STONE v. POWELL

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Argument of Robert R. Granucci

Chief Justice Warren E. Burger: We will hear arguments next in 1055, Stone against Powell.

Mr. Granucci, you may proceed whenever you are ready.

Mr. Robert R. Granucci: Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to review a decision of the Court of Appeals for the Ninth Circuit which in effect orders the setting aside of Respondents, California conviction of second-degree murder.

The murder took place in San Bernardino, late in the evening of February 17, 1968.

Respondent Lloyd Charles Powell with three companions entered a liquor store owned by Gerald and Mary Parsons.

While one of the group was making a small purchase, respondent was observed in the act of shoplifting a half gallon of wine.

He struck Mr. Parsons in the mouth with his fist, a fighting shoot.

During the struggle, respondent took Mr. Parsons’ revolver from in and fired two shots.

The first struck Mr. Parsons in the arm wounding him.

The second struck Mrs. Parsons just below the neck, punctured her lung and resulted in her death the following morning.

The Town of Henderson, Nevada is located approximately 180-airline miles Northeast of San Bernardino and 8 miles Southeast of Las Vegas.

Shortly after 10 a.m. on the morning after the shooting, Henderson Police Officer Edward Lauten(ph) while on routine patrol observed two men walking across the parking lot of a shopping center.

One of the two was the respondent.

Unknown Speaker: What time of day or night?

Mr. Robert R. Granucci: Approximately 10 a.m. in the morning your Honor.

As soon as the two saw the police car, they turned about and started rapidly in the direction they had been coming from.

When officer Lauten(ph) made a U-turn and started to approach them, the two split up.

Officer Lauten(ph) honked his horn.

Respondent kept walking rapidly towards the rear of the department store.

Finally, Officer Lauten(ph) got out and ordered respondent to stop.

Officer Lauten(ph) asked respondent for some identification.

He replied that his identification papers had been stolen.

He did give the officer his name and date of birth.

The officer then radioed for a warrant’s check which came back negative.

Respondent told the officer he had been staying with friends in Las Vegas for the past few days but he did not give their names and he did not know their address.

He stated that he was on his way to Michigan.

The officer also tended to disbelieve this because the most direct route from Las Vegas to Points East does not pass through Henderson.

A local ordinance makes it a misdemeanor for a person to loiter without apparent reason or business, and to refuse to identify himself and to account for his presence when asked by a peace officer to do so.

When the surrounding circumstances would indicate to a reasonable man that the public safety demand such identification.

Officer Lauten(ph) arrested respondent for violating that ordinance.

A search incident to the arrest turned up the murder weapon.

Unknown Speaker: On this person?

Mr. Robert R. Granucci: On this person, your Honor.

The respondent’s trial in June 1968 in the San Bernardino County Superior Court, the revolver was admitted into evidence after the trial judge had heard and denied respondent’s motion to suppress it as the product of an illegal search.

The jury subsequently found respondent guilty of second-degree murder.

Respondent appealed his conviction.

One of his contentions was that his arrest and the incidental search were illegal because the Henderson Vagrancy Ordinance was unconstitutional.

In October 1969, the California Court of Appeal affirmed the conviction holding it was not necessary to reach the merits of the search point because admission of the revolver into evidence, even if it were error would not have affected the verdict.

Respondent did not seek a hearing in the California Supreme Court.

However, he did subsequently apply to that court for a writ of habeas corpus and his petition was denied.

In August 1971, state remedies having been exhausted.

Respondent filed an amended petition for a writ of habeas corpus in the United States District Court for the Northern District of California.

That court issued an order to show cause.

After receiving briefs and examining the record of the state trial, the District Court denied the writ in February 1972.

Significantly, in its order denying the writ, the District Court declared the purpose of the exclusionary rule would not be advanced by ex post facto condemnation of an arrest which was apparently valid when made.

And the facts developed at petitioner’s trial show that the arresting officer had probable cause to believe that he had observed the petitioner violate the ordinance.On December 4, 1974, the Ninth Circuit Court of Appeals reversed.

Ostensibly, directing further proceedings in conformity with this opinion but actually ordering the writ granted and petitioner released.

Excuse me your Honor, respondent released.

Its opinion, a triumph of logic over justice reasoned as follows.

Under proper crystal, the city of Jacksonville, the Henderson Vagrancy Ordinance is unconstitutional.

Therefore respondent’s arrest was illegal.

Therefore the revolver found in the incidental search was illegally obtained evidence.

Second, that the arresting officer acted reasonably and in good faith as of no moment.

Application of the exclusionary rule in this case is appropriate to preserve judicial integrity and to deter legislative bodies from enacting unconstitutional statutes.

Admission of the revolver was not harmless error, therefore, respondents; California murder conviction must be set aside.

Thus, the question before this court in this case is—

Unknown Speaker: Was he ever charged?

In doing this arrest was he charged of possession of weapon?

Mr. Robert R. Granucci: Your Honor that does not appear in the record below.

I think it is safe to assume that when the officer found the revolver in the incidental search, he forgot all about the Vagrancy Ordinance and continued to process and book respondent for the more serious charge of carrying a concealed weapon.

But that is simply an assumption I make.

There are questions before this court though—

Unknown Speaker: Within your argument, can I ask another fact question?

Mr. Robert R. Granucci: Yes, your Honor.

Unknown Speaker: The respondent is now on parole as I understand it.

Mr. Robert R. Granucci: Yes.

Unknown Speaker: Can you tell us at what point in the state proceedings he began the service sentences after the conviction of the Trial Court or is it normally true in California they were to leave PIL process as exhausted?

Mr. Robert R. Granucci: No, your Honor although a defendant in California is in entitled to move for bail pending appeal.

The granting of that motion is just discretionary and ordinarily a defendant sentence for murder begins to serve his sentence as soon as the judgment is pronounced in the Trial Court.

Unknown Speaker: And that is what happened here?

Mr. Robert R. Granucci: Yes, your honor.

The question for decision is whether a California murderer is to go free on Federal habeas corpus because he was arrested under a Nevada Ordinance which may have violated a decision of this court handed down two years after the conviction became final, four years after the arrest and more significantly more than four years after the ordinance was adapted.

The question specified by this court in its order granting review namely whether in light of the fact that Officer Lauten(ph) had probable cause to arrest respondent for violation of an ordinance which at that time had not been authoritatively declared unconstitutional.

Respondents claim based on the search incident of that arrest is one cognizable on Federal habeas corpus, invites a preliminary inquiry that is even more fundamental, that is, whether Fourth Amendment claims of state prisoners should be cognizable at all in such proceedings.

We raised this very question in Schneckloth versus Bustamante and Justice Powell treated it in his concurring opinion.

Today we ask the court to adopt Justice Powell’s analysis.

Rather than simply restating the basic argument presented in that case, that the cost to society involved in re-litigating Fourth Amendment claims on Federal habeas corpus outweigh any benefits to be gained thereby, we present an additional consideration.

Unknown Speaker: I understand you said re-litigating?

Mr. Robert R. Granucci: Re-litigate your Honor.

Unknown Speaker: Well, what about if it has never been litigated?

Mr. Robert R. Granucci: Then, your Honor, the petitioner would be faced with two inquiries that were even more fundamental and would be dispositive, whether he had failed to exhaust state remedies or whether he had bypassed procedure in the state court.

Unknown Speaker: I just want to ask you, do you want the habeas corpus statute now construed to exclude from the power of the Federal Court,Fourth Amendment claims that have never been litigated in the state court?

Mr. Robert R. Granucci: Yes, your Honor.

Where there has been a fair procedure available to litigate.

Unknown Speaker: where he had the opportunity?

Mr. Robert R. Granucci: Where he had the opportunity.

Unknown Speaker: Well, supposed there were some new information.

Assuming he was denied counsel, illegally?

Mr. Robert R. Granucci: And could not litigate the claim for that reason?

Unknown Speaker: Well, let us assume he is excused on some matter for not having raised the claim of the state court?

Mr. Robert R. Granucci: Our position is such claims should not be available at all.

A denial of counsel would work—

Unknown Speaker: Do not talk about re-litigation, just say litigation.

Mr. Robert R. Granucci: Litigated.

I will accept that.

Unknown Speaker: It should not be open for consideration.

Mr. Robert R. Granucci: It should not be cognizable, open for consideration.

Justice William H. Rehnquist: But that sure is for denial of counsel—

Mr. Robert R. Granucci: That is a personal due process right available to a defendant by its own force.

Unknown Speaker: Whatever would be the Fourth Amendment claim?

Mr. Robert R. Granucci: No, your Honor.

But habeas corpus—

Unknown Speaker: Are you saying that petition should not be open in the Federal Court if there is no state procedure for even raising the question in the State Court, do you?

Is your whole case premised on the availability of the state procedure where it could be provided?

Mr. Robert R. Granucci: Where the state provides an adequate procedure for the vindication of these claims, they should not be available on federal habeas corpus.

Habeas Corpus is a remedy for the vindication of personal rights.

This is clear from Fay v. Noia which says today’s habeas corpus provides a mode for the redress of denials of due process of law.

Unknown Speaker: But supposed the state has a good procedure but the judge -- State Supreme Court makes errors.

Let assume it denies him cross-examination in the suppression hearing in a manner that is plainly erroneous.

Now, the hearing is flawed, let us assume that it is flawed and everybody would concede it was flawed; you would still say that the Federal Habeas Court is close to him or open?

Mr. Robert R. Granucci: That would be a due process error that occurred during a state proceeding.

That claim of denial of cross-examination on a material issue in the State Court.

Unknown Speaker: Well, then what do you about it?

You entertain it in the Federal Court, but you will not reach the Fourth Amendment claim?

Mr. Robert R. Granucci: I think the proper remedy, your Honor, would be to send it back for another suppression hearing in the State Court where he would have his right to cross-examination.

Unknown Speaker: But your claim in that case I suppose in the Federal Habeas Corpus Court would be a denial of the right of confrontation?

Unknown Speaker: A due process?

Mr. Robert R. Granucci: Precisely.

Unknown Speaker: (Inaudible) in terms of time frame?

Mr. Robert R. Granucci: I think, I think that such claims ought to be promptly raised.

There should not be a bypass of state remedies.

There should be exhaustion.

Chief Justice Warren E. Burger: In other words, something on the nature of a Doctrine of Laches should be applied in the criminal area?

Mr. Robert R. Granucci: I think so Mr. Chief Justice.

In Fay v. Noia, this court said vindication of due process is precisely the historic office of the writ of habeas corpus.

But the historic office of the exclusionary rule on the other hand is entirely different.

This court has thoroughly discredited the notion that the defendant has a personal right to the exclusion of evidence.

In United States v. Calandra and United States v. Peltier, the court has stated that the exclusionary rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect rather than a personal constitutional right of the party agreed.

The exclusionary rule furthers a general societal interest rather than a personal right.

Chief Justice Warren E. Burger: Those terms are more like supervisory power than constitutional, do they not?

There is no personal constitutional right than the only other reach of this court or the Federal Court would be under supervisory power or is there third alternative?

Mr. Robert R. Granucci: I think the decisions of this court up to this point have tended to blur the notions of constitutional rights and personal rights.

Chief Justice Warren E. Burger: Just taking the language that you were reciting yesterday, that language is not comporting more with supervisory power than it does with defining an individual personal right?

Mr. Robert R. Granucci: I think so.

I think so, although the theory of Mapp v. Ohio as I understand it is this.

The constitution requires an exclusionary rule that can be asserted at trial in order to discourage the police from making unlawful searches.

Chief Justice Warren E. Burger: Certainly, this court has no authority other than the constitution for imposing the exclusionary rule on the states?

Mr. Robert R. Granucci: That is correct your Honor.

Unknown Speaker: Not necessarily had to hold that the exclusionary rule was constitutionally required?

Mr. Robert R. Granucci: Yes, the fact that it is constitutionally required does not mean that it must be applied at all stages.

It does not mean that it is required on collateral attack.

I think this is clear from United States versus Calandra.

John Calandra’s rights were arguably violated by an illegal search.

But the violation of that constitutional right did not necessarily mean that he had a personal right to assert the exclusionary rule at all stages of the proceedings.

In determining whether Mr. Calandra was entitled to make a suppression motion to challenge evidence which was being considered by the grand jury and which was being used to formulate questions asked to him.

This court balanced the negative impact of allowing suppression there in the form of an undue interference with the functioning of the grand jury against any positive effects that application of the rule would have in further deterring unlawful searches keeping in mind that the evidence would be inadmissible at trial.

Chief Justice Warren E. Burger: The one you were quoting earlier came from Calandra not Mapp against Ohio?

Mr. Robert R. Granucci: That is correct, your Honor.

It came from Calandra and it was quoted in Peltier.

Of course the disadvantages of allowing state prisoners to raise Fourth Amendment claims on federal habeas corpus have been recounted before.

I simply touch on them.

This practice Texas cares judicial and prosecutorial resources.

It causes frictions between the Federal and State Courts whose decisions are second-guessed.

It undermines public confidence in the administration of justice by the litigation of matters years after the fact that bear no relationship to the guilt or innocence of the defendant.

And it is totally inconsistent with any idea of rehabilitating criminal offenders.

In the words of Professor Paul Butler, the idea of just condemnation lies at the heart of the criminal law and we should not likely create processes which implicitly belie its possibility.

At this point, it may be suggested that we have proved too much that the disadvantages of Collateral attack are so great that no constitutional right should be available once a conviction has become final as a basis for habeas corpus.

However, where personal rights are involved balancing is inappropriate.

But where a societal right is involved and where a defendant has no personal right to the exclusion of evidence then he should be permitted to invoke the rule only where it will actually serve to deter on lawful searches and seizures.

Unknown Speaker: You are not suggesting, are you Mr. Granucci that the Fourth Amendment rights themselves are some sort of second class non-personal rights?

Mr. Robert R. Granucci: No, I think history would argue exactly to the contrary.

Unknown Speaker: But by the very terms, the Fourth Amendment confers a right upon each of us to be secure and he is a person, his house, and his effects from unreasonable searches and seizures.

Mr. Robert R. Granucci: That is right.

Unknown Speaker: It can be nothing more personal.

Mr. Robert R. Granucci: That is right.

But your Honor, Mr. Calandra’s rights were violated by that search.

But that did not necessarily mean he had the right to make a suppression motion.

The exclusionary rule is simply a judicially created doctrine to further the protection against unreasonable searches and seizures.

Unknown Speaker: (Inaudible)

Mr. Robert R. Granucci: If it has been exerted prior to trial, the right is not completely violated until either the confession or its fruits are admitted in the trial.

Remember the Fifth Amendment is about testimonial consumption.

Unknown Speaker: (Inaudible)

Mr. Robert R. Granucci: Yes, but the defendant has no personal right to the suppression of evidence.

It is not what the defendant feels.

It is the remedy that the court makes available.

Unknown Speaker: Would that not apply the same rule to compel the self-incrimination issues where the compulsion is then exerted prior to trial to secure a statement?

Mr. Robert R. Granucci: Yes, that right is not violated so until the evidence is admitted at trial because the Fifth Amendment is uniquely a trial right.

Chief Justice Warren E. Burger: (Inaudible) between a systemic rule that is for the benefit of the system as distinguished from the doctrine or rule that is for the benefit of the particular individual.

Mr. Robert R. Granucci: That is correct your Honor.

Chief Justice Warren E. Burger: I take it that is what you meant by using the term societal.

Mr. Robert R. Granucci: Societal and systemic, I think mean the same thing.

Unknown Speaker: I wonder if you are right, you are suggesting that if the police extort a confession from an individual brutally and do not admit it in the trial as evidence, that individual would have no 1983 remedy against the police?

Mr. Robert R. Granucci: No.

Unknown Speaker: Well, then his right has been violated before the confession is introduced in trial.

I do not understand your distinction.

Chief Justice Warren E. Burger: Does that not go to the reliability and trustworthiness of the confession as distinguished from no challenge to the reliability or trustworthiness of the pistol found in the pocket of this man?

Mr. Robert R. Granucci: Well, that is one distinction that has been drawn between statements and physical evidence.

But I think the question of Mr. Justice Stevens go somewhat deeper.

The question assumes and I would agree that the defendant who was injured by officers I think under Colorado State Law would have a right.

He would also have a right if he was simply the victim of the search for a damage action assuming that the defenses of good faith and other related defenses were not present.

But he has no personal right to the exclusion of that evidence.

The exclusionary --

Justice Thurgood Marshall: Would it maintain a civil suit from the jail so would it be not?

Mr. Robert R. Granucci: I do not know your Honor.

There are many attorneys who would—

Unknown Speaker: The 1983 suit from the jail?

Mr. Robert R. Granucci: Probably by retaining counsel.

Unknown Speaker: He can maintain it when and if he is free.

Mr. Robert R. Granucci: Yes, of course.

Now it well may be—

Justice Thurgood Marshall: Statute limitations as well.

Mr. Robert R. Granucci: Yes.

Now, it well may be that the court is unwilling totally to eliminate the cognizance of Fourth Amendment claims on federal habeas corpus.

If so, the facts of this case suggest a principle by which habeas corpus jurisdiction could be limited to those instances where its availability might actually serve the purposes of the exclusionary rule.

We suggest the following limiting principle.

A search made in reasonable and good faith for reliance upon a coordinate branch of government should not be cognizable on federal habeas corpus.

Up to now, we have argued that exclusionary rule should not be applied on collateral attack because the cost in applying it far outweigh any minimal effect it might have --

Unknown Speaker: In fact, intentional, knowing violation it would be excluded, is that the line you are drawing?

Mr. Robert R. Granucci: I am drawing a line on federal habeas review.

Unknown Speaker: Right.

Mr. Robert R. Granucci: If the court made a federal habeas review, yes.

Justice William J. Brennan: Of a knowing violation of the Fourth Amendment to have excluded?

Mr. Robert R. Granucci: This is essentially a fall back position your Honor.

In other words, if the court is not prepared totally to overrule Kaufman and the related cases, then it can limit review to those cases in which the deterrent purpose of the rule is actually served.

Unknown Speaker: That is where there is an allegation that the illegal search was known and unintentional?

Mr. Robert R. Granucci: Yes.

Chief Justice Warren E. Burger: Is this something on the lines of the English rule that only flagrant violations would be the subject of an exclusion?

Mr. Robert R. Granucci: I think so your Honor, although I am not sufficiently prepared on that point to speak with any great degree of confidence.

You see when an officer has made an arrest or a search in reasonable and good faith reliance on the action of a coordinate branch of government, in this case, the town counsel which adapted the Vagrancy Ordinance and for example in the previous case, the magistrate who issued the search warrant, his action is commendable.

It should not be deterred at all.

In terms of influencing police conduct, application of the exclusionary rule in the setting where the officer has reasonably relied on a coordinate branch of government is actually contra-productive because to effect that it influences police conduct at all, it invites officers to speculate about the constitutionality of the statutes and laws they are sworn to enforce or search warrants, they are directed to execute.

The Ninth Circuit based its decision on judicial integrity.

We note only the judicial integrity was irrationally articulated by this court in the exercise of its supervisory authority over the lower Federal Courts.

And it has been assimilated into the deterrent rationale.

This is clear from United States v. Peltier.

It is inappropriate to apply the exclusionary rule for the state of purpose of deterring legislature from enacting invalid statutes because the very word “deter” assumes that legislatures act in bad faith.

This is contrary to the basic principles of democratic government.

Unknown Speaker: Your argument really all it is directed to the point that was isolated in your colloquy with my brother Brennan, really the arguments you are making now is equally the effect that there was no Fourth Amendment violation in this case, is it not?

Mr. Robert R. Granucci: Yes, that raises a question of characterization, if you say the Fourth Amendment only is into prohibiting unreasonable searches. I think we can leave room for a reasonable mistake of law.

Reasonable good faith mistake of law, Just as in Hill v. California—

Unknown Speaker: That an arrest made under a statute or in this case an ordinance that was validly passed by a city council and the municipality in the State of Nevada which would have never been held to be invalid and that a search incident to that arrest was a perfectly valid search and no violation of the Fourth or Fourteenth Amendment whatsoever and if that is true then none of these other questions arise.

Mr. Robert R. Granucci: That is right.

We think it is quite proper to correct to characterize as a totally reasonable search.

On the other hand, if it is a violation of the Fourth Amendment, to make an arrest or search which is unauthorized by an ex post facto application of an invalidating decision then it is only a technical violation.

And applying the exclusionary rule on habeas corpus is meaningless.

You see in this case, what the Ninth Circuit did was free a California murderer simply to censure the town counsel of Henderson, Nevada for its alleged legislative misjudgment.

This was a gross abuse of federalism, an intolerable miscarriage of justice and it cannot be allowed to stand.

And I would like to reserve what remains of my time.

Chief Justice Warren E. Burger: And also have any effect to deterring police officer in this town in Nevada from enforcing the dubious ordinance?

Mr. Robert R. Granucci: Well, we are advised that in the Town of Henderson, Nevada they are no longer making arrest under the Vagrancy Ordinance but again, why punish California?

Why set aside this conviction?

It does not serve the purposes of the exclusionary rule.

Chief Justice Warren E. Burger: Peterson?

Argument of Robert W. Peterson

Mr. Robert W. Peterson: Mr. Chief Justice and may it please the court.

Mr. Powell was walking in an open shopping center in Henderson, Nevada on February 18th , 1968 when he was approached by a Henderson Nevada police officer, asked a few questions and then arrested under the Henderson Nevada Ordinance.

That arrest was unreasonable.

It was unreasonable in the Fourth Amendment Constitutional sense for a number of reasons.

It was unreasonable because the police officer did not have probable cause to believe that he had violated the ordinance and it was also unreasonable because—

Unknown Speaker: because the ordinance is here is (Inaudible)

Mr. Robert W. Peterson: Yes, it is a—

Justice William J. Brennan: Just this brief?

Mr. Robert W. Peterson: I think it is in all the briefs in a number of different places.

Chief Justice Warren E. Burger: Do you say that the police officer should reasonably have known that this was unconstitutional ordinance?

Mr. Robert W. Peterson: I think so.

I do not concede for a moment.

Unknown Speaker: I thought the argument you were just making assume that the ordinance was constitutional but nevertheless, there is no probable cause?

Mr. Robert W. Peterson: Nevertheless, I think that is exactly true.

Justice William J. Brennan: That is what lies on the ground on which the judgment we are reviewing rested?

Mr. Robert W. Peterson: It is not on that ground simply because the Ninth Circuit did not reach that ground.

Unknown Speaker: Do we independently reach a factual matter like that if it had not been passed on by the lower court?

Mr. Robert W. Peterson: Well, I suppose it might be appropriate if you were to decide that it is constitutional to arrest someone under an ordinance that authorizes unreasonable searches and seizures that this case would have to be sent back to the Ninth Circuit.

Unknown Speaker: Yes, but that does not get rid of the issue we have here.

Mr. Robert W. Peterson: No, it does not get rid of the issue that we have here and that is why I am going to the going on to the ordinance.

Unknown Speaker: It (Inaudible) that the Ninth Circuit rested on?

Mr. Robert W. Peterson: I do not think so.

I think, for example that you might well decide do dispose off this case on the probable cause grounds in order to avoid deciding a constitution issue because the probable cause grounds is the narrower ground.

Unknown Speaker: That is a constitutional issue.

Mr. Robert W. Peterson: I mean, the constitutionality of the state law.

Justice Thurgood Marshall: In this case and the Terry case.

Mr. Robert W. Peterson: This case is worse than the Terry case.

Justice Thurgood Marshall: The case I understand, the facts are given that when the police approached him he run?

Mr. Robert W. Peterson: In the Terry case?

Justice Thurgood Marshall: No, in this case.

Mr. Robert W. Peterson: No, he did not run.

When the police approached him he was walking, walking according to the officer at a quick pace.

Unknown Speaker: But Mr. Granucci said, He said that he was hurrying.

Mr. Robert W. Peterson: He was walking quickly, that is the way the police officer characterized it.

Justice Thurgood Marshall: Correct me, he is going this way and then he turns around to see the police officer and he walks quickly the other way?

Mr. Robert W. Peterson: Yes, quickly in a shopping center towards one of the department stores.

Justice Thurgood Marshall: Department stores?

Mr. Robert W. Peterson: That is right.

Justice Thurgood Marshall: And you know what happened in Terry?

Terry was grocery store three times and this is once.

Mr. Robert W. Peterson: I believe it is either Terry or Supron, I forgot which one where the person walked back and forth in front of the stores, some 25 times.

Yes, some 25 times back and forth looking like he was gazing the store, a number of times in that case.

Justice Thurgood Marshall: When he walked away, well did the police now have the right to stop him?

Mr. Robert W. Peterson: I do not think the police officer in this case did have the right.

But for the purpose of argument, I would concede that the way he was walking would authorize the police officer to make a limited Terry staff.

Justice Thurgood Marshall: Would he have the right to frisk him?

Mr. Robert W. Peterson: No, he would not have a right to frisk him, because Terry requires before you can frisk him that you have some founded suspicion that he is armed and this police officer did not have any founded suspicion, he had none whatsoever.

And indeed, the Attorney General has never argued that there was grounds for frisk.

He did have a gun but there was no reason for the officer to believe that.

Chief Justice Warren E. Burger: There was a founded suspicion in Terry, Mr. Peterson?

Mr. Robert W. Peterson: The appearance of casing a place for possible robbery.

Chief Justice Warren E. Burger: Does that have to do with the likelihood or non-likelihood of his having a pistol in his pocket?

Mr. Robert W. Peterson: Well, that is the way robberies are usually committed.

Unknown Speaker: Would it that not be a ground, in Terry permitting that frisk was to self-protection of the officer while he detained him for a question?

Mr. Robert W. Peterson: When he thought that the individual might have had a gun.

I do not think that you can frisk every person that you can stop under Terry.

I am sure this court has never held that.

I think that would be wrong.

But in this case --

Justice Thurgood Marshall: But it did not say that, Terry said when he stopped him he had the right to frisk him once he stopped.

Mr. Robert W. Peterson: Every case there is a right to stop, there is a right to a frisk?

Justice Thurgood Marshall: So you say in that case, when he stopped him, he had the right to frisk him for his own protection that is what Terry is?

Mr. Robert W. Peterson: I think because in that case, the reasonable suspicion that the officer had was that this person was about to commit a robbery or something which normally includes a gun or some kind of weapon?

Chief Justice Warren E. Burger: In generalization, it is probably and equally good generalization that some of these gentleman needs an activity where he carefully avoids carrying a gun in order to avoid a higher degree of crime.

I suggest that this second generalization, hypothetical is just as valid as yours.

Neither one of them very valid.

Mr. Robert W. Peterson: Neither one very valid.

Well, I think in this case the Ninth Circuit was correct when they pointed out in the case that the Attorney General makes no suggestion that there was a right to a Terry type frisk because there was no suspicion at all that this person was armed from whatever source that suspicion might come from.

It just was not there.

They just saw someone walking in a shopping center and thought that that was a suspicious person.

In any event, the ordinance in this case under which he was arrested itself authorizes unreasonable searches and seizures because the ordinance allows a full custodial arrest for what under Terry at the most would be a brief detention and if there was reasonably, there was a gun, a frisk.

In this case, not only can he be arrested but he can also be prosecuted simply for being a suspicious person.

It also was unreasonable arrest under the ordinance because the ordinance was not clear enough to advise either the police officer or someone who is trying to hue his conduct to the standards of the ordinance of what the prescribed conduct is.

There are other violations of this ordinance.

The ordinance is also unconstitutional because it violates the Fifth Amendment.

The ordinance makes it a crime in this case for someone to refuse to a suspect, a criminal suspect to refuse to give a narrative account to an investigating police officer of his conduct.

I think that is a gross violation of the Fifth Amendment.

The attorney general in this case argues that the police officer acted in good faith when he arrested under this ordinance and I would suggest that if good faith were the standard at the time that this arrest was made, this could not have been made in good faith because if either Officer Lauten(ph) or the Henderson, Nevada City Council had bothered to take a look at the law as it existed at that time.

They would have found cases beginning with Boyd in 1886 and certainly they would have found the Miranda case which requires a police officer to advise someone that he has a right to remain silent and he would have found Davis versus Mississippi.

A case in which this court said, that while a police officer may ask questions about unsolved crimes, he has no right to compel answers.

Those cases were both on the books at the time that this arrest was made and I fail to see how a police officer who on a daily basis advises people of the Miranda rights could possibly believe in the constitutionality of an ordinance that made it a crime to refuse to answer the police officer’s questions.

The Vagueness Doctrine was hardly a novel one in 1968.

Many of the cases of this court at that time were vulnerable.

There is a Lanzetta case, the Cox case—

Chief Justice Warren E. Burger: Say that the refusal to answer the questions may be considered by a court and by the policeman in the first incident and whether or not he should make a search?

Mr. Robert W. Peterson: And whether or not he should make a search, I think that that would be attaching a penalty to the exercise of the Fifth Amendment right—

Unknown Speaker: (Inaudible) some disabilities to Mr. Terry?

Mr. Robert W. Peterson: I do not think for his refusal to answer questions?

I think that Mr. Justice White’s concurrence in that case made it clear that the officer has no right to compel answers and may not consider the refusal to answer.

As part of the basis for the probable cause, that attaches an undue penalty on the exercise of your constitutional right not to incriminate yourself.

Chief Justice Warren E. Burger: Even 20 times is just presumably in prima facie as much of the constitutional right as refusing to answer the question that you pose it.

Mr. Robert W. Peterson: Or perhaps walking up and down with an apparent plan to rob a place is not a constitutional right.

Chief Justice Warren E. Burger: But Terry did not conceive in any sense that his conduct gave the appearance of the possible commission of the crime?

Mr. Robert W. Peterson: Oh, I think Terry did.

Chief Justice Warren E. Burger: Speaking of the defendant himself, Mr. Terry, the opinion however the court drew some inferences and said that this was enough to warrant a cautious and prudent policeman to take some steps including a complete search of the man.

Mr. Robert W. Peterson: Because his conduct was consistent, I think this was the proper reading of Terry, consistent with the possibility that he was armed.

I do not think that every police officer who has a right to stop someone has a right to frisk him.

I do not think every police officer who pulls someone over for a traffic violation has the right to frisk them unless there are some founded beliefs that the person might also have a weapon.

Chief Justice Warren E. Burger: we had something to say about that long after Terry?

Mr. Robert W. Peterson: That the police officer has a right to require the suspect to answer his questions?

Chief Justice Warren E. Burger: After a stop?

Mr. Robert W. Peterson: Or if there is going to be a full custodial arrest, I think that is right if you are going to take the person down to the jail.

Well, then you do have a right and I suppose that that is the basis for the search in this case.

He was being arrested for vagrancy and since he was now going to be taken to jail, then he could be searched.

But that arrest was unconstitutional for the reasons that I am outlining and so that search has to fall.

Justice Thurgood Marshall: Have a right to ask the question?

Mr. Robert W. Peterson: I think so.

I think the police officer has a right to ask the question but—

Justice Thurgood Marshall: And demand answers?

Mr. Robert W. Peterson: I do not think he has the right to demand answers at all.

Justice Thurgood Marshall: Would he demand the answer?

Mr. Robert W. Peterson: He was arrested because in the officer’s view, he had refused to answer.

That is the element of the crime—

Justice Thurgood Marshall: Well, I thought he answered and he said he was on his way from Vegas to Michigan?

Mr. Robert W. Peterson: Well, I think that the attorney—

Justice Thurgood Marshall: Is that correct?

Mr. Robert W. Peterson: Yes, he is on his way to Michigan.

Justice Thurgood Marshall: And did he not also say that he was staying with some people in Vegas?

Mr. Robert W. Peterson: That is right.

Justice Thurgood Marshall: And then he would not?

Mr. Robert W. Peterson: He could not remember the names.

As one of the witnesses could not remember where he was staying when he testified at his trial.

Justice Thurgood Marshall: So, he did answer the question?

Mr. Robert W. Peterson: Yes, I think the attorney general is in the dilemma because the critical element of the offense is refuse to identify yourself and account for your presence.

Now, either he was not asked to account.

I do not think he was.

He was never asked why he was walking the way he was in the shopping center, in which case there was no probable cause for the arrest.

Or he refused to answer, in which case he was arrested for exercising a constitutional right that he has or he did not refuse, he accounted.

In which case, there is no probable cause to arrest

Justice Thurgood Marshall: That is your basis Mr. Peterson?

That it had been stolen?

Mr. Robert W. Peterson: Oh yes, he did identify himself though he gave his true name and he gave his birthday.

Justice Thurgood Marshall: But he did not have any written identification?

Mr. Robert W. Peterson: No written identification but the Henderson, Nevada Ordinance does not require that.

Justice William H. Rehnquist: Mr. Peterson, what if a policeman makes a Terry type stop and ask for the man he stops to have any weapons on him.

The man says I refuse to answer.

Is it your position that the officer cannot take that refusal into account in determining whether or not (a) to frisk him or (b) to arrest him?

Mr. Robert W. Peterson: I would take that position that he has no right to require that answer, and so he cannot attach a penalty to it and the penalty would be search.

Justice William H. Rehnquist: But it is not necessarily the same to say that you cannot require an answer in the sense of beating it out of a person and to say that you can attach some significance to silence if the normal person would consider it relevant?

You can say the same should they should go both way but they are not exactly the same inquiry.

Mr. Robert W. Peterson: Not exactly, but I think that this court has consistently held that you cannot attach a penalty to silence.

In Griffin versus California could not comment on the fact that the defendant did not take the stand.

Unknown Speaker: That was a testimonial silence under --

Mr. Robert W. Peterson: That is right but in Davis versus Mississippi it was not and in Mr. Justice White’s concurrence in Terry against Ohio, it was not.

I would say that that is an undue price to exact for the exercise of the constitutional right.

You have a right to remain silent.

You cannot penalize that.

That will be my position.

In this case—

Unknown Speaker: In Hofalian (ph) terms, it is a privilege, I guess, and not a right, is it not?

Mr. Robert W. Peterson: A privilege to remain silent.

Again, the police officer had consulted the law in 1968 on the issue of good faith or the Henderson, Nevada City Council had done that, they also would have found that the Ninth Circuit in 1931 had held unconstitutional a Hawaiian ordinance that it made it unlawful to loathe, loiter or idle.

And that ordinance was held unconstitutional on the grounds that it would undoubtedly be enforced discriminatorily and it penalized the constitutional right to wander around.

Something you have a right to do in the United States.

If he looked further, they would have found the federal cases that had struck down good account and satisfactory account statutes of Baker versus Bender and United States versus Margison had struck those down in 1966 and 1967.

The Supreme Judicial Court of Massachusetts had struck down a similar statute and the Supreme Court of Washington, in 1967, held unconstitutional an ordinance that read as follows, “It shall be unlawful for any person wandering or loitering abroad or brought under other suspicious circumstances from 1-1/2 hour after sunset to 1-1/2 hour before sunrise to fail to give a satisfactory account of themselves upon the demand of any police officer.

That was on the books at that time.

I suggest is a more narrowly drawn ordinance than the one that is involved in this particular case.

Unknown Speaker: During our basic submission, I gather on this aspect of the case that it is not only the right, I would say privilege of a police officer but also his duty.

Simply, to take it upon himself not to enforce ordinances duly enacted by the governmental unit by which he is employed, if he has a bona fide belief that they are not constitutional laws.

Mr. Robert W. Peterson: I think that that is the Attorney General’s position.

The Attorney General’s position and they set it forth on page 4 of their brief is that the officer’s belief and the validity of the ordinance must be in good faith.

Unknown Speaker: That is not your position?

Mr. Robert W. Peterson: That is not my position.

My position is that if this ordinance authorizes an unreasonable search and seizure then the evidence must be suppressed.

Unknown Speaker: No, but the reason on this aspect of the case you say is not unreasonable search and seizure is that it was the arrest was made under the authority of an ordinance that was unconstitutional.

Mr. Robert W. Peterson: That is right.

Unknown Speaker: And it would follow from that I suppose that it is the duty of a police officer to take it upon himself not to enforce ordinances that he in the exercise of reasonable care should know are unconstitutional.

Mr. Robert W. Peterson: I do not think that that is his duty.

I think that he should enforce the ordinance if it is on the books and then it will be declared unconstitutional in a suppression hearing or in a prosecution and after that, it will no longer enforce the ordinance.

I do not take the position that the attorney general does that the police officer should exercise his own judgment as to the constitutionality or unconstitutionality of the laws.

I think that is an unworkable rule.

Justice Thurgood Marshall: Is this an unconstitutional right then?

Mr. Robert W. Peterson: As of right now?

This ordinance has not been declared unconstitutional except by the Ninth Circuit.

Justice Thurgood Marshall: So now, what does the policeman do now?

Does he enforce it or not?

Mr. Robert W. Peterson: Right now, he would enforce it unless he was told by the superiors not to.

Justice Thurgood Marshall: In this particular case?

Mr. Robert W. Peterson: I am not sure, I follow that.

Justice Thurgood Marshall: Well, you say that is still on the books, it has still not been declared unconstitutional.

It is still valid.

Well, then it was valid when the policeman arrested this man.

Mr. Robert W. Peterson: No, I think that they just did not know that it was invalid and until this court rules, they do not know, for sure, in the sense that we have a case right squarely on point that it is invalid.

Chief Justice Warren E. Burger: It was invalid?

Mr. Robert W. Peterson: That is right but this court has taken that case and so it is in somewhat of the state of limbo.

Chief Justice Warren E. Burger: But the grant of certiorari is dispensed or cast some cloud in that sense over the ordinance?

We might have been taking it all for anyone knows to simply determine strictly whether in the eyes of the policeman to take Chief Justice Warren’s language out of the Terry case.

He observed unusual conduct which led him reasonably to conclude in the light of his experience that something was not good.

Mr. Robert W. Peterson: He might have taken that for that reason but one of the questions which you granted certiorari on was the question of the constitutionality of the ordinance.

That is right.

Chief Justice Warren E. Burger: And that you are suggesting that there is already an answer?

Mr. Robert W. Peterson: Well, we have the Ninth Circuit’s answer and I think we are going to have this court’s answer, I hope.

Unknown Speaker: (Inaudible)

Mr. Robert W. Peterson: No, I do not think I lose at all because the police officer do not have probable cause to arrest under it even though it is assumed to be constitutional.

Unknown Speaker: Otherwise, unless we address the Ninth Circuit did not -- the probable cause.

Mr. Robert W. Peterson: Yes, in which case, I think that the only thing the court should do then would be to send it back to the Ninth Circuit to get their judgment if this court chooses not to make that judgment itself.

I would hope you would not do that.

This case has been going for 7-1/2 years now.

Chief Justice Warren E. Burger: In your view, does the Terry case, the holding of the Terry case require that there be an arrest before there can be a frisk and a tack down looking for weapons?

Mr. Robert W. Peterson: A full custodial arrest?

No, not if there is a founded suspicion that the person is armed, I think.

Chief Justice Warren E. Burger: The search may be made without an arrest under Terry.

Mr. Robert W. Peterson: Or you could view Terry as a case allowing a limited kind of arrest.

You can look at it either way, the brief detention is a limited arrest but it is not unreasonable under the Fourth Amendment.

It is not unreasonable to briefly detain and also pat down if there is a founded suspicion that the person might be armed because the officer has a right to protect themselves.

That is the way I would read Terry.

Chief Justice Warren E. Burger: After the frisking process or patting down, conceivably that might tip the scales on the part of the officer and not to pursue the matter any further.

Or to continue the interrogation which might as well lead to his release or his moving on as to his being taken under custody.

The search in Terry was for just one purpose, was it not?

Mr. Robert W. Peterson: The particular officer?

That is right because there was a founded suspicion that he might be armed.

I do not think you could pat down anyone that you had a right to ask a question.

I do not think that is what Terry holds.

Does that answer your question?

Unknown Speaker: Do you think the respondent in this case does have a cause of action under 1983 for unlawful arrest?

Mr. Robert W. Peterson: I think he has a cause of action against the officer for arresting him without probable cause.

He has no remedy against the Henderson, Nevada City Council for adapting an ordinance which in effect commands the police to make unreasonable arrest and commands and them to violate the Fifth Amendment rights of people who were walking around in Henderson --

Unknown Speaker: I think the person who is the victim of an unlawful arrest, the arrest being unlawful by virtue of an ordinance subsequently being held unconstitutional does have a cause of action under 1983.

Mr. Robert W. Peterson: No, not if the only reason that the arrest is unconstitutional was the unconstitutionality of the ordinance then he does not have a cause of action under 1983 against the officer.

Unknown Speaker: What if he has not been held unconstitutional at the time of the arrest then in your view there is no cause of action under 1983?

Mr. Robert W. Peterson: That is right.

There is no cause of action either against the police officer under Pierson against Ray.

I think that is the case or against the legislature because the legislature enjoys legislative immunity.

But there is fundamental problem in this case and that is the Fourth Amendment says that the people shall be secure from unreasonable searches and seizures.

The Attorney General would have the court adapt the view that that focus is solely on the police and that a legislative body may command unreasonable searches and seizures and so long as the police officer is relying on that legislative command there is no violation of the Fourth Amendment.

But the Fourth Amendment does not say that people shall be secure only from searches and seizure conceived by the police.

I think that—

Unknown Speaker: This certainly does not protect against searches and seizures by private people does it or against McDonald.

Mr. Robert W. Peterson: Oh no, but there is no question of this being an arrest by a private person here.

This is an arrest by a police officer based on legislation, state law.

And I think—

Unknown Speaker: But if the search and seizure was not by the legislature, the search and seizure was by the police officer that is the way it has to be measured does it not?

Mr. Robert W. Peterson: Well, that is the way it has to be because the legislature does not go out and make the searches itself.

Unknown Speaker: Exactly.

Mr. Robert W. Peterson: That is right.

If I command someone to commit a crime on my behalf, then I cannot say that well, I did not do it and so I am not responsible and I think that is the position that the Attorney General is urging the court to adapt.

And I think that has been rejected by this court in Almeida-Sanchez and Brignoni-Ponce cases decided just last term where the immigration officers were relying in complete good faith and indeed there was unanimity among the Lower Courts as to the constitutionality of what they were doing in making fixed checkpoint stops and roving stops and nevertheless the evidence in those cases was suppressed.

Justice William H. Rehnquist: In this court here, we came out differently.

Mr. Robert W. Peterson: On issue of retroactivity

Justice William H. Rehnquist: Well, on the issue of whether the exclusionary rule should be applied.

Mr. Robert W. Peterson: To cases other than the first case that is brought to this court.

This is the first case with respect to this ordinance where there has been an arrest under -- This has been brought to this court whether or not to apply this case retroactively and other decisions, I think he has wait until those cases come along.

Justice William H. Rehnquist: But in Peltier, one of the grounds that was relied and was the fact that the order officers had relied on an active Congress.

And here, you have got certainly some sort of an analogy that if the local policeman relies on an ordinance of his locality maybe it is entitled of the same weight but it is certainly a factor.

Is it not?

Mr. Robert W. Peterson: It is a factor in the next case.

The next case that comes along where someone else is arrested under the same ordinance, certain ordinance which is drafted in substantially the same terms and this court has said, and how you cannot make arrest under those ordinances.

Justice William H. Rehnquist: But the test is whether the seizure was reasonable.

It is not a flat reward where the constitution says no unreasonable seizure.

And are you saying that the fact that he in good faith relied on an ordinance he thought to be valid and have not held to be otherwise, simply is entitled to no weight in the determination of reasonableness?

Mr. Robert W. Peterson: I think that since the constitution says that you shall be secure from unreasonable searches and seizures, that you cannot look just at the agent who was then commanded to make the unreasonable search and seizure by the legislature.

Justice William H. Rehnquist: My question is whether you look just to that but I am asking you whether you say, is it to be entirely out of consideration, the fact that there was not in effect an ordinance that had not been held invalid in determining something like reasonableness?

Mr. Robert W. Peterson: No, I think the only consideration the court should give to the existence of that ordinance is the normal kind of presumption that the court gives to the constitutionality of the law until it is declared unconstitutional.

But if that is an unconstitutional ordinance then I think in this case, the evidence is going to have to be suppressed.

Justice Thurgood Marshall: Let us assume for a moment that a man is arrested like this man was, but at the time of his arrest, the Supreme Court of the State of Nevada had ruled that ordinance was constitutional.

Are you with me?

Mr. Robert W. Peterson: I am with you.

Justice Thurgood Marshall: And so they arrest him and they find this incriminating evidence.

And subsequently this court said that the Nevada Court was wrong, would that invalidate that arrest?

Mr. Robert W. Peterson: Did it say that the Nevada Court was wrong in the same case that the Nevada Court has said that it was right then it would invalidate the arrest?

If it were a different case it would not.

Justice Thurgood Marshall: Well, so that the only way it could be reasonable that would be a decision of this Court.

Right?

Or Higher Court?

Mr. Robert W. Peterson: I think the only way in the first case to get to this court—

Justice Thurgood Marshall: This is the only way it could be reasonable.

Would it be this court or higher one?

Mr. Robert W. Peterson: No, it is either reasonable or unreasonable but I am not sure that you can rely on how this court is going to rule until this court has ruled.

And that Nevada Supreme Court—

Justice Thurgood Marshall: It would be reasonable if every court in a line, they rule on it one way and then we came along later rule the other way.

Mr. Robert W. Peterson: Then it would not be reasonable.

Justice Thurgood Marshall: Then it would not be reasonable?

Mr. Robert W. Peterson: That is right.

Chief Justice Warren E. Burger: What happened (Inaudible)

Mr. Robert W. Peterson: He cannot get to declaratory judgment in the case like this because he do not have standing under Ellis versus Dyson.

Well, I think, you have to eventually -- a case is probably going to have to end up in this court if there is serious doubt about the reasonableness of it as this case has.

Justice Thurgood Marshall: (Inaudible) This would be then clogging much, you say that you wait here till I get a definitive decision on this? That is why I am locked here.

Mr. Robert W. Peterson: No, you cannot do it that way—

Justice Thurgood Marshall: Why would you do it?

Mr. Robert W. Peterson: I think that this court has struck that balance in its retroactivity decisions.

In the Brignoni-Ponce and Almeida-Sanchez cases, many people had been arrested and searched pursuant to the Federal statutes on those cases and this court in Peltier decided not to reverse those but this court did and the case that came here reversed that decision.

And I think that is the way the balance has been struck.

It will not be applied retroactively most likely but it has to be applied in this case since this is the first case to get here.

Chief Justice Warren E. Burger: Mr. Justice Marshall’s hypothetical inquiry, in the interim, after the ordinance is on the books and before the Supreme -- the highest court of the state has passed on it, is there not an old fashioned idea of the presumption of the constitutionality and validity of that statute?

Mr. Robert W. Peterson: That is right.

I think—

Chief Justice Warren E. Burger: It is just as valid before the Supreme Court of Nevada passes on it as it is afterwards for these purpose, is it not?

Mr. Robert W. Peterson: Until it gets here and it is declared invalid and once it gets here, it is like Almeida-Sanchez and Brignoni-Ponce.

Chief Justice Warren E. Burger: Obviously, this officer passed on it in that interim period?

Mr. Robert W. Peterson: Yes, it did.

I have suggested at that time the ordinance was also invalid because or he had no reasonable grounds to believe it was valid because there was a welter of cases on the books even then suggesting it is invalid.

Chief Justice Warren E. Burger: On your response, I thought you gave to Mr. Justice Stewart in a while ago that you were not taking position that this officer had any duty or any power at some constitutionality?

Mr. Robert W. Peterson: Well, to use a phrase has been used before that as a fall back position, I am not conceding that his good faith should be the test but I am saying that that is the test, that this court adapts the attorney genera’s position then this officer could not have had good faith because of the plethora of cases were on the books at that time.

Unknown Speaker: How can you say, there would have been a 1983 case against them?

I assume they must have been assuming that there was good faith as the defense in the 1983 action.

Mr. Robert W. Peterson: Well, that of course has not been completely resolved by this court in Pierson against Ray.

I would think that for the purposes of damages against the police officer, the court might well take the position that he could hide behind the shield of the statute.

Unknown Speaker: Just one question on the broader problem of collateral attack and this kind of issue being raised in a federal collateral attack, do you understand the deterrence is the reason why there should be collateral attack and state conviction is raising this kind of question?

Let me rephrase it, I am afraid I confused you.

As I understand your brief, the underlying reason for the exclusionary rule is to deter improper assertions.

Mr. Robert W. Peterson: That is one reason.

Unknown Speaker: What else?

Mr. Robert W. Peterson: The imperative of judicial integrity is another reason, that is a vague concept but I rather like the suggestion that the Shelley against Kraemer approach when a court accepts illegally seized evidence, it is effectuating an unconstitutional act in the same way that in Shelley versus Kraemer, the court was effectuating the racially discriminatory covenants by enforcing those covenants.

I think that is one way to look at the imperative of judicial integrity.

Unknown Speaker: You say, the same basis, you assert the same basis for supporting the need for collateral attack in the federal court on state convictions, the two reasons, deterrence and the imperative of judicial integrity.

Mr. Robert W. Peterson: Yes, those are two reasons.

Unknown Speaker: Well, there is still another that has been voiced and that is suppression is necessary to vindicate a person’s own right.

Mr. Robert W. Peterson: Yes, that also.

Unknown Speaker: The exclusionary rule should apply to a legislature as well as to the police?

Mr. Robert W. Peterson: I think that has to be the rule because the Fourth Amendment says that you shall be secure from unreasonable searches and seizures and there is no way that you can be secured if the legislature can tell the police, do as you please.

Unknown Speaker: In fact, the suggestion that the real deterrence to a members of the legislation is the power of the judiciary to hold unconstitutional, any act that is indeed invalid.

Mr. Robert W. Peterson: Oh, I certainly do in the context of this case because it is not going to be held invalid unless you have a suppression hearing and it is held invalid at the suppression hearing.

If it can only be held invalid in a prosecution then the District Attorney is going to refrain from prosecuting because of the clear unconstitutionality of the ordinance.

That way, he will protect searches and seizures that are made under it.

There cannot be a declaratory judgment action because that is trammeled up with the Article 3 requirements, standing requirements that now allow only a very narrow group to anticipate by going into court and attacking the ordinance in Ellis against Dyson.

This court’s case from last term is a very good example of that.

Unknown Speaker: This is to the extent that you rely on the terms as a justification for collateral attack, you are necessarily I assume also making the assumption that there is a difference between these plans that will be processed at the state court and the way it will be processed in the Federal Courts because if there is no difference why you do not need the additional deterrence of collateral attack.

Is that not correct?

Mr. Robert W. Peterson: There may be a difference.

It is not going to be different in every case but the—

Unknown Speaker: In some cases where the Federal Court would grant relief but not the state.

Mr. Robert W. Peterson: That is right and this is a good example.

Unknown Speaker: Is it not always true that the Federal Court addresses the issue three or four years after the criminal proceeding began and therefore three or four years after the man started his sentence?

Mr. Robert W. Peterson: Certainly true in this case.

Unknown Speaker: To the extent that you are talking about police deterrence, you are talking really about whether a man may serve a three or four years sentences as opposed to five or six years sentence.

You are only talking about the latter portion of his sentence and in this case, indeed we are talking about a man who is already on parole?

Mr. Robert W. Peterson: That is right.

He is already on parole.

Unknown Speaker: That is normally the case by the time you exhaust the lengthy proceedings that by the time you reach the end of the federal review process, the question of deterrence pretty well then come to an end?

Mr. Robert W. Peterson: No, not in the sense that we rare only deterring Officer Lauten(ph), these laws are still on the books today and as a matter of fact, California has an identical disorderly conduct statute which is being enforced today in California.

And if I understand the deterrence rationale for the Suppression Doctrine, it is to deter other law enforcement people including other legislative bodies from unreasonable searching.

Unknown Speaker: If you enforce an ordinance like this, the man will only stay in jail for five years.

Would you assume the state will sustain the ordinance and sustain the conviction?

And only relate this in the Federal Court, the deterrence is that you tell him, that you tell the police that you can only put the man away for five years?

Mr. Robert W. Peterson: No, the deterrence is that you tell the legislature today.

Right now, that these laws are no good.

Unknown Speaker: To put a man away for five years.

Mr. Robert W. Peterson: That is right.

Well, once this court has declared the ordinance to be constitutional and I would hope and trust that state courts would not continue to keep the person incarcerated and a motion to suppress would be sustained.

Unknown Speaker: By a state court?

Mr. Robert W. Peterson: By a state court, after this court has given its guidance as to unconstitutionality of the ordinance and the appropriate application of the Suppression Doctrine when arrest is made in reliance on an unconstitutional law.

Chief Justice Warren E. Burger: The point you are making almost seems to suggest that all these ordinances are fungible or they are just exactly alike, that Chief Justice Warren in the Terry opinion took about a half a page to point out the myriad variety, the infinite variety of ordinances.

Great many people are going to have different views about whether a particular holding of this court fits one way or the other on a particular ordinance, you think that so?

Mr. Robert W. Peterson: Well, I think that is true but this court does proceed on principle and it announces principles which can be applied with a fair degree of certainty to fairly similar situations.

Although it is easy to pose, redrafting these ordinances in any number of ways to make them arguably constitutional in spite of what this court has said.

The next ordinance might say, tramp about or it might say, saunter, or it might use some other equally vague words so that they could argue that the Powell case does not quite fit this case.

I can only hope that this court’s decisions would be applied in good faith by the State Courts.

Unknown Speaker: Acting suspiciously would be equally inferred.

Mr. Robert W. Peterson: Certainly as a ground as to make someone a criminal.

Chief Justice Warren E. Burger: It is almost precisely the language this court used in the Terry case.

Mr. Robert W. Peterson: But they did not make someone a criminal for that and they did not authorize a full custodial arrest for simply being suspicious.

Chief Justice Warren E. Burger: They authorized a full search which in this case and in many other cases would produce a gun or heroine or some other evidence of criminality.

Mr. Robert W. Peterson: I authorized a pat-down where there was founded suspicion that the person might be armed for the protection of the police officer.

Unknown Speaker: Mr. Peterson, is it not correct that in most of this court’s decisions passing on the constitutionality of this Vagrancy Ordinance, the issue has been presented on a direct appeal?

Is this not the only time this kind of issue has been presented under collateral attack?

Mr. Robert W. Peterson: To this court?

Unknown Speaker: Yes.

Mr. Robert W. Peterson: No, it was presented last year in Lefkowitz versus Newson but this court did not take it.

Unknown Speaker: I mean in the decisions by this court in validating such ordinances.

Mr. Robert W. Peterson: Yes.

Unknown Speaker: There was just question whether you need a collateral review as a method of getting this kind of issue to this court.

Mr. Robert W. Peterson: Well, I think it is interesting that this ordinance has been presented to this court in a number of other direct appeal cases in People versus Solomon and I think People versus Wager coming from California and this court did not take the case and yet here it is now in the suppression ordinance.

Justice William H. Rehnquist: Maybe this amounts differently.

This time we would have not taken it.

Unknown Speaker: But the point is, if it gets here to a direct review whether we take it or not.

Mr. Robert W. Peterson: Thank you.

Chief Justice Warren E. Burger: (Inaudible)

Rebuttal of Robert R. Granucci

Mr. Robert R. Granucci: Thank you Mr. Chief Justice.

Some random thoughts.

First, there was probable cause.

The district court after an independent examination of the State Trial record found probable cause.

Second, counsel’s argument appears to imbued bad faith to the Town Counsel of Henderson.

I would simply point out that the Henderson Vagrancy Ordinance was based on a Nevada statute.

The Nevada statute was in turn based upon the California disorderly conduct statute and the California disorderly conduct statute was enacted in 1961 based on a model suggested by a respected scholar, Professor Arthur Sherry of the University of California, Law School who had served as the Head of Governor Earl Warren’s Crime Commission.

Counsel also cited Almeida-Sanchez, however in Almeida-Sanchez, as this court noted in Peltier, there were no independent considerations of exclusionary rule policy considered by the court apart from the validity of the statute which was challenged.

I respectfully urge the court again to reverse the decision of the Ninth Circuit and to reinstate this conviction.

After all, this is not a vagrancy case this is a murder case.

Thank you, your Honors.

Chief Justice Warren E. Burger: Thank you gentlemen.

This case is submitted.

Print this transcript Transcript: 

Argument of Melvin Kent Kammerlohr

Chief Justice Warren E. Burger: We will hear arguments next in number 74-1222, Wolff against Rice.

Mr. Kammerlohr, you may proceed whenever you are ready.

Mr. Melvin Kent Kammerlohr: Thank you Mr. Chief Justice and may it please the Court.

This is a case of -- for the then Warden Wolff of the Nebraska Penitentiary who is no longer there, was the, is now a petitioner in this case, the case brought by Mr. David Rice under 28 U.S.C 2254 to primarily contest the admission at his trial of some dynamite, dynamite caps, tools, other paraphernalia and also later some dynamite particles found in his clothing at the police station.

Briefly how this case arouse, Your Honors, on the early morning hours of August 17, 1970.

The police station in Omaha, Nebraska received a 911 emergency call, they had woman who was screaming, sounded like perhaps she was being raped and a certain location was given.

Two patrol cars were dispatched, a third patrol car heard the message and also went to the location on Ohio Street in Omaha, Nebraska and upon entering the premises, Officer Larry Menard saw a suitcase on the floor which he moved slightly, and the suitcase exploded killing Officer Menard and injuring two other policemen and demolishing the house.

The -- about five days later on the 22 of August 1970, the police had, during those five days working round the clock trying to gather evidence and so on, had learned that from witnesses that the bomb had been planted by one Dwaine Peek who is a member of the National Committee to Combat Fascism, which was also considered -- said to be in a case, and referred to as an offshoot of the Black Panther Organization.

Chief Justice Warren E. Burger: It does not inform any of the predicate for the issuance of the search warrant, does not it?

You are just giving background --

Mr. Melvin Kent Kammerlohr: Yes, Your Honor, just giving background to refresh --

Chief Justice Warren E. Burger: -- information in possession of the police at that time?

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

And also, information in the -- as a result of this information and prior building of records over two-year period of newsletters, put out by the National Committee to Combat Fascism that they had advocated violence to police officers, including the killing of police officers.

With the -- plus another evidence, they had gathered that perhaps one Edward Poindexter who was a member of the National Committee and officer, President I believe of the National Committee to Combat Fascism and Dwaine Peek, arrest warrants were issued for those two members.

The police started on what they call a taskforce on the afternoon, late afternoon of August 22, first went to the headquarters of the National Committee to Combat Fascism.

They went through the headquarters looking for these two persons that they had a search warrant -- arrest warrant for and did not locate them. They then went to Poindexter’s home, did not locate him there.

They went to cousin, a cousin’s home of Dwaine Peek, cousin’s name are Frank and Will Peek and then they went to the home of David Rice, who is the respondent in this case.

Justice Potter Stewart: And up to this point, what warrants if any, did they have?

Mr. Melvin Kent Kammerlohr: Up to this point, they had arrest warrants for Dwaine Peek and Edward Poindexter, Your Honor.

Justice Potter Stewart: Not for the, not for the respondent?

Mr. Melvin Kent Kammerlohr: That is correct, Your Honor.

Justice Potter Stewart: -- up to that point?

Mr. Melvin Kent Kammerlohr: At this point.

The -- I would like to point out that they did not, I think the opinion in the United States Court of Appeals for the Eight Circuit, does a disservice to this case by saying, by comparing it to Langford versus Gilstone where some 300 non-related searches were made.

Justice Potter Stewart: Is that Baltimore case?

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

In this case, there are only three searches made before they arrived at the Rice premises and even those were connected.

Chief Justice Warren E. Burger: Did they search anything at the first two stops?

Mr. Melvin Kent Kammerlohr: They searched the premises at the headquarters, at the other two stops the record is not clear just what they did, they went there looking for them at least.

I believe at the one place, there was a police officer there already, who assured them that neither one of the defendants are on the -- the subjects were on the premises.

Chief Justice Warren E. Burger: Just the pursuant to what Mr. Justice Stewart had mentioned, at that point the mission was to execute to serve an arrest warrant --

Justice Potter Stewart: For two other people --

Chief Justice Warren E. Burger: -- for two people who are not involved in this case?

Mr. Melvin Kent Kammerlohr: That is correct, Mr. Chief Justice.

They were all three members of the party, the National Committee to Combat Fascism, and -- which had been prior -- previously connected into the case by the fact that Dwaine Peek was said to have planted the bomb for the National Committee to Combat Fascism.

Justice Potter Stewart: Was said by whom?

Mr. Melvin Kent Kammerlohr: His sisters and Donald Peek a brother had given this information to the police.

Justice Potter Stewart: And that information been published, made public to the public generally?

It was a newspaper, was not it, or a publication?

Mr. Melvin Kent Kammerlohr: All the police officers were cognizant of this. Several witnesses had seen Dwaine Peek carrying a heavy suitcase and telling people, do not touch it, on the night before the -- the night before the bomb was planted.

Justice Potter Stewart: And that was Peek?

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

Justice Potter Stewart: Who was the subject of, one of the subjects, one of the two subjects of the arrest warrants?

Mr. Melvin Kent Kammerlohr: That is correct.

The -- upon arrival or some, late at night, maybe nine-thirty, ten o'clock at night that David Rice's premises, the lights were on, a television set was playing, they could see it through the door, the police knocked on the door and there was no response.

And at this time the -- two of the police officers decided they should go back and see if they could get a search warrant.

They left the other officers there to surround the house and the two officers went back to the police headquarters and drafted an affidavit and found themselves a magistrate, who incidentally in Nebraska, all magistrates are members of the Nebraska Bar Association in Good Standing, they presented the affidavit to the magistrate who issued the search warrant for the premises describing the exact address of David Rice’s premises and the things to be searched or to be seized.

Justice Potter Stewart: What, what were they?

Mr. Melvin Kent Kammerlohr: Dynamite, dynamite caps, pliers, pincher-nose pliers, those are the kind of -- maybe I should, it is in the appendix, Your Honor.

Unknown Speaker: (Inaudible)

Mr. Melvin Kent Kammerlohr: I believe it is on page ten of the appendix, Your Honor.

Justice Potter Stewart: Wire is not -- it is not quite so explicit as you have indicated, as I read it.

Dynamite and illegal weapons, also the devices which might be used to construct weapons or explosive devices which could be used to cause injury to persons or damage the property, is that it?

Mr. Melvin Kent Kammerlohr: Yes, that is it, Your Honor.

It is not -- it does not say the pliers and the wires, I am sorry.

Justice Harry A. Blackmun: It does say what you have indicated.

Mr. Melvin Kent Kammerlohr: In any -- in any case the police then with -- the two officers with the search warrant went back to the Rice premises and all the officers entered the premises and found the evidence, which is objected to in this case.

It was all in plain sight upon entering the premises.

They did not have to overturn anything or open any drawers or anything of that nature.

The Federal District, well, first the Supreme Court of Nebraska --

Justice Thurgood Marshall: (Inaudible) they knew the police where there all this time, did not they, did not the police first wrap on the door?

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

Justice Thurgood Marshall: And they knew the police were there?

Mr. Melvin Kent Kammerlohr: There was no one there inside the premises.

Justice Thurgood Marshall: And when he went back?

Mr. Melvin Kent Kammerlohr: Still no one inside the premises, Your Honor.

Justice Thurgood Marshall: That is what I am trying to get straight.

Mr. Melvin Kent Kammerlohr: The --

Unknown Speaker: They staked out the house?

Mr. Melvin Kent Kammerlohr: They staked out the house while they were gone.

Chief Justice Warren E. Burger: And sent an officer to get the warrant that you just referred to on pages --

Mr. Melvin Kent Kammerlohr: Two officers, to get the warrant of arrest and staked out the house.

Justice Potter Stewart: And the house was empty, as I understand it at all relevant times, although there were lights on in the house and I think a television set was turned on, is that correct?

Mr. Melvin Kent Kammerlohr: Correct, Your Honor, that is correct.

Justice Potter Stewart: But nobody in the house?

Mr. Melvin Kent Kammerlohr: No people in the house.

The -- before the actual trial, the respondent moved for suppression in the District Court of Douglas County, which is in Omaha.

The District Court denied suppression of the evidence.

The Supreme Court of Nebraska affirmed finding that the affidavit for search warrant was sufficient.

The Federal District Court in the 2254 case then found that the affidavit for search warrant was not sufficient.

We then had later, after that order was first -- that order of several months previous to the -- to another order which the Federal District Court later issued finding that there were not any other grounds either authorizing legal entry into the premises.

The United States Court of Appeals affirmed and we then petitioned this Court and are here and although I have a number of issues in my brief and in our petition for certiorari, I would like to primarily argue two main points which we would urge this Court to adopt and we would still like to rely of course on our other points in our case, should those be denied.

Justice Potter Stewart: Mr. Kammerlohr, before you proceed, may I ask you is there -- do we have any papers filed here a copy of the opinion of the Supreme Court of Nebraska?

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

Justice Potter Stewart: Can you tell me where?

Mr. Melvin Kent Kammerlohr: No, Your Honor, I am sorry.

The Supreme Court of Nebraska, opinion does not appear -- the federal opinions are all I have in the --

Justice Potter Stewart: Yes, that is what I thought.

But, I do not -- I cannot even see the citation of the, perhaps your colleague can find it --

Mr. Melvin Kent Kammerlohr: I have the 188 Nebraska, 728 --

Unknown Speaker: (Inaudible)

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

Unknown Speaker: That is Northwestern cited as 199 Northwestern 2nd 480.

Mr. Melvin Kent Kammerlohr: As I have alluded to -- alluded in my brief, this Court of course is very familiar with the arguments against the exclusionary rule and for the exclusionary rule and there has been dissatisfaction mentioned a number of times so that I do not intend to go into all of those various cases and try to tell the this Court the same things that you are very familiar with and take up your time and time of others here.

I do think I should mention, just briefly, why we do not feel that the; number one, the exclusionary rule should apply on officers or acting under a search warrant.

We would ask the clerk to modify the exclusionary rule to very least to that point.

The magistrate perhaps was the person who was wrong if anyone was wrong and issued a search warrant in this case.

I do not believe that we can blame or that the purposes of the exclusionary rule would be served if the purposes are to deter unlawful action of the police or they have tried to do what is right, they have gone to a lawyer magistrate and asked for a search warrant.

I don’t see how can there can be any possibility of deterrents to future cases, because it is the type of procedure we operate under, it is preemptory type writ, there is no way of having an immediate hearing to see if the writ is any good.

The police certainly would not be in a position every time they get a search warrant to question its validity.

We encourage the use of search warrants and I believe the imposition of the exclusionary rule would go more to discourage the use of search warrants than to encourage it.

So for those reasons and for that purpose of the exclusionary rule I would ask the Court to at least modify the exclusionary rule to that extent when officers are operating under search warrant.

Chief Justice Warren E. Burger: Generally, I suppose you mean --?

Mr. Melvin Kent Kammerlohr: Generally, I would ask in good -- when they are operating in good faith and think that they are following the law that the exclusionary rule serves no purpose and in that light generally, I might also say I know we are all interested in seeing that we have the preservation of freedom and privacy in this country, but the exclusionary rule as this Court well knows, does absolutely nothing to protect those who do not have any guilty evidence on their premises.

If the police should suddenly take it into their heads to become a Police State or Nazi-type State, the general public who does not have any guilty evidence on their premises where they have -- have absolutely no remedy under the exclusionary rule, they are not just protected.

The same is true when the police take it into their head to harass gamblers or house of prostitution or anything else where they do not want the evidence to used in the court, but they merely want to either gather the evidence to destroy it or they want to -- let them know that they are aware of their operations, the exclusionary rule does those people absolutely no good.

Now, we do not, we cannot measure of course --

Justice Thurgood Marshall: (Inaudible).

Mr. Melvin Kent Kammerlohr: I believe it could --

Justice Thurgood Marshall: -- you are talking about?

Mr. Melvin Kent Kammerlohr: Because the alternative remedies that then suggest, I believe they could, Your Honor.

If we had --

Justice Thurgood Marshall: (Inaudible) knock down doors and all that knocks down old constitutions, does it?

Mr. Melvin Kent Kammerlohr: Unless we do provide a better remedy than the exclusionary rule, Your Honor?

Justice Potter Stewart: Not that they have been suggested necessarily as alternative remedies, they have been suggested as additional remedies, have they not?

Maybe the exclusionary rule only -- only serves to effectuate the Fourth Amendment in the context of a criminal trial, but other remedies are at least theoretically available to effectuate that constitutional provision in other contexts, i.e. civil lawsuits, Bivens; Bivens case, you are familiar with, are you not?

Mr. Melvin Kent Kammerlohr: The Bivens case --

Justice Potter Stewart: That is not an alternative to the exclusionary rule, it is an additional sanction, is it not?

Mr. Melvin Kent Kammerlohr: That is correct, Your Honor.

It is an additional -- 1983 cases -- I believe that was a probably a 1983 case, was it not?

Unknown Speaker: (Inaudible)

Mr. Melvin Kent Kammerlohr: It was not.

Well, I believe that anyway that there is a remedy under 42 1983.

Justice Potter Stewart: 1983, where the Bivens involved a Federal -- the Federal Government, that is the reason it was in 1983, but as to against state agents there might be 1983 remedies and these are not alternatives, they are additional remedies, are they not, under present state of the law?

Mr. Melvin Kent Kammerlohr: In a present state of the law, but I am just saying that those writers like Allan Oaks, Professor Oaks and Mr. Chief Justice Burger I believe dissented in Bivens to suggest that --

Justice Potter Stewart: (Voice Overlap) was not it?

Mr. Melvin Kent Kammerlohr: If we should move away from the exclusionary rule completely we should have an alternative remedy.

Justice Potter Stewart: Those remedies, there is considerable question about their efficacy and practical value, but they are -- they are now there, are they not?

Mr. Melvin Kent Kammerlohr: Yes, they are.

Justice Potter Stewart: You are not -- you are not suggesting or trying to invent addition -- anything that is not already there, are you?

Mr. Melvin Kent Kammerlohr: I am not suggesting that we --

Justice Potter Stewart: You are suggesting that we take away something, not that we add something, is that correct, from what is presently they are to effectuate the --

Mr. Melvin Kent Kammerlohr: I am suggesting that the exclusionary rule does not do a thing for these certain classes that I was mentioning.

Justice Potter Stewart: That is correct.

Mr. Melvin Kent Kammerlohr: And I am suggesting that we do add something --

Justice Potter Stewart: They are already there, what would you add?

Mr. Melvin Kent Kammerlohr: I would make a requirement that before the exclusionary rule be completely abandoned by this Court in all cases that the States must provide a tort remedy with a minimum recovery for the person who is injured.

I guess the governmental subdivision who employs the police --

Justice Potter Stewart: So what, we should wait for, assuming that we might consider -- re-reconsider the exclusionary rule we should not do so until majority of the State Legislatures had acted, or majority of the State Courts had acted providing a specific tort remedy with a minimum amount of recovery, is that your suggestion?

Mr. Melvin Kent Kammerlohr: I am suggesting --

Justice Potter Stewart: I do not understand that?

Mr. Melvin Kent Kammerlohr: That you could impose that in an opinion to make an incentive for state legislatures to move ahead and do this --

Unknown Speaker: (Inaudible)

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

Chief Justice Warren E. Burger: Where the state provides an alternative remedy then the Mapp against Ohio is out?

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

I believe that it could be done by this Court.

Justice Potter Stewart: Would not you -- would not it be your guess that every state in the union, including Alaska and Hawaii probably have such a tort remedy right now?

Mr. Melvin Kent Kammerlohr: Not with any minimum recovery, I think that is the problem with most of them as people are not materially injured very much in this cases.

So they do not even bother the tort remedy because they might get a few dollars back and it would not be worth it.

Justice Potter Stewart: Are you suggesting there be a minimum recovery even, what -- first of all there has to be a finding of liability, does not it?

And then normally recovery is -- is key to the amount of damage.

You are suggesting of what, punitive damages, that a state must create a cause of action and allow for minimum punitive damages before the exclusionary rule should be reconsidered at least with respect to that state, is that what you are saying?

Mr. Melvin Kent Kammerlohr: It would be a form of those, Your Honor, yes.

A punitive damages I guess you --

Chief Justice Warren E. Burger: -- trouble damages plus attorneys’ fees, some sort of approach?

Mr. Melvin Kent Kammerlohr: Yes, Your Honor and of course I am not advocating that in this case as far as a search warrant.

I think that this Court should not impose exclusionary rule in cases where, as I have mentioned earlier, search in -- under search warrant.

Justice Potter Stewart: How to enact with a warrant?

Mr. Melvin Kent Kammerlohr: That is correct, I do not believe that the -- unless there is some showing of collusion or fraud or something like that or the police actually lied in their affidavit or something in that nature, perjury.

Justice Thurgood Marshall: (Inaudible) and disconnected from the police department in town?

Mr. Melvin Kent Kammerlohr: Well, that is what they are in our case, I do not know how many --

Justice Thurgood Marshall: That is the situation I am talking about?

Can you localize it with police at all?

Mr. Melvin Kent Kammerlohr: There is no connection.

He is supposed to be interpose between the police and the public.

He, I believe that if someone were to be -- if some sort of a sanction ought to be imposed, it ought to be imposed on the magistrate, we should do away on the absolute protection that magistrate has in this type of case, which I believe is a court-made rule.

Justice Potter Stewart: Are you suggesting that a magistrate be what, criminally of civilly liable, for doing what?

Mr. Melvin Kent Kammerlohr: I am suggesting that a magistrate who is grossly negligent, that should have a some sort of liability or else his employers, yes and remove the immunity, the absolute immunity that magistrates now enjoy.

Justice Potter Stewart: (Inaudible) judicial immunity, would it not?

Mr. Melvin Kent Kammerlohr: It would cut across, yes, Your Honor.

Chief Justice Warren E. Burger: (Voice overlap) in several cases?

Mr. Melvin Kent Kammerlohr: I believe it be one possibility at least that an alternative rather to say that we are trying to deter the police who cannot possibly understand all of the intricacies and the certainties of the law.

Also the -- a lot of prosecutors do not understand the intricacies and the certainties of the law.

Chief Justice Warren E. Burger: You were going to make two points on this, you have made one now and your second one you have only about two or three minutes left.

Mr. Melvin Kent Kammerlohr: I am sorry, but time got away from me, Your Honor.

The other point which I strongly urge this Court to adopt was the, I believe I can refer to this -- the easiest the court rule know what I am talking about is Mr. Justice Powell’s concurring opinion in Schneckloth versus Bustamonte that the Federal Courts not consider search and seizure.

Unknown Speaker: (Inaudible) need not consider the form of --

Mr. Melvin Kent Kammerlohr: Pardon, Your Honor?

Justice Byron R. White: We agree on you on that, we need not consider the argument you have just made about modification of the rule?

Mr. Melvin Kent Kammerlohr: You need to consider?

Justice Byron R. White: We would not need to consider it.

Mr. Melvin Kent Kammerlohr: Oh! The one I have just made.

Well, I think that two could work together in some cases, it is rather a fall-back position, but I think --

Justice Byron R. White: Which is the fall-back position according to you?

Mr. Melvin Kent Kammerlohr: The first argument.

The -- I believe that the second argument is based on; (a) that the violation of the Fourth Amendment is connected with a collar book claim of innocence, plus an opportunity to be heard in the State Court and to err these issues.

Now, I cannot conceive right off where second issue would need to be but there could be a possibility I suppose where the petitioner is claiming that the Fourth Amendment resulted in being unjustly convicted because he was innocent and he had a valid opportunity to contest it, and yet it was under a search warrant.

And if we did not adopt the first issue then he would still be able to bring it up under the invalid search warrant, in those cases only however.

But of course nobody here wants an innocent man convicted, I believe that is a point that should be allowed to continue and I believe everybody would agree with that in 2254 cases.

That -- this -- in summary then I would urge the Court to or I would say that we agree wholeheartedly with the concurring opinion in Schneckloth and with Mr. Justice Stewart and Mr. Harlan, Justice Harlan in the Kaufman case in the dissent.

Thank you.

Chief Justice Warren E. Burger: Mr. Peek who came back into the act and testified that he indeed was the fellow who carried --

Mr. Melvin Kent Kammerlohr: Mr. Peek testified on behalf of the state against Mr. Rice.

Chief Justice Warren E. Burger: They had arranged that he and -- the respondent here had arranged this booby trap suitcase that killed the policeman that you have described earlier.

Have you not, you are not making a harmless error argument?

Mr. Melvin Kent Kammerlohr: No, Your Honor.

Unknown Speaker: I must take it that your argument concedes that the Eight Circuit opinion is the proper one based on opinions of this Court?

Mr. Melvin Kent Kammerlohr: No, Your Honor, I am not.

Unknown Speaker: No, you make a point in your brief that makes it a valid search?

Mr. Melvin Kent Kammerlohr: -- in my brief which I have not argued, which I think this, I think the Eight Circuit --

Unknown Speaker: That indicates that the Eight Circuit opinion is out of line with anything decided here?

Mr. Melvin Kent Kammerlohr: The Eight Circuit is out of line in comparing the case with Langford versus Gilstone (ph) and also with saying that the police their exigent circumstances argument by going for a search warrant.

It is trying to take one for the other, you know, a trade-off of some type and they did leave a cordon around the empty house and I do -- I do not see how they can say that we lost exigent circumstances argument.

And thirdly, I think that the court misconstrued the Hayden case by saying that the police had have probable cause to believe that the person they were looking where there at the very time they entered the premises.

Because in Warden versus Hayden, even though they knew the person where in there they did not know that -- they did not have probable cause to open the washing machine lid where they found the weapon, and nevertheless that was sustained.

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

Mr. Cunningham.

Argument of William C. Cunningham

Mr. William C. Cunningham: Mr. Chief Justice and may it please the Court.

In the assignment of duties between counsel, in our case my colleague J. Patrick Green from Omaha, Nebraska was to have presented the oral argument and he has been incapacitated yesterday by severe attack of influenza.

I propose to deal with three points in the argument for the Court and be able to respond to questions from you, and in this order.

First, we think it of primary importance to deal with the question added to the grant of the petition for certiorari on 30th June, last year to whip whether the constitutional validity of the search and seizure performed by the Omaha police under the circumstances of this case is judicially cognizable under the 28 U.S.C 2254.

Almost in identical language on that same day, June 30 in Powell versus Stone, the court again added that question to the grant of certiorari and asked the parties involved, both to brief and to argue those questions, and so I propose to deal with that question first.

Secondly, I would like to deal with the need for Federal Review at lower court level federal constitutional questions, and by lower court level, I mean both the United States District Courts and the Circuit Courts of Appeal; with questions presented by state prisoners under 28 U.S.C 2254, in seeking petitions for habeas -- writs of habeas corpus.

Thirdly, I would like to present arguments regarding the standards that should be used by either state or federal courts to determine a constitutional validity of the search in this case.

Addressing myself to the first question, and transmitting any discussion of the facts which I think were brought out to some extent by counsel for the petitioner, I could deal with those in questions if the court so desires.

Chief Justice Warren E. Burger: Is there relevance -- significantly relevant facts that have been omitted?

Mr. William C. Cunningham: I think, Your Honor, when we take the record in its totality, including and placing the special stress upon the careful hearings -- evidentiary hearings in the Federal District Court in Lincoln, Nebraska before Judge Warren Urbam (ph), all of which is before the Court that we then have the total facts of the case.

But absent those two evidentiary hearings in March and July of 1974, before Judge Urbam granted the writ of habeas corpus, I think the Court would have had, had it come on direct review in an inadequate record before it.

So it supplemented then by those evidentiary hearings --

Unknown Speaker: They are all in (Inaudible)

Mr. William C. Cunningham: They are, Your Honor.

The relevant portions of them from the, yes.

Dealing then with the question of cognizability that the Court has asked us to brief and argue, we have to ask ourselves whether habeas corpus should be available.

This was raised of course in the concurring opinion in Schneckloth versus Bustamonte and there, when the Court -- when Justice Powell writing the concurring opinion, cites in footnote 16, Professor Amsterdam on certain finality interests that are to be -- that were to be concerned with in attempting to limit the Federal Collateral Review.

Justice Powell, realizes of course that Professor Amsterdam was talking about Federal Collateral Review for federal prisoners and not state prisoners --

Unknown Speaker: That was the covenant (ph) case?

Mr. William C. Cunningham: Right, and Professor Amsterdam was very careful I think to make the point that he did not think that those considerations need apply to state prisoners in seeking federal collateral review of their claims, based upon Federal Constitutional violations.

The next year in 1965, Professor Amsterdam wrote a considerably longer and exhaustive article, criminal prosecutions affecting federally guaranteed civil rights, discussing removal there and habeas corpus petitions to avoid state court actions.

And I understand him to argue from that law review article the need there is, especially in state court proceedings, for some sort of federal monitoring at Federal District Court and Circuit Court level of the application of Federal Constitutional standard's defect situations.

Justice Potter Stewart: Of course, this question could not have arisen before the decision in Mapp against the United States?

Mr. William C. Cunningham: No, You Honor, no.

Justice Potter Stewart: Except in a Rochin type situation?

Mr. William C. Cunningham: Yes sir.

Justice Potter Stewart: And Mapp was decided when, about 1961?

Mr. William C. Cunningham: 1961, Your Honor.

Justice Potter Stewart: And this question could not have possibly have risen until then and the Mapp opinion and I do not, I only read it recently, was four members of the Court joined it and the fifth, Justice Black, joined it only on the basis that involved compulsory self incrimination rather than purely a Fourth Amendment?

Mr. William C. Cunningham: Yes, Your Honor.

But I take it that ever since then --

Justice Potter Stewart: It was followed?

Mr. William C. Cunningham: It has been followed and that the Circuit Courts have consistently applied it and the Federal District Courts, and so is this Court.

Justice Potter Stewart: But this all, this problem could not have arisen, and therefore, at the earliest it goes back to the decision in Mapp against the United States?

Mr. William C. Cunningham: Indeed, Your Honor, yes sir.

Justice Potter Stewart: And then there was a conflict I gather on the Circuits after Mapp, as to whether or not this kind of a claim of Fourth Amendment claim, type claim, was available on Federal habeas corpus in reviewing a state conviction?

Mr. William C. Cunningham: Right, Your Honor.

Justice Potter Stewart: And that was never, it was rather only rather implicitly resolved in this court was not it, because Kaufman involved a federal review of a federal conviction?

Mr. William C. Cunningham: 2255.

Justice Potter Stewart: And it was not until, what case --?

Mr. William C. Cunningham: I would say, Your Honor, in this Court’s treatment of Linkletter, this Court took from the Fifth Circuit in 1963 a habeas corpus case and in 1965, this Court took jurisdiction in Linkletter versus Walker and decided the case on its merits.

This Court could not have taken jurisdiction if there had not been jurisdiction in the courts below.

Justice Potter Stewart: (Inaudible) the court dealt with -- in Linkletter was its retroactivity?

Mr. William C. Cunningham: True enough.

Justice Potter Stewart: The retroactivity of Mapp?

Mr. William C. Cunningham: True.

But it was a habeas corpus case.

Justice Potter Stewart: It could not have -- so that was just, it was implicitly a sub silentio if you will, adopted this rule by this Court without any explanation or explication or maybe realization?

Mr. William C. Cunningham: Other District Courts, the District Courts of Appeal for example in Thornton versus the United States, the District Court of Columbia realized the distinction there was between a federal prisoner seeking federal review and a state prisoner, and allowing, in the opinion in that court, that state prisoners should have this device of reviewing a state conviction against them.

Justice William H. Rehnquist: Mr. Cunningham, I suppose you could turn that argument around in view of all that we have said about comity and federalism, in cases like Younger and Osche (ph), and say that even though it is perfectly proper to have a federal collateral review of a federal conviction within a unitary system, perhaps the same principle ought not to be -- ought not to obtain where you are talking about a federal system with a federal court reviewing a state conviction?

Mr. William C. Cunningham: I know how sensitive that the court must be to questions of comity like that, and I have read your opinion for the Court in Huffman versus Pursue, seeing what I could get from it and although I read two paragraphs and a very careful footnote, I still could be led to the conclusion that, Your Honor decided or there writing for the Court, allowed that if indeed there would be subsequent criminal prosecution, which at that time was threatened, that if a federal constitutional claim was in question that the proper time to review it would have been in collateral federal habeas corpus review of a state court conviction later on, but not to stop the process before it began.

And so, I have construed Huffman versus Pursue to say at least that.

Justice William H. Rehnquist: Well, certainly one would not necessarily treat all constitutional claims the same I suppose, but, that is perhaps right to counsel and that type of thing might be treated differently than Fourth Amendment.

All I am suggesting is that while certainly by the argument you make that it is more important when a Federal Court is reviewing a state conviction than when a Federal Court reviews a federal conviction, you can say just the opposite in view of the federalism considerations?

Mr. William C. Cunningham: True enough, but I would think that it is easy to understand that the State Court's primary allegiance could be to the enforcement of their own criminal law.

They stand responsible to do that and to review questions of state law and their own criminal statutes and the imposition of them and in matters that come before them, correctly or not.

But that Federal Courts are to remove from that if we are to guarantee federal supremacy of the federal law, are better circumstanced to look dispassionately upon a question that might involve an alleged violation of federal constitutional standards.

Justice Potter Stewart: Well, that statement has been made many times, including an opinions of this court, so you are more or less in good company, but does not then -- on what basis can one denigrate the State Courts of this Country in that way, to say that they do not have the same kind of understanding of the federal constitution, nor that they, if they understand it, they are reluctant to follow where their understanding leads?

That may once have been true in parts of the country a hundred years ago and it may have even been true more recently in other parts of the country, but what basis is there for making that kind of an assumption?

Mr. William C. Cunningham: To make such a broad indictment I think, Your Honor, would be irresponsible.

I do not want to believe that a single state court judge would set out maliciously to deprive anyone of a state court -- of a federally constitution -- a federally guaranteed constitutional right.

And yet, when I look for example, if this Court could refer to page 117, I believe of the respondents brief, we attempted to -- 119, excuse me, at footnote 5, we attempted to take the record of the State Supreme Court in Nebraska, in reviewing whether or not a warrant, search warrant was sufficient in a State Supreme Court.

And the Court will note there that in a number of occasions, the warrant was sustained by the State Supreme Court, that certiorari was denied on direct review by this Court and that on Federal Collateral review, the Eight Circuit Court of Appeals had found the warrant to be insufficient.

Justice William H. Rehnquist: And why does that mean, that does not necessarily mean that the Eight Circuit was right and the Supreme Court of Nebraska wrong, does it?

Mr. William C. Cunningham: I could not argue that, Your Honor, but for example from 1961, post Mapp, when I conducted that search of cases, I find only one time that the State Supreme Court of Nebraska held a warrant to be insufficient and that was in 1975 in State versus Kelos (ph), where there was a laps of nine months between the facts alleged to establish probable cause in the issuance --

Unknown Speaker: Is not it irrelevant statistic, the number of times that state trial courts have held warrants insufficient, those that were probably not appealed?

Mr. William C. Cunningham: Right, and that would be difficult to find, Your Honor.

And --

Unknown Speaker: You are dealing with very, very sketchy information is what I am suggesting when you just point to one Supreme Court opinion?

Mr. William C. Cunningham: True enough.

But for example, with my new specificity in this case, we see what a State Supreme Court and State Lower Court did with a warrant, so wanting in probable causes to leave no doubt in the mind of four Federal Court Judges in very careful opinions and exhausting -- exhaustive, painstaking evidentiary hearings to find that there simply was no basis for the warrant that was based, quite frankly as the officer testified upon his speculation.

That is neither reasonable, good faith nor probable cause.

Chief Justice Warren E. Burger: Your footnote that you have just referred to, establishes just one thing and that is that the Eight Circuit is a little more final than the Supreme Court of Nebraska because it is subsequent, does it really establish anything else at all?

Mr. William C. Cunningham: It does I think, Your Honor, and that is the point before that I was making when I said that I would want the facts in this case amplified by what carefully was led out in testimonies, warrant testimony, affidavits, with an opportunity to cross-examine in the lower district court and that --

Unknown Speaker: (Inaudible) that had, there not been habeas remedy available in this case, and the respondent here were limited to direct review in this Court.

You are suggesting I gather that there would have been no record upon which we could properly have evaluated the merit of the Fourth Amendment --

Mr. William C. Cunningham: Indeed, and then if we are, Your Honor, to take away federal habeas corpus review under 2254 at the lower district court and circuit court level and to impose that duty upon an already burdened Supreme Court in terms of direct review, add to that an inadequate factual presentation or record --

Justice William H. Rehnquist: Does not Nebraska have a motion to suppress proceeding where you could make the same sort of factual join that was ultimately made before Judge Urbam?

Mr. William C. Cunningham: I believe indeed, there was such a hearing in this case, and I believe that the officer, or the impartial magistrate who issued the warrant then held a hearing.

Justice William H. Rehnquist: But he was a municipal court judge in Douglas County, that would not be the Judge before whom a case was tried, was it?

Mr. William C. Cunningham: I believe there was preliminary hearing and that he had occasion to review the warrant that he had issued.

Justice William H. Rehnquist: Well, does the defendant have a right to renew the claim in the District Court, the State District Court where it is being tried?

Mr. William C. Cunningham: Yes, Your Honor and I believe that all stages of the proceedings, the lawyers who were then representing him urged that motion to suppress and unsuccessfully.

Justice William H. Rehnquist: Well, why should not he have had to make a factual showing at that time?

Mr. William C. Cunningham: I certainly -- were I the State Court Judge and knowing that some sort of direct review was possible would want to have had a complete record, but I submit that the record was only completed for one reason or another and I know not why really when it came to the Federal District Court and Judge Urbam began to ask questions, like the questions that were answered very candidly at page 54, 55 and 56 of the respondent’s brief.

Justice Thurgood Marshall: (Inaudible) state court?

Mr. William C. Cunningham: Yes, Your Honor.

Unknown Speaker: (Inaudible) the case from, from Nebraska case being Nebraska actually?

I do not know whether the situation has changed.

One of the problems as I recall the trouble was then, was that too many States no longer -- did not yet have adequate collateral procedures because I remember Nebraska adopted one, three or four days, before case Nebraska was to be argued here and I do not know how its function since, I do not if what you tell us about this case, at least to this case it has not functioned too effectively?

Mr. William C. Cunningham: It seems not, Your Honor.

Justice Byron R. White: Well (Inaudible) towards, then the Fourth Amendment issue has been once presented to the state courts, it is not -- a lot of states would not let you in their collateral proceeding just to take up an issue that has already been presented to its courts, is not that true in Nebraska?

Mr. William C. Cunningham: Your question again, Your Honor, I am sorry.

Justice Byron R. White: Suppose a suppression motion has been made and the Fourth Amendment issue has been passed upon by Nebraska Trial Court, and the claim has been rejected, and that judgment was affirmed in the Nebraska Supreme Court, state collateral proceedings are not then available, I take it?

Mr. William C. Cunningham: No.

Justice Byron R. White: And, for exhaustion purposes it is not necessary to attempt to --?

Mr. William C. Cunningham: No, not under the decisions of this Court.

The respondent had a right to go --

Justice Potter Stewart: (Inaudible)

Mr. William C. Cunningham: Indeed.

And did --

Justice Potter Stewart: Once the state court has dealt with the issue, that is enough for the, federally?

Mr. William C. Cunningham: It is true.

Unknown Speaker: Well I gather then (Inaudible) the prospect is that in Nebraska we are not like we are the only court, only federal court, to review the federal constitutional claim.

We are not like to ever to get a record adequately to do that?

Mr. William C. Cunningham: It certainly would not happen in this case, Your Honor.

Justice Byron R. White: What about a motion to suppress?

Excuse me, excuse me, I guess it depends on how you -- on how you look at the record that has been made in the state court?

Mr. William C. Cunningham: I suppose one has to think about who conducted the hearings and the length of time, the remove there was from the emotive situation within which --

Justice Byron R. White: The Congress has established some rule as to when on federal collateral you have a hearing and you have to find some, supposedly find some defects in the state procedure before you proceed with the federal hearing, but if you do find those defects that is -- that is the benchmark for when you have a federal hearing, is that right?

Justice Thurgood Marshall: (Inaudible) understood you, I thought you have said you could bring the exact same question again in the state court?

Mr. William C. Cunningham: I would take it by a motion to suppress you could and if you could have --

Justice Thurgood Marshall: (Inaudible)

Mr. William C. Cunningham: If you could have an evidentiary hearing.

Unknown Speaker: (Inaudible)

Mr. William C. Cunningham: I suppose so, yes, Your Honor.

Justice Thurgood Marshall: And all of that would be in the record, we would have the exact same record we have got now?

Mr. William C. Cunningham: I am not sure of that, Your Honor and I cannot be because what accounts for the testimony then that led to the issue on the search warrant, which the court has in the appendix at page 10, and the subsequent testimony of First Sergeant Fifer (ph) and then Lieutenant, and then --

Justice Thurgood Marshall: (Inaudible) you have done in the suppression here?

Mr. William C. Cunningham: It was not --

Justice Thurgood Marshall: (Inaudible) it was not, I said could if?

Mr. William C. Cunningham: If -- the same questions might be asked if the --

Justice Thurgood Marshall: Is there anything on this record that could not have been put in on motion to suppress?

Mr. William C. Cunningham: Other than what I would say would be the candor of the officers who testified at the evidentiary hearing and said that it was based upon speculation.

It appears in the search warrant, not upon speculation, but sworn testimony furnishing probable cause.

Justice Thurgood Marshall: On the testimony in the suppression hearing?

Mr. William C. Cunningham: Yes, Your Honor, but reviewed by a state court not by a federal court.

Justice Thurgood Marshall: It is reviewed by this court?

Mr. William C. Cunningham: If -- if you had an adequate record before you.

Justice Thurgood Marshall: I say, could you or could you not have an adequate record?

Mr. William C. Cunningham: If they gave candid answers, Your Honor, yes?

Chief Justice Warren E. Burger: What kind of answers would be less, more or less candid before the United States District Judge as compared with a State Court Judge of Nebraska?

Does not this depend on the lawyer more than on the judicial officer?

Mr. William C. Cunningham: Perhaps to some extent, Your Honor, and the thoroughness with which he conducts an examination and yet I note that in answer to a question, by Judge Urbam, the officer who had before furnished the information, which led to the issuance of the search warrant said in answer to this question; “Did you have any report from anyone that Dwaine Peek was then inside the Rice house or had been inside the Rice house that day” and this is at page 54, his answer, “No Sir, the only thing we had was a speculation because it was a known house of that particular group and he was a member of that group and it was a place where he might possibly be.”

That is a wanting in good faith, reasonableness or probable cause that I think it took everyone by surprise at that hearing.

Whether or not --

Chief Justice Warren E. Burger: But Urbam’s cross examination was a little more effective than defense counsel’s cross examination in the state courts?

Mr. William C. Cunningham: Precisely, Your Honor.

Chief Justice Warren E. Burger: Is that good as the system or is it the subjective factors of the idiosyncrasies and talents of the lawyer?

Mr. William C. Cunningham: It might have been an accident of history or chance in this particular case, but nonetheless upon questioning, that answer was elicited from this officer.

Justice Potter Stewart: What page?

Mr. William C. Cunningham: Page 54, Your Honor, the respondent’s --

Justice Potter Stewart: Of your brief?

Mr. William C. Cunningham: The respondent’s brief.

Justice Thurgood Marshall: If that judge had been on the state court, everything would have been alright?

Mr. William C. Cunningham: [Laughter] and elicited that question and that answer, Your Honor.

Justice Byron R. White: (Inaudible) if this hearing had had the same scope than the State proceeding, then maybe the State Supreme Court would have decided the case the same way the Eight Circuit did?

We do not know, do we?

Mr. William C. Cunningham: We do not and we would have to speculate on that, Your Honor.

Unknown Speaker: (Inaudible) going out only to this system --

Mr. William C. Cunningham: Yes.

Unknown Speaker: -- holding the inadequacy and everything else to the state procedure.

If the only Federal Court, if the only Federal Court to review the federal constitutional claim is this Court, if that is the system, what bearing if any the valid or nature of our discretionary jurisdiction have on its inadequacy as a system?

Mr. William C. Cunningham: I would, if sitting where you were, be terribly worried that I would have inadequate records before me, that already pressed by work that will be pressed by more work, that I might, by a decision, take up jurisdiction that has been given by the constitution to Congress, that I would have to make a break with four or five decisions passed on by this Court and relied upon by countless litigants and that anything so cataclysmic changing the scope of habeas corpus could be better be done by well considered program legislation dealing with all those things.

If Congress wants to change the scope of habeas corpus in the hearing, in lower federal courts, this Court, Congress and the Constitution seems to guarantee and has up until this point, then it should be done by Congress that this Court --

Chief Justice Warren E. Burger: The unarticulated premise of your whole position, I take it must be, but you tell me if that is not so, that the case presented by this record, where a man who has set a booby trap with dynamite in a suitcase, in pursuit of his own objectives, obviously criminal if we believe this record, is to get off scotfree and that that is an appropriate price to pay for mistakes in a warrant application or in the granting of that application by a judicial officer in Nebraska.

hat that is a reasonable and an appropriate price to pay and if that is the only way that we can accomplish that result; is that a fair statement of the, what underlies your position?

Mr. William C. Cunningham: I would not say that.

I would say in answer to that you have touched upon the point raised initially in Justice Powell’s concurring opinion in Schneckloth, which is, is there a colorable claim of innocence.

The State of Nebraska has said that no claim, much less colorable, had ever been made by the defendant, the respondent in this case in any real way.

That has been a matter of tremendous concern to him and to his lawyers.

Justice Powell, in the concurring opinion in Schneckloth says, at page 257, that guilt or innocence had never been part of the consideration, the proper consideration in granting habeas corpus or not and at page 115 and 116 of the respondent’s brief, we discussed that your repeated attempts, and especially in the fourth footnote at those pages, the repeated attempts by the defendant to claim his innocence, there is in the record before this court a confession to that suitcase bombing by Dwaine Peek, who later recanted his confession and then named David Rice and Edward Poindexter who happened to be the President and Minister of Information of the local Black Panther Party.

Chief Justice Warren E. Burger: Testified against them in the trial?

Mr. William C. Cunningham: And he at that time was under first degree murder charges and subsequent to the trial saying that no deal had been made, was treated as a juvenile delinquent and has not been seen since.

Chief Justice Warren E. Burger: 17 years old at that time, was he not?

Mr. William C. Cunningham: Correct, Your Honor.

Chief Justice Warren E. Burger: Well, now taking the whole record, however, as it was accepted by the Jury and in the Trial Courts --

Mr. William C. Cunningham: Yes Sir.

Chief Justice Warren E. Burger: Is it not a fair statement that this man, if you adopt Justice Cardozo’s statement, is to go free because of the constable blunder, or is not that fair?

Mr. William C. Cunningham: I understand, I am familiar with from People versus Defore, Your Honor, but I would say that the man is not to be imprisoned if the trial at which he was tried was wanting in federal constitutional guarantees, if the trial was unfair.

In July of 1974, the District Court in Lincoln said that he must be retried or let go within 90 days.

All of those mandates were stated by the Eight Circuit, the Eight Circuit Court affirmed, and so for 19 months, so the petition for habeas corpus has been granted and we know that this man has in the judgment of four Federal Court Judges have been tried unfairly, that the issue then innocence is still open.

Chief Justice Warren E. Burger: By the standards that have existed up to this time on the exclusionary doctrine?

Mr. William C. Cunningham: Indeed, Your Honor.

Chief Justice Warren E. Burger: But if the fundamental proposition of the validity of the exclusionary doctrine is found and determined now, not to be warranted by the constitution, then the ball bounces the other way, does not it?

Mr. William C. Cunningham: Yes, Your Honor, that is Parts II and III --

Chief Justice Warren E. Burger: Or in the alternative in what the Attorney General described as one of his alternative positions, if that is an issue that cannot be raised in federal habeas corpus at all, then I am sure the result follows?

Mr. William C. Cunningham: Yes.

Justice Lewis F. Powell: In line with the comments of the Chief Justice, is it your view that the exclusionary rule is compelled by the constitution?

Mr. William C. Cunningham: It is traditionally created of course, Your Honor, and it gives effect to the Fourth Amendment.

I believe it is compelled.

Justice Lewis F. Powell: (Inaudible)

Mr. William C. Cunningham: If Congress is going to take it away procedurally by denying federal habeas corpus, then I think that that is for Congress to do.

But I think that for example, when a court allows evidence to be placed before it, that they know has been seized in contravention of the constitution, that we approach something very much like Shelly versus Kramer (ph), that the Court -- that the State, if it be a state prosecution, is in some way in complicity in allowing illegal activity to be become the basis for a prosecution.

Justice Lewis F. Powell: (Inaudible) what we have said in Calandra, with respect to the constitutional status of the exclusionary rule?

Mr. William C. Cunningham: Yes, Your Honor.

Justice Lewis F. Powell: And is it your view that the constitution requires that that rule be enforced fully with every guide to the circumstances, have a technical evaluation of the Fourth Amendment maybe?

Mr. William C. Cunningham: As a general proposition, yes.

But even in the fact--

Justice Lewis F. Powell: Any and all circumstances, the constitution requires that evidence illegally seized because of the defective warrant or otherwise, cannot be employed, or admitted in the trial?

Mr. William C. Cunningham: I think that is the only realistic thing because --

Justice Lewis F. Powell: Any basis in that in history of our Country or prior to Mapp, any basis whatever?

Mr. William C. Cunningham: Unless it be Shelly versus Kramer, in which we do not want the Court acting through its judicial arm --

Justice Potter Stewart: (Inaudible) certainly suggested your answer, it could have been decided the way it was, unless it was constitutional, although prior to Mapp, as my brother Powell has pointed -- implied in his -- in his question under -- under the regime of Weekes against the United States, it was always thought to be a ministerial rule of evidence.

Mr. William C. Cunningham: But this court has a notion --

Justice Potter Stewart: But it was made constitutional, it had to be or it could not have been imposed upon the States.

It had to be something beyond this court’s supervisory power?

Mr. William C. Cunningham: And then the decisions in Katz begin to --

Justice Lewis F. Powell: Safe Streets Act of course it is congressional, but has not Congress enacted the exclusionary rule in the Safe Streets Act both as to violations of an Act by state officials as well as by federal officials?

Mr. William C. Cunningham: I would think so.

Justice John Paul Stevens: Your rationale is the correct one, can you, that is the Shelly versus Kramer approach, can you possibly justify the limitation on standing have it only the defendant who can raise the issue, would it not be necessary under that rationale that the point be available to the defendant, even though it was some third parties’ rights who were invaded by the search?

Mr. William C. Cunningham: Right, indeed in this case, Your Honor, the codefendant, David Rice has sought now unsuccessfully in the lower federal district court before the same Judge Warren Urbam, to raise the point about the unconstitutionality of the search and Judge Urbam has held that he did not have the requisite standing to raise the issue over the introduction of the evidence in a common trial against him of that evidence that was --

Justice John Paul Stevens: Holding maybe correct under Alderman, who would be inconsistent with your analysis?

Mr. William C. Cunningham: Yes, Your Honor.

Justice Potter Stewart: You have suggested I think that this had, that the exclusionary rule had something to do with a fair trial and I think some of my colleagues implicitly accepted that suggestion, that at least so long as the exclusionary rule existed it had something to do with a fair trial.

Do you really think so?I never understood so.

I had always thought that it had to do with quite a different constitutional value, i.e. enforcement of the protections of the Fourth Amendment which by their terms have nothing to do with a trial, fair or unfair, they have to do with unreasonable searches and seizures and in so far as a probative, relevant material evidence is excluded from a trial that leads to unfairness rather than fairness, does not it?

Mr. William C. Cunningham: I would, You Honor --

Justice Potter Stewart: Because anything that impairs the search for truth impairs the search for justice and certainly anything that excludes, any rule that excludes relevant material, prohibitive evidence impairs the fairness of a trial because it impairs the full disclosure that a trial is supposed to accomplish, does not it?

Mr. William C. Cunningham: Yes.

Your Honor, I would not want to read the Fourth Amendment just by itself.

I would want to include the Fifth Amendment as well and say that the fairness of the hearing is going to be measured, not just by whether or not there has been a technical Fourth Amendment violation, but whether or not the whole trial, including the introduction at the evidence, the opportunity to cross-examine the people who introduce the evidence and all of the procedural safeguards for Due Process --

Justice Potter Stewart: Compulsory of self-incrimination part of it?

Mr. William C. Cunningham: Or to Due Process, Your Honor.

Justice Potter Stewart: Or both?

Mr. William C. Cunningham: Both.

Justice William H. Rehnquist: Certainly the Eighth Circuit did not make any finding that there had been any independent Fifth Amendment Violation?

Mr. William C. Cunningham: No, Your Honor.

Just a straight violation of the Fourth Amendment.

Justice William H. Rehnquist: Well, are you contending that they should have made such a finding?

Mr. William C. Cunningham: No, I think their opinion as it stands is perfectly adequate.

Justice Potter Stewart: But I, just to go back, I thought the whole point of the Linkletter, or at least a big part of the point of the Linkletter opinion, was that the exclusionary rule did not have anything to do with the fairness of a trial and in so far as it did have anything to do with a fairness of a trial, the exclusionary rule impaired the fairness of a trial?

Was not that point of the Linkletter opinion, in saying that the Mapp rule was not to be retroactive?

Mr. William C. Cunningham: Yes, Your Honor, but I cannot see that the introduction into evidence in any proceeding, State or Federal --

Justice Potter Stewart: Probative material evidence, (Voice Overlap) evidence that would clearly be admissible, except because of the way it was obtained by the prosecutor?

Mr. William C. Cunningham: Yes, because I regard, Your Honor, the totality of the process, including the trial and subsequent appeals, all of them, whenever allowed, to be part and parcel of the whole process to determine guilt or innocence and that until that be, until that course be run, we do not know whether we have something that is relevant or irrelevant to that issue.

Chief Justice Warren E. Burger: Mr. Cunningham, Mr. Justice Stewart has given rise to one view and I would not undertake to say whether it is the majority view or not of the function of a trial, that is a search for truth, but are you not by implication articulating the contrary view that the trial in a criminal case is a search for admissible truth, admissible truth, not truth in the abstract?

Mr. William C. Cunningham: No, Your Honor.

I would want to say that any legal proceeding in its best aspect is precisely a search for truth.

Chief Justice Warren E. Burger: That and except then the -- one of these two alternatives is that then surely you must agree with Justice Stewart that the exclusionary rule frustrates, defeats the search for truth as this case so richly demonstrates?

Mr. William C. Cunningham: If the subsequent hearings had not been held in this case, and the Federal Court had had not had revealed to it the real circumstances that lay behind the issuance, the application for an issuance of the search warrant, we would have no check upon this whole procedure and I cannot believe that the state --

Chief Justice Warren E. Burger: (Inaudible) procedure, not on substance, it is a check on procedure to seek to it that the only evidence that comes in is evidence acquired in accordance with constitution as construed by this Court?

Mr. William C. Cunningham: Yes, Your Honor.

Chief Justice Warren E. Burger: So that as a result, ultimately, Justice Cardozo’s prophecy came true that on some occasions, the Federal Courts have excluded the actual evidence of the body of the murder victim because of the way in which the police learned the location of the concealed body, is that not true?

Mr. William C. Cunningham: That has happened, Your Honor and I think the Eight Circuit Court of Appeals faced that issue squarely at the end of their opinion when they said that we consider it necessary to point out that the record discloses a widespread search for the suspect Peek and Poindexter, which events at least a negligent disregard by the Omaha Police for constitutional rights of not only petitioner, but possibly other citizens as well.

Such a police search is at least reminiscent of police conduct condemned in Langeford versus Gilstone (ph).

Chief Justice Warren E. Burger: Have to do with the core of this case?

Mr. William C. Cunningham: I think, Your Honor, they said that though they found evidence, some evidence of guilt, the whole procedure because of the introduction of this evidence on an invalid warrant, invalidated the whole proceeding and that in order to be fair, one has to go back and try the case without the introduction at the evidence -- of this illegally seized evidence.

Chief Justice Warren E. Burger: Dynamite and the caps and all that sort of thing?

Mr. William C. Cunningham: Yes, Your Honor.

It is entirely possible that that dynamite could have been planted.

Chief Justice Warren E. Burger: The dynamite fragments in the cuts of his pants planted too?

Mr. William C. Cunningham: Could have been, Your Honor.

Justice William H. Rehnquist: That is quite a different question whether it was illegally seized.

I mean, there is no connection between the claim that it might have been planted and the claim that it was illegally seized, is there?

Mr. William C. Cunningham: Collaboration was necessary for an admitted accomplice in the murder, Dwaine Peek and collaboration was found in what later proved to be, according to the District Court and the Circuit Court of Appeals, an illegal and unconstitutional search, but it furnished the collaboration for the State Court in affirming that conviction.

Quite simply collaboration was needed for Dwaine Peek and it came as the result of an illegal search.

Justice Lewis F. Powell: (inaudible) you, but this is a very important case and you are very well prepared on arguing it, very well indeed.

I want to come back to question I have asked you as to whether Congress had authority to change the exclusionary rule which you view as required by the constitution.

If I understood your answer correctly, you have said that Congress could change the habeas corpus jurisdiction of the Federal Courts.

I myself do not think it is necessary to do that for this purpose, but put that aside, are you saying that Congress have no authority to modify in any respect or to revoke the exclusionary rule in the federal courts?

Mr. William C. Cunningham: I believe, Your Honor, I have to say that they had the power to do that.

Would they have to --

Justice Lewis F. Powell: The constitutional requirement?

Mr. William C. Cunningham: My question is would they have to amend the constitution to do it?

Unknown Speaker: (Inaudible)

Mr. William C. Cunningham: Right, right, I realize that --

Justice Lewis F. Powell: (Inaudible) there cannot be a constitutional amendment to change a judge-made rule, that was not even extended to the states until 1961?

Mr. William C. Cunningham: Which is, and this Court’s decisions putting it as part and parcel of the Fourth Amendment.

Justice Lewis F. Powell: And you read, you find all of this in the language of the Fourth Amendment?

Mr. William C. Cunningham: [Laughter] no, Your Honor.

Justice Potter Stewart: (Inaudible) Mapp against Ohio?

Mr. William C. Cunningham: This -- other decisions of this Court and the extension of the right of privacy too in your subsequent decisions.

Justice Lewis F. Powell: Four Justices at that time, but more than four since then have said it is not a constitutional requirement, in Calandra for example.

Mr. William C. Cunningham: Yes, Your Honor.

Justice Potter Stewart: Is it constitutional requirement, I suppose it is really no different than the right to counsel which has developed over the years that is also constitutionally compelled, is not it?

Mr. William C. Cunningham: As well as other constitutional rights that we have taken from the bill of rights, but not mention specifically --

Justice John Paul Stevens: (Voice Overlap) is what I am suggesting?

Mr. William C. Cunningham: The right to privacy, the right to freedom of association, things like that that the Court has seen and interpreted from the constitution.

One final thing I would remiss --

Justice Lewis F. Powell: Have the trier of facts in litigation to an opportunity to consider the most relevant evidence on the issue of truth which you say is the object of trial?

Unknown Speaker: (Inaudible)

Justice Potter Stewart: The other, which one?

Unknown Speaker: Privacy.

Mr. William C. Cunningham: Privacy --

Unknown Speaker: Both --

Mr. William C. Cunningham: I think in Katz for example, when we said that the evidence might have been tremendously relevant, but there was a rightful expectation of privacy and although there had not been a physical intrusion, that right of privacy was sufficiently broad to be protected by the introduction of admittedly relevant evidence and so too in this Court’s decision in Rochin versus California.

Everyone knew that he had illegally seized or possessed morphine in his stomach.

It was the way they went about getting it that shocked the conscience of the court and led us to say that Due Process guarantees at least that kind of a proceeding free from that kind of taint.

Unknown Speaker: (Inaudible)

Mr. William C. Cunningham: I beg your pardon?

Justice Lewis F. Powell: Telling the truth is really not always the objective, the primary objective in litigation in our Courts?

Mr. William C. Cunningham: No it should be, Your Honor, it should be.

Justice Lewis F. Powell: Trials, devote more time to trying the police than they do the defendant?

Mr. William C. Cunningham: [Laughter] an unfortunate distraction, but to leave them less than wholly cross-examined I think would be sort of remiss too.

Chief Justice Warren E. Burger: I think your reference to Rochin, inevitably brings up the question of Schmerberg case, where it did not shock the conscience of the court to put a needle in the man’s veins and withdraw a sufficient amount of blood to determine the alcoholic intake of the man at that period.

So that -- does that not suggest that even at the risk of oversimplification that the same processes which brought new light on the constitution, let us as say 20 years ago, might bring new light on the constitution today?

Mr. William C. Cunningham: Indeed, the constitution I think must continue to grow and to be interpreted.

I remember, Justice Douglas in an answer, in a colloquy over a paper called, “Two Faces of Federalism” saying that he found it difficult to describe Due Process, but Justice Holmes had approached it one time, in a letter not an opinion, in which he said if what happened generally makes you want to vomit is usually a deprivation of Due Process of law, but some have stronger stomachs than others.

Unknown Speaker: (Inaudible) reserve the situation -- procedures which would could make you want to vomit?

Mr. William C. Cunningham: Right, exactly and if medical science has advanced to the point where we can take from a person unconscious a sample of blood and achieve some sort of evidence, then perhaps you know, we had a tolerance for that at time and may not later.

The only thing I would like to say, Your Honor, and I know that we have had ample time here, is that, if this Court sees fit either to cut down the extent of the writ of habeas corpus, the reach of it, and if they see fit or see fit to adopt new rules for a search, reasonableness, good faith of the policemen, whatever it may be, if the Court does this, my client must not be penalized for taking the decisions that were the law at that time seriously, nor must the Eight Circuit Court of Appeals be penalized for taking the decisions of this Court seriously because a proceeding has been conducted and to know tell him at this stage of the game that he has pursued the wrong avenue --

Chief Justice Warren E. Burger: Penalty when we reverse another court Mr. Cunningham, [laughs] (inaudible) might just welcome the ultimate justice?

Mr. William C. Cunningham: Right.

Yes, Your Honor.

Thank you.

Rebuttal of Melvin Kent Kammerlohr

Mr. Melvin Kent Kammerlohr: Let me have a minute, Your Honor, just to clarify a couple of points.

Unknown Speaker: (Inaudible)

Mr. Melvin Kent Kammerlohr: First I would like to pint out that even though the counsel claims that Mr. Rice makes some claims of innocence, what Mr. Justice Powell was talking about and Mr. Black -- Justice Black and Harlan and Stewart in the Bustamante case and the Kaufman cases was a claim under the Fourth Amendment.

We are talking about the Fourth Amendment in that if habeas corpus were allowed in Fourth Amendment, it would reveal a colorable claim of innocence, then they should preserve it in those cases, but not a claim of innocence based on something that is not under the Fourth Amendment.

I do not believe that is the whole or the suggestion of those opinions --

Justice John Paul Stevens: Justice Harlan advocated the claim of innocence position in Kaufman?

Mr. Melvin Kent Kammerlohr: No.

Justice John Paul Stevens: I do not think that is true?

Mr. Melvin Kent Kammerlohr: I believe he did not limit it to that, he did not limit it to that at least, but I am just suggesting that it means a claim of innocence under the Fourth Amendment not a claim of innocence, say for insufficient evidence that the jury has already ruled against it.

It is which what he is arguing here that maybe the jury was wrong, but not would be remedied any by a Fourth Amendment claim and habeas corpus.

Another point I would like to point out to the Court the motion for suppression in this case was handled by the federal -- by the State District Court, not the magistrate who issued the search warrant.

The magistrate issued a search warrant then the case came to the trial court level, which is a jury trial level in Nebraska.

And the motion was made in that trial court, the same court who later held the trial, the same judge.

Justice Potter Stewart: Under your Nebraska practice, is it the custom is to make the motion before trial?

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

Justice Potter Stewart: Not at the time (Voice Overlap) the proper of the evidence?

Mr. Melvin Kent Kammerlohr: That is correct.

Justice Potter Stewart: Although I suppose it could be done at the later time too.

You have objected to the evidence?

Mr. Melvin Kent Kammerlohr: We have a procedure for a interlocutory appeal from a motion to suppress to the State Supreme Court, and then I believe it can still, but I am not certain -- if it can still be brought up at the time of trial.

I would certainly think so --

Justice Potter Stewart: But the custom is to file a motion of suppress before the commencement of the trial?

Mr. Melvin Kent Kammerlohr: That is correct, and then --

Justice Potter Stewart: And that appeal is before the judge who is going to try the case or --

Mr. Melvin Kent Kammerlohr: Yes, generally speaking --

Justice Potter Stewart: -- or at least one of the --

Mr. Melvin Kent Kammerlohr: It has to be one of the District Court Judges.

Unknown Speaker: (Inaudible) cold case in Nebraska.

Nebraska adopted a counterpart of 2255 as its post conviction procedure, did it not?

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

Unknown Speaker: Is that still the one?

Mr. Melvin Kent Kammerlohr: That is still the one we have, Your Honor.

Unknown Speaker: And in this could there have been a proceeding under that remedy after the Supreme Court affirmed the denial of the motion to suppress?

Mr. Melvin Kent Kammerlohr: Not as concerning the search warrant.

Justice Potter Stewart: (Voice overlap) or is it because the state does not have a counterpart of the rule of the Kaufman case.

Does the State say we are not going to consider Fourth Amendment type claims on collateral?

Mr. Melvin Kent Kammerlohr: No, it would be because the Supreme Court of Nebraska had already decided the issue.

Justice Potter Stewart: And your collateral of remedy, state collateral remedy is limited to new questions?

Mr. Melvin Kent Kammerlohr: New questions, which have not been before the court.

Now, they might have brought up the search without the warrant -- in collateral proceedings, they did not.

Chief Justice Warren E. Burger: The Supreme Court decision on the issue is res judicata --

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

Chief Justice Warren E. Burger: -- and not -- as a consequence of that the collateral attack is barred on traditional grounds?

Mr. Melvin Kent Kammerlohr: I believe that is what would happen if someone brought back in the District Court a collateral proceeding, the District Judge would merely say this has all been decided by the State Supreme Court and the --

Justice Potter Stewart: You do not have a federal habeas corpus, you do not have a res judicata.

In other words, no 2255, something -- the Fourth Amendment claim might have been in a Federal District Court and considered by the, by United States Court of Appeals, nonetheless, unless I am mistaken, their remedy under Section 2255 is available to reconsider that claim, would it not, under the Kaufman rule?

Mr. Melvin Kent Kammerlohr: Under the Kaufman case if the identical question had been to this Court and ruled adversely, I do not --

Justice Potter Stewart: United States Court of Appeals where the conviction was affirmed, we are getting pretty far field?

Mr. Melvin Kent Kammerlohr: I do not see how it could, but --

Justice John Paul Stevens: What is Nebraska rule if there had not been a motion to suppress at the criminal trial?

Could the defendant raise the issue in the collateral proceeding in a state court, the Fourth Amendment question?

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

Justice John Paul Stevens: Because it is the fact that there was actually the question litigated that forecloses it.

It would not waive it by dealing to make the motion --

Mr. Melvin Kent Kammerlohr: At least, now Judge Urbam -- it is -- you are correct to the fact it was litigated.

Now, the other question, a search without the search warrant, which I brought up in the State Supreme Court, was not litigated there because they held the search warrant was valid, but Judge Urbam said that the fact the we briefed it in State Supreme Court was sufficient exhaustion in Federal Courts, which I disagree with also.

Chief Justice Warren E. Burger: You seem to assume, I was under the impression that the magistrate who issued the warrant was the same judicial officer who passed on the suppression motion, and you say that that is not correct?

Mr. Melvin Kent Kammerlohr: That is incorrect.

And another point that I think Mr. Cunningham brought up which highlights the bad part of having a habeas -- federal habeas corpus sitting years later is that when the evidentiary hearing was held before Judge Urbam some four years after the fact and the evidence is not clear at that time in the officer’s mind, they have had hundreds of cases probably since the time and one Lieutenant Perry testified at that evidentiary hearing four years later that he -- that Dwaine Peek had told them before they went to the Rice premises that the bomb was constructed there at the Rice premises and that Dwaine, his brother, had told him this.

Judge Urbam, and he -- then Judge Urbam is doing the questioning and he said, well how do you know that?

And he said, I was present when Officer Foxel (ph) interrogated Dwaine Peek and Judge Urbam then looked on the, a sheet they have at the police station that shows who was present at the interrogation, and Lieutenant Perry’s name did not appear on there.

So Judge Urbam arrived at the conclusion that Lieutenant Perry was perjuring himself, and I think he put a lot of weight on this and this is just one of the bad things that happened by hiring before you litter.

I say that Lieutenant Perry might have learned about in a number of ways and forgot how he learned about it, and it did not necessarily perjure himself.

Justice Byron R. White: (Inaudible) hearing in the state court and the record made, and the motion to suppress denial that a federal habeas corpus court is not supposed to hold a hearing of its own, unless as the statute requires it finds some defect in state court proceeding.

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

Justice Byron R. White: And what defect did Judge Urbam found -- find in the state court of suppression hearing?

Mr. Melvin Kent Kammerlohr: He did not -- he got in to the, he got in to it on the search without a warrant issue -- without a search warrant issue.

Justice Byron R. White: (Inaudible) hearing unless there was some --

Mr. Melvin Kent Kammerlohr: He did not hold an evidentiary hearing on the search warrant issue.

Once he found that the search warrant was invalid, the affidavit for the search warrant was invalid, then we raised issues that nevertheless the police had a right to be on the premises, then he held an evidentiary hearing on that question.

Justice Byron R. White: There had never been a hearing on that in the state court?

Mr. Melvin Kent Kammerlohr: No, Your Honor because the Supreme Court never reached that issue.

Justice Byron R. White: (Inaudible) the same that he was, he was -- he really cannot be saying that he was retreading ground that the state court had gone over because it had never gone over that ground?

Mr. Melvin Kent Kammerlohr: No, I am just, I am merely saying this shows that the police officer’s memories may get kind of dim after four years.

Thank you, Your Honors.

Chief Justice Warren E. Burger: Thank you Mr. Cunningham, thank you Mr. Kammerlohr.

The case is submitted.