's unusual for people to be in the suburb of Villa Park looking at a map and hunting for a restaurant at that time of night.

But when two police officers come up on either side and they offer to help you find a restaurant.

Then after that, they demand some proof of identity.

And when they carry on this kind of procedure, I think it's -- it's not in the record other than that Mr. Sanchez is a Mexican-American.

But I --

Justice Lewis F. Powell: In your colloquy with Mr. Justice Stewart, reference was made to the search.

What search do you have in mind?

What do you think constituted a search?

Mr. Joseph Beeler: In addition to the detention of Mr. Sanchez, which resulted in the discovery of the witnesses, the procedure of interrogating the passengers can also be viewed as a search during the period of this detention.

They are simultaneous search and detention.

The Government conceded and the Court of Appeals once again that this would constitute a search.

I think by any standards, it is a search.

The police officers were asking question to learn things that were not in plain view.

The identity of these witnesses was in no sense in plain view anymore than the contents inside a paper bag are in plain view.

Justice Lewis F. Powell: Would it have been different as has been suggested if these four individuals had been walking down the street and had stopped and appeared to have been lost, and two officers had come up and said “May we help you?”

And in the course of the conversation, the officers asked questions for I.D. cards.

Would that be a different case?

And if so, where is the search?

Mr. Joseph Beeler: Assuming that all of the other facts would be about the same then we would assume that Mr. Sanchez was in custody.

He wasn't free to leave while his three companions were being interrogated.

That if he did attempt to leave, he would've been pursued and recaptured.

Justice Lewis F. Powell: That's a speculation, isn't it?

Mr. Joseph Beeler: Well that would make your hypothetical equivalent to the situation that we do have in this case.

The law enforcement officer made it quite clear that he was going to hold Mr. Sanchez there until this routine was completed.

But he wasn't free to drive off.

Justice Thurgood Marshall: I thought he said he wasn't free to drive off with the passengers?

Mr. Joseph Beeler: That's what Mr. Friedman says.

That's not in the record anywhere.

The record shows that if Mr. Sanchez had attempted to leave, and my question contains no reference to the passengers in the car or out of the car.

If Mr. Sanchez had attempted to leave, they would have chased after him and now I'm quoting “pulled him off again”.

I think from this kind of testimony and from the District Court's finding upon a very careful analysis.

Just -- what was going through the police officers minds?

He was in custody.

He couldn't go anywhere.

He was held under Terry versus Ohio standards.

Justice Potter Stewart: It is clear that on the other hand that I suppose that had there been no passengers and everything else had transpired as it did, he'd been approached and given his identification, there wouldn't be no question about his freedom to leave and that's your case.

That's the point of your case, isn't it?

Mr. Joseph Beeler: If there had been no passengers, he could've driven right off.

Justice Potter Stewart: And if --

Mr. Joseph Beeler: Once he proved his own identity.

Justice Potter Stewart: And that's the knob of your argument, isn't it?

Mr. Joseph Beeler: That's the knob of it.

Chief Justice Warren E. Burger: And do you think it sheds any light on the situation that the police told the two identified passengers to leave the car and come with them to the police station.

They distinguished between the two who could not supply an identification, and the two who did have identification.

Mr. Joseph Beeler: There was no testimony that they distinguished.

There was the fact that Mr. Sanchez was used to transport --

Chief Justice Warren E. Burger: Physically.

Mr. Joseph Beeler: -- one of the passengers physically.

They went on a convoy, and so it was obvious that Mr. Sanchez probably couldn't have taken off.

The District Court found that they were arrested.

The Court of Appeals found that all four of them were arrested, and the Government concedes in all their briefs.

And up until right now that they were arrested.

So, I don't think it makes much difference what cars they were put in or how the police arranged for their particular custody.

The point was that Mr. Sanchez was driving to a police station, instead of to a restaurant which was his choice.

To return, if I could just briefly to Mr. Justice Powell's hypothetical.

I think the important factor of the sidewalk situation would be a question of whether or not Mr. Sanchez would have to be detained and stay there while the police conducted their identity search to the people that he was with.

And if he was held with them either by a command or by some type of physical act of being in a situation where he couldn't get out, he was held in like he would be in a car.

Let's say he was in a dead end alley and he couldn't get out until the police were done.

By then the detention factor is the same.

In terms of a search, well it's not a search of his car in that case.

There is no car in that hypothetical.

But nonetheless, it's a Fourth Amendment violation.

And that's the central violation that we're focusing in on this case.

We believe that this case stands for the freedom of people to move on the highways without being subjected to unconstitutional violation of their freedom of travel.

Justice Thurgood Marshall: I don't want to be precisious, but he wasn't traveling.

They were parked.

Mr. Joseph Beeler: He was parked for the purpose of a brief stop in his travel to get his bearings to the restaurant he was looking for.

Justice Thurgood Marshall: But his travel wasn't interrupted by the police?

Mr. Joseph Beeler: Not initially.

But once it was detained for practical purpose that is an interruption.

Instead of ending out at the restaurant or ending up in the restaurant a little bit late, which I would consider to be an interruption of travel, it was almost inevitable.

Justice Thurgood Marshall: (Inaudible)

Mr. Joseph Beeler: Villa Park isn't such a tiny little town.

It's 25,000 to 30,000 people in a suburb west of Chicago.

One suburb is packed up against another.

I think the record in this case taken in the light most favorable to the defendant, which it must be, we're here as the appellees and as the respondent.

Justice Lewis F. Powell: Mr. Beeler, the car really wasn't just on the side of the road.

As I recall, wasn't it 20 -- 15 to 20 feet off the road in a sort of vacant area?

Mr. Joseph Beeler: Mr. Justice Powell, it was in a cut-off between North and Adison Rd., and I've obtained defendant's exhibit A which I thought had been transmitted to the Supreme Court earlier.

But when I checked with the Marshall's office, it hadn't come.

And that exhibit which is a photograph, I'm sure it will be available from the Marshal.

It shows as our brief asserts that this was a perfectly logical normal place for one to pull off the road to read a map.

The police office in the case testified as to no suspicion about where the car was parked.

There was no parking citation.

And I don't think the location of the car is any part of the case as it reaches this Court.

Justice Potter Stewart: Well, be that as it may Mr. Beeler, my understanding is that it has been up till now that you don't object to the policeman approaching the car or interrogating the driver, or asking him for his identification or checking his identification.

Am I wrong about that?

Mr. Joseph Beeler: You're right.

We felt that there's no reason to raise that.

Justice Potter Stewart: Right.

Chief Justice Warren E. Burger: Does this record show at what stage the pistol was discovered in the glove compartment.

That is it is obviously after they got to the police station.

But at what point was the search made?

Mr. Joseph Beeler: As I understand the record, after the four arrived at the police station and they were “brought inside”, which is to use the words chosen by the police officer.

Then while the interrogation was going on in the police station, there was simultaneously a search being made of Mr. Sanchez' automobile.

Evidently, it's the kind of search that would include the search of the trunk.

Except he of course had a station wagon.

Search of the glove compartment, search of any hiding area in the car.

Chief Justice Warren E. Burger: Now was that -- I don't recall that this record shows, except that what happened to it, except there's a reference to the fact that it isn't in this case.

But was there a motion to suppress that independently in another proceeding?

Mr. Joseph Beeler: There was -- it's not in the record but in direct answer to your question, represented by different counsel, Mr. Sanchez pleaded guilty to the Illinois violation of possessing a firearm without having registered it.

And he received probation and a fine for that offense.

Also, I would add for the record and it does appear on sworn from counsel and the transcript.

The firearm was a gift he had received from an uncle in Texas which he had just brought in to Illinois, and there was no opportunity to register it.

But I also agree with your suggestion that that's not part of this case as it arrives here.

Thank you.

Chief Justice Warren E. Burger: Thank you.

Do you have anything further Mr. Friedman?

Rebuttal of Paul L. Friedman

Mr. Paul L. Friedman: Just a couple of minor points, first on our concession and all of that.

I think that it's -- first of all, it's not a concession, it's an assumption for the purposes of argument and what happened as I understand it.

Justice Potter Stewart: Do you mean in the Court of Appeals?

Mr. Paul L. Friedman: In the Court of Appeals which we don't feel bound by here is, the District Court reached a conclusion that the interrogation was a search.

And so for purposes of argument we said “Let's assume that it was a search.

Now let's go on and talk about whether it was reasonable or not.”

Justice Potter Stewart: Let's further assume that the respondent has standing to it.

Mr. Paul L. Friedman: Has standing at that point if it were a search.

The Court of Appeals didn't discuss step two, they went to step three.

Well, now we're talking about step three and that assumption has nothing to do with step three, and should this Court want to take a look at step two, we don't feel bound by that assumption.

We feel free to argue that the conduct was reasonable, that there was no standing.

That live witnesses are different from physical evidence and so on.

Chief Justice Warren E. Burger: Now first if we agree with Mr. Beeler that's the end of this case.

Mr. Paul L. Friedman: That's the end of the case.

Chief Justice Warren E. Burger: But if we agree with you, it's got to go back, doesn't it?

Mr. Paul L. Friedman: It's got to go back either with this Court looking at some of those other aspects or asking -- telling the Court of Appeals to look at some of those other aspects.

Chief Justice Warren E. Burger: To clarify some?

Mr. Paul L. Friedman: To clarify what went on, on that second stage.

In response to Mr. Justice Marshall's question a little while ago about, didn't the officer testify but he only took him down because passengers were still with them?

Well the question by Mr. Beeler in page 63 of the appendix was not what you would've done with the respondent at any stage.

But he said “Back at North and Adison, after you and Officer Hall had gone over to the defendant's car and after Officer Hall had asked the defendant for an I.D., and after the defendant had produced his driver's license, and after Officer Hall had returned the driver's license.

What would you and Officer Hall had done if the defendant then drove off immediately in his car without asking your permission?”

So we think that the officer's answered that he would've given chase is perfectly consistent with his later testimony that later on would've let the defendant -- the respondent go once he had had those passengers and once he was beginning to find out something about the passengers.

The point is, so long as the passengers were with him and he hadn't checked them out, he was stopping to get those passengers.

But the respondent was not being detained for any purposes directed at the respondent.

Justice Thurgood Marshall: If you agree that the respondent from the time he was first stopped until the time they got into the police station and felt that he was sort of --

Mr. Paul L. Friedman: Well --

Justice Thurgood Marshall: I mean, for example, he said “Will you come along with us.”

He said “Yes.”

Mr. Paul L. Friedman: He said “Fine, I'll come along.”

Justice Thurgood Marshall: Well I know what you do if 2:30 in the morning when a policeman armed says “Would you mind coming along?”

Mr. Paul L. Friedman: Well it's also 2:30 in the morning when you're looking for a restaurant and the police come over and they don't say “You're coming with us.”

They come over and say “Can we help you find the restaurant?

What seems to be the trouble?”

Justice Thurgood Marshall: -- after that I mean.

Mr. Paul L. Friedman: Well, I think frankly that you have to look at it step by step.

And --

Justice William J. Brennan: And then what you would've done under this circumstance?

Mr. Paul L. Friedman: What I would've done --

Justice William J. Brennan: Would you have gone along?

Mr. Paul L. Friedman: Under the circumstances, I probably would've felt that there was no reason not to go along.

Justice Potter Stewart: If you --

Mr. Paul L. Friedman: But that doesn't make it an arrest.

That doesn't make it an arrest.

And I'm reminded, mainly because I have it written in front of me here, a concurring opinion by Judge Levanthol at one point.

Where he said “In a walking up and asking questions in a case called Bailey versus United States, is not an arrest.

While most people might feel they are not free to go.

But the difficult question is whether in the face of a specific refusal to answer questions or a specific request to go, would there then have become an arrest?”

Here there was no specific refusal, no specific request to go.

And in this case ought not to --

Justice Thurgood Marshall: Well, the two men in the back seat, were they under arrest at that time?

Mr. Paul L. Friedman: They were being detained at that time.

Whether they were being detained on reasonable suspicion or being arrested on probable cause is --

Justice Thurgood Marshall: So you really don't know what the arrest --

Mr. Paul L. Friedman: -- arguable.

Justice Thurgood Marshall: You don't know when either one of them was arrested?

Mr. Paul L. Friedman: Well, I think that you can view the facts on two different ways in regard of the passengers.

Either they were being detained --

Justice Thurgood Marshall: (Voice overlap) you take two men and put them in a car with the policeman and take them to the police station.

Mr. Paul L. Friedman: Okay, let's say it's an --

Justice Thurgood Marshall: You take another mind and said “Would you mind coming along?”

And he says “Yes.”

Aren't all of them the same position to being detained?

Mr. Paul L. Friedman: I don't think they're all in the same position.

Justice Thurgood Marshall: That is one difference.

The last one, he said “Come along.”

If he turns and run, he gets shot.

He finds out.

Mr. Paul L. Friedman: Well there's no evidence of anything like that in the setting Mr. Justice Marshall.

Justice Thurgood Marshall: I know.

I know.

But I mean letting it feel that --

Mr. Paul L. Friedman: I think that what happened --

Justice Thurgood Marshall: -- the policeman says “Would you mind coming along?”

Mr. Paul L. Friedman: Would you mind coming along is different from getting in the back of a squad car.

And I think that what's happened here --

Justice Thurgood Marshall: Indeed it wouldn't be any different.

Mr. Paul L. Friedman: Pardon me?

Justice Thurgood Marshall: What to be wouldn't be any different.

Mr. Paul L. Friedman: I think it depends how it's said.

I think it depends what's gone before.

Justice Thurgood Marshall: Yes, well we don't know how it was said.

Mr. Paul L. Friedman: We know what went before.

They went over to do some of assistance.

Justice Thurgood Marshall: -- said, because we don't have the -- we weren't there.

Mr. Paul L. Friedman: But we -- there was un-contradicted -- testimony from the officer.

The defendant never took the stand as he could've and said “I felt restrained.

I felt detained.

I knew I couldn't go.”

He never said any of that. He --

Justice Byron R. White: (Inaudible)

Mr. Paul L. Friedman: Well, he's free to take the stand to the suppression hearing without incriminating himself on way that can be used against him later on the trial.

He's free to tell his side of the story in support of his motion to suppress and he didn't do it.

Now, all I'm saying is that the evidence before the Court and the evidence in the transcript here is un-contradicted.

And if you look at it step by step, it's reasonable.

Now respondent talks about dragnet procedures, this case isn't about dragnet procedures.

If you look at what the police did step by step, we submit their conduct was reasonable.

We don't have to get to that question, but we submit that their conduct was reasonable, because it's a --

Chief Justice Warren E. Burger: What case was it in this Court that held that the stop and frisk, and the patting down, the searching could be done without constituting an arrest?

Justice Potter Stewart: Adams.

Mr. Paul L. Friedman: Adams versus Williams.

Chief Justice Warren E. Burger: Well doesn't that resolve some of the questions that were --

Mr. Paul L. Friedman: Well I think it certainly does, because there was some articulable reason at some point to ask them some questions.

And after that there was some articulable reason to try to find out who they work further.

Just to detain them -- to determine their identity.

That's all that this case is about.

Now Justice White asked a question a little while ago about are there any cases where the courts have said you can ask passengers in a car for identification.

One case that I know of is a case called United States versus Madenville, 445 F.2d, 822, a Ninth Circuit case.

But the -- and that makes a point it's okay to ask identity of people in the car as well.

Let me just make two other points.

Respondent argues concerning live witness and says that the Smith and Bowden case written by the Chief Justice, talked about all the intervening things and so on.

We think that the Chief Justice's concurring opinion in Roger-Brown makes clear that what was being discussed there was you don't suppress live witnesses.

Cross-examination is sufficient to protect people's rights.

It goes to weight in that admissibility, whether depending upon how they were seized, how they were come in.

We also think that this case is different from the case if they had gone into a trunk and found witnesses in a trunk.

These witnesses were not come at by any search or any illegality.

They were there in plain view, and they were not the result of any sort of a search.

And even looking at respondent's argument at its most favorable light, he says that if he had been permitted to drive on after showing his license, the police would've obtained no evidence against him.

And that that's what this case is all about.

If he had been permitted to drive on, we say everything else would've been just the same as it is here.

The passengers would've been detained.

The evidence flowed from them, had nothing to do with his detention.

And we think if you get to stage two that that may be relevant.

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

Thank you Mr. Beeler.

Mr. Beeler, you came here at the request of the Court and by the Court's appointment to represent Mr. Sanchez.

In behalf of the Court, I want to thank you for your assistance to us and of course to Mr. Sanchez.

The case is submitted.