UNITED STATES v. SANTANA

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Argument of Frank H. Easterbrook

Chief Justice Warren E. Burger: We will hear arguments next in 75-19, United States against Santana.

Mr. Easterbrook you may proceed whenever you are ready.

Mr. Frank H. Easterbrook: Mr. Chief Justice and may it please the Court.

This case presents the question whether police can make a warrantless arrest of a person who, they have probable cause to believe, has committed one crime only moments before and is still committing another crime, when that arrest requires a brief entry into the vestibule of a house.

We submit that the answer to this question is that a warrant need not be obtained.

Three independent arguments support our position.

Two of these arguments assume, arguendo, that a warrant ordinarily must be obtained to make an arrest inside a house.

We argue first that a warrant need not be obtained when a crime is in progress and the entry can halt that crime.

Second, we argue that a warrant need not be obtained --

Chief Justice Warren E. Burger: Do you mean when it is in progress, or when it is in progress and that fact is known or observed by the officer?

Mr. Frank H. Easterbrook: And when the officers have probable cause to believe that it is in progress.

Chief Justice Warren E. Burger: Just to be abstract without observation or without objective fact --

Mr. Frank H. Easterbrook: Unless it was known beforehand, if it just simply turned out that it was in progress, the after the fact justification would not be sufficient.

Second argument is that an entry should be permissible when it occurs within a few hours after a crime and during a time during which it might be supposed evidence might be disposed off.

We submit that the case can be decided upon either of those two grounds without reaching the general issue of when a warrant must be obtained to enter a house to make an arrest.

Justice John Paul Stevens: Let me state that second ground, you say when it is supposed evidence might be destroyed, is that not always true?

Mr. Frank H. Easterbrook: Our general argument in that regard is that during several hours after a crime, it should be reasonable to enter a house to make an arrest.

And that the general justification for that is that evidence might be destroyed during those first few critical hours.

Whether or not there is reason to believe that it will be destroyed in a particular case as we submit immaterial that the justification of reasonableness extends to those cases as a class and it is not dependent upon the facts of a particular case.

Justice John Paul Stevens: Is it dependent upon there being some likelihood that -- well, supposing you have a case in which the crime involves no other evidence other than just knowledge or reasonable cause to believe that a person say, committed a murder, but there is no evidence, you do not expect to find, does the evidence have any bearing and I understand –- I am quite following you?

Mr. Frank H. Easterbrook: Well, it would be difficult to understand.

There is often evidence that a murder has been committed and that evidence might dissipate.

In the case of Cupp against Murphy of course there were fingernail scrapings under the fingernails, type of evidence that might dissipate.

But our justification runs to crimes as a whole based upon the fact that they are often used evidence of crimes.

The problem with figuring out whether there is evidence in a particular case is, we submit, the best argument against requiring the officers to figure out whether there is or is not?

It is such a problematic inquiry and it depends so much upon the facts of a particular case.

It will be very difficult to require officers or indeed to require courts to make that kind of determination before or after the fact in a particular case.

The third argument is that it is always reasonable to enter a home to make an arrest with or without a warrant.

Justice Potter Stewart: At any time, day or night as per your argument.

Mr. Frank H. Easterbrook: Historically, that has been so Mr. Justice Stewart.

Justice Potter Stewart: I just wanted, what is your argument, what your position was?

Mr. Frank H. Easterbrook: Our position is that that still should be so, but it is of course not necessary to reach that question here because of the two independent grounds that I have begun to set out and also because this arrest took place during the day.

Our primary support for that is historicalness, Mr. Justice Holmes wrote, “Page of history is worth a volume of logic.”

But I do not intend to discuss that point further unless the Court has further questions about it.

Justice John Paul Stevens: I have just one.

On both of your second and you third justifications, probable cause that a crime has been committed by the particular suspect, also a probable cause that he is within the house?

Mr. Frank H. Easterbrook: Yes.

Justice John Paul Stevens: Both are required?

Mr. Frank H. Easterbrook: Both are required.

The facts of this case are not complicated.

A Philadelphia Narcotics Squad officer arranged to purchase heroin from Patricia McCafferty.

Patricia McCafferty told him that she would go down to Mom Santana’s for the dope.

The officer recorded the serial numbers of $110 in $10 and $20 bills and gave the bills to McCafferty.

McCafferty visited Santana’s house, spent a few moments inside, and returned to the officers’ car with heroin, but without the money.

The officer gave a hand signal to other officers, and McCafferty told him that Mom Santana has the money.

The other officers then drove in there van, the short distance to Santana’s house, intending to arrest her for her part in the crime and to recover the purchase money.

When the group of officers drove up in there van in front of Santana’s house, they saw her standing in the threshold of her doorway with a brown paper bag in her hand.

One of the officers recognized the person in the doorway as Santana.

The officers left the van and ran up to the walkway to the front door of the house.

There were approximately 15 feet between the curb and the doorway of the house, so it took about a moment to reach the threshold.

Meanwhile, Santana had turned and retreated into the interior of her residence.

One of the officers overtook her in the vestibule, as she was leaving the vestibule for the living room of the house.

Respondent Alejandro was in the living room.

When the officers overtook Santana they jostled her, and white packets, white packets filled with white powder, fell out the bag to the ground in the vestibule.

Santana ran from the living room, attempted to pick up the packets and attempted to flee.

Another officer subdued Alejandro and the arrest was completed in the vestibule.

Justice Potter Stewart: Now Mr. Easterbrook, you referred throughout this recital of the facts to these people as officers.

They were not federal officers, were they?

Mr. Frank H. Easterbrook: That is correct.

They were officers of the Philadelphia Police.

Justice Potter Stewart: They were officers of Philadelphia.

Mr. Frank H. Easterbrook: Yes.

Justice Potter Stewart: Does that make any difference or because Elkins against United States this is as though they were federal officers, is that it?

Mr. Frank H. Easterbrook: In our view, they must be judged as though they were federal officers, and because of Elkins and I would add to Elkins, the companion case, Rios, 364 U.S. 260 to 61 and most recently, Cady against Dombrowski, 413 U. S. 433 at 449.

Justice Potter Stewart: This is the same as though they were federal officers?

Mr. Frank H. Easterbrook: They must be treated as though they were federal officers from a constitutional point of view, and the only question is whether their actions comported with the Federal Constitution.

The packets in the bag were heroin.

Santana was asked to empty her pockets.

The officers recovered from the search of Santana’s pockets, $70 of the purchase money.

The other $40 of purchase money was never found.

The officers also discovered on a table in the living room two large knives that could have been used as weapons.

Chief Justice Warren E. Burger: When you say recovered the money, do you mean the identification was made by a virtue of them by the serial numbers?

Mr. Frank H. Easterbrook: By the fact -- because the serial numbers have been recorded Your Honor.

The serial numbers on the other money in Santana’s pocket did not tally with the money that had been used for the purchase.

Respondents were indicted for possessing heroin with intent to distribute it.

They moved to suppress the evidence seized incident to their arrest in the District Court --

Justice Potter Stewart: Is there any state prosecution?

Mr. Frank H. Easterbrook: They were originally also arrested by state authorities, initially -–

Justice Potter Stewart: That is what you just stated the facts?

Mr. Frank H. Easterbrook: And they were charged by state authorities.

Approximately a week after the arrest the state charges were dismissed so that there is no state prosecution now pending.

They were dismissed technically without prejudice, but the state authorities, I am informed, have to intention of prosecuting.

Justice Potter Stewart: That was not a problem here?

Mr. Frank H. Easterbrook: There was not.

Justice Potter Stewart: Whatever other problems we may have? [Laughter]

Mr. Frank H. Easterbrook: Although the oral opinion of the District Court is not entirely clear, the Judge apparently concluded that the evidence was required to be suppressed, because the arrest of Santana was made without a warrant.

Court recognized that there was, in his words, strong probable cause to arrest Santana and, in our words, absolute certainty to believe that she was at home.

Moreover, the Judge stated that he did not want to criticize the officers for acting as they did under the extreme emergency posture of a case like this.

Nevertheless, the Judge concluded they should have obtained a warrant to enter her vestibule to make the arrest.

We appealed, the Court of Appeals affirmed without opinion.

We begin from the premise that under United States against Watson decided by this Court on January 26 --

Chief Justice Warren E. Burger: Did District Judge say something about their being no danger of destruction of the evidence, or the concealment of it?

Mr. Frank H. Easterbrook: The District Court concluded that because they found $70 in respondent Santana’s pockets, there was no reason to believe that evidence was to be destroyed.

In our view this is essentially a post hoc justification.

The officers had no way of knowing, whether they would find the evidence or not amongst Santana’s pocket.

And the fact that they did --

Justice Potter Stewart: I gather it was the marked money.

Mr. Frank H. Easterbrook: Yes.

The fact that they did find that there was happenstance and was something they could not have known at the time they were making the arrest.

Under United State against Watson, we believe, police are entitled to make an arrest without a warrant, if they are, where they have a right to be, at the time they make the arrest.

In Watson, the police had a right to be in the public restaurant at noon time and therefore had a right to make an arrest without a warrant.

There is no doubt that police, like other visitors have the right to approach a house by using the front steps.

Unknown Speaker: Excuse me Mr. Easterbrook, I am little confused, I am glancing now at the District Judge’s oral colloquy which amounted to his opinion, I guess, did it not?

Mr. Frank H. Easterbrook: Yes.

Justice Potter Stewart: Page 5 indicates that not only was the marked money suppressed as evidence, but also some heroin?

Mr. Frank H. Easterbrook: Yes, it was Your Honor.

Justice Potter Stewart: What heroin?

Mr. Frank H. Easterbrook: It was the heroin that was found in the bag that respondent Santana was carrying at the time she was seen in the doorway.

And that is the very heroin that she is charged with the possession with intent to distribute.

That is the focus of the indictment in this case.

Justice Potter Stewart: Well, the heroin that was sold to McCafferty --

Mr. Frank H. Easterbrook: -- Was not suppressed Your Honor.

Justice Potter Stewart: It was not suppressed --

Mr. Frank H. Easterbrook: That is correct.

Justice Potter Stewart: That would have been that evidence that Santana had heroin in her possession with intent to distribute or sell it?

Mr. Frank H. Easterbrook: It would also have been evidence.

Justice Potter Stewart: And was it, well?

Mr. Frank H. Easterbrook: But that evidence is not involved in this case.

She was charged with possession of the heroin that was found in the bag.

That is correct.

Justice Potter Stewart: Which it is -- would be responsible for?

Mr. Frank H. Easterbrook: That is correct.

The indictment is a Page 5 of the separately bound appendix.

Justice Potter Stewart: She was charged with possession of heroin for sell, or distribution?

Mr. Frank H. Easterbrook: That is correct.

And the heroin that was the subject matter that indictment, was the heroin that was in the bag at the time she was arrested.

Justice Potter Stewart: Does that appear in the indictment?

Mr. Frank H. Easterbrook: It does not appear specifically in the indictment.

Justice Potter Stewart: Then the indictment -- the heroin that was sold to McCafferty?

Mr. Frank H. Easterbrook: No, Your Honor the --

Justice Potter Stewart: There is no reason to suppress that, was it?

Mr. Frank H. Easterbrook: That is correct.

There was no reason to suppress that and it was not suppressed.

The subject matter of the indictment relates that she possessed 587 grains of heroin.

Justice Potter Stewart: So you can tell by that quantity that there was --

Mr. Frank H. Easterbrook: That is right.

McCafferty was indicted with distributing 42 grains of heroin.

That is in the paragraph immediately preceding.

Chief Justice Warren E. Burger: Looking at 4A of the petition on a writ here, and I take it all of the language appearing on 2A, 3A, and 4A following the words that the Court -- what the District Judge said --

Mr. Frank H. Easterbrook: Yes, Your Honor.

Chief Justice Warren E. Burger: -- by way of an opinion, and among other things, the presence of the money in defendants Santana’s pocket indicates that there was no basis to conclude that it was to be destroyed, that is the Judge’s statement.

Mr. Frank H. Easterbrook: Yes, Your Honor.

Chief Justice Warren E. Burger: Predicate for his suppression?

Mr. Frank H. Easterbrook: That was part of his reason for suppressing the evidence, and I booked --

Chief Justice Warren E. Burger: Anything else or is there any other explanation of why he thought it could not have been destroyed five minutes later, if she had locked the door?

Mr. Frank H. Easterbrook: There is no other statement except to that.

Chief Justice Warren E. Burger: Or concealed, or concealed?

Mr. Frank H. Easterbrook: None other Your Honor, except the fact that it was in her pockets at the time of the arrest, which was approximately two or three minutes after the sale, and at that point, as I have pointed out, $40 of the money was already gone, $70 was recovered.

Problem here we think --

Chief Justice Warren E. Burger: (Inaudible) the District Judge did not make any reference to disposition of the heroin at least that I observed, or did he at some point?

Mr. Frank H. Easterbrook: He did on the last page of his oral opinion on Page 5A, the second paragraph from the end.

The Court believes the heroin would support count two and three should be suppressed and not offered as evidence.

Chief Justice Warren E. Burger: What should be suppressed that to -- that could have been put down to drain very quickly?

Mr. Frank H. Easterbrook: That is correct.

He never makes any statement that there was – that the officers knew, or did not know whether that was to be destroyed.

I think it is implicit in his opinion that the officers did not know that it was soon to be destroyed.

We think the problem here is whether the police who were entitled to approach Santana as she stood in her doorway, were required to stop, turn back and seek a warrant because Santana retreated from the threshold of her doorway into her vestibule.

The consequences of a sudden stop would have been considerable.

Respondents would have been afforded a respite of an hour or more while the warrant was being obtained.

There would have been ample time then to destroy the heroin and the money which having seen the officers coming.

Justice Thurgood Marshall: Would it be fair to say that Judge said that before you move the van you should have gone and gotten the warrant?

Mr. Frank H. Easterbrook: I think that is another possible interpretation, and my understanding of the oral argument in the Court of Appeals is that -- at least, one of the Judges of the Court of Appeals expressed that view.

And if that is the correct view of this case, we submit that it is not because the officers were entitled to approach Santana as she stood in her doorway without a warrant, and the respondents do not seriously contest that.

But if it is the correct view of the case the arguments that we make here are unaffected.

It was still true that the police believed that she was committing the crime of possession of heroin, and it was still true that the arrest was quite prompt after she had committed the crime of distributing heroin to McCafferty.

And I will now turn to our --

Justice John Paul Stevens: Mr. Easterbrook, I have just one small point.

Is it correct that your theory is they had probable cause to believe she was then committing the crime of possession of heroin --

Mr. Frank H. Easterbrook: Yes Your Honor.

Justice John Paul Stevens: -- as opposed to having just completed a sale?

Mr. Frank H. Easterbrook: We believe that they had probable cause to arrest her for two crimes.

Justice John Paul Stevens: That is that they would -- they had before they went up after the door?

Mr. Frank H. Easterbrook: We believe that it is reasonable for officers to believe that people who have just sold heroin from a house in an operation of this sort have not sold at all.

Justice John Paul Stevens: I see.

Mr. Frank H. Easterbrook: It is essentially a question of common experience.

The most general justification for the arrest in order to put a stop to the continuing crime was articulated by Mr. Justice Marshall in Watson.

He wrote, “When Law Enforcement Officers have probable cause to believe that an offense is taking place in their presence and that the suspect is at that moment in possession of the evidence, exigent circumstances exist.

Delay could cause escape of the suspect or destruction of the evidence.”

That fits this case exactly.

The officers have probable cause to believe that Santana was engaged in the crime of possession of heroin with intent to distribute it, and that she possessed not only the heroin but the evidence of another crime, her previous sale of heroin to McCafferty.

They were therefore entitled to make a prompt arrest even though that involved an entry into her vestibule.

Justice Byron R. White: Do you think is it necessary they had probable cause to believe that the heroin was on her person?

Mr. Frank H. Easterbrook: We do not believe so, Your Honor.

They have probable cause to arrest her for that crime.

There would be some difficulties in this case.

Justice Byron R. White: What heroin -- let us assume, they had probable cause to believe that she had heroin somewhere in the house, but not necessarily probable cause if she had it on her person.

You would arrive at the same result?

Mr. Frank H. Easterbrook: We believe that they could make the arrest.

There would in our view be --

Justice Byron R. White: Then they have entered the vestibule?

Mr. Frank H. Easterbrook: Entered in the vestibule.

There would be difficulties if they then attempted to search the house for the heroin that they have probable cause to believe was there.

We believe they would, at that point, be required to desist and if the heroin was not within the reach of her or on her person to obtain a warrant to search the house for the heroin that they had probable cause to believe was there.

Unknown Speaker: Except it is to be on her person, or in plain view they would be required to get a warrant, would they not?

Mr. Frank H. Easterbrook: To search the house --

Chief Justice Warren E. Burger: To serve a status quo until someone came back with the warrant?

Mr. Frank H. Easterbrook: Unless they had reason to believe that there were other people in the house, for example --

Chief Justice Warren E. Burger: Well, I am just assuming.

Mr. Frank H. Easterbrook: Assuming that they had already arrested everyone in the house.

Chief Justice Warren E. Burger: We will resume there at 1 o’clock.

Mr. Easterbrook you may continue.

Mr. Frank H. Easterbrook: I would like to expand upon my answers to two of Mr. Justice Stewart’s questions.

You inquired, Mr. Justice Stewart about the nature the indictment in this case, and the indictment is indeed, as I indicated, for the possession of the heroin that was in the bag.

United States Attorney informed me that that indictment was returned, because Patricia McCafferty whose testimony would have been perhaps necessary for proof of the sale to McCafferty had indicated that she was unwilling to testify against Santana.

And therefore the decision was made to indict her for the possession with intent to distribute the heroin of the bag.

Second question had to do with whether our position was that you could make a warrantless arrest entry at night?

And I indicated that that our position was that.

I should expand by saying that we believe that historically no warrant has been required and none should be required, but the reasonableness of requirement of the Fourth Amendment applies in full force, and it could -- and usually would be unreasonable to make a night time entry if a daytime entry would do as well to make an arrest.

So that we do not want to leave the impression that night time entries are a preferable or indeed unquestioned way of making such arrests, they are not.

They are often unreasonable.

This case does not involve an entry to search for a suspect who may or may not be there.

Does not involve a delayed arrest for a crime committed long ago.

The officers had seen Santana in the doorway with their own eyes and they knew she had committed a crime there moments before and probably was still committing a crime.

There --

Justice Potter Stewart: How faraway were they, when they learned of the sale to McCafferty.

How far were they away from Santana’s house?

Mr. Frank H. Easterbrook: About a block and a half Your Honor.

And they returned that block and a half in a very brief time.

This immediate arrest did not only put a halt to an ongoing crime but it preserved the evidence of that crime and of the crime that had just been committed in the sale to McCafferty.

It prevented any possibility of flight, it produced maximum surprise, and by that token, maximum safety to the officers, because if the officers had been compelled to desist and defect the house arrest, their personal safety could have been in some danger, if they had later attempted to make the arrest once respondents knew they were there and attempting to arrest them.

In many ways, this case is similar to Scher against United States, which we discussed in our reply brief.

Officers had possessed probable cause to believe that Scher was committing the crime of distributing distilled spirits and that he had some such spirits in his car.

They followed Scher’s car to his home and arrested him in his garage.

The Court unanimously upheld that arrest.

It observed that the passage of the car into the garage did not destroy the officers’ right to follow and to arrest Mr. Scher, and so it is here.

Respondent’s passage into her vestibule did not destroy the officers’ right to arrest her for an ongoing crime.

Justice John Paul Stevens: Mr. Easterbrook, may I ask about the ongoing crime theory.

You told me a little earlier that the reason they had probable cause to believe she was then committing a crime was that you assume that one who sells some heroin retains some in supply.

Do you also assume that the retained heroin is on the person of the defendant or merely on the premises?

Mr. Frank H. Easterbrook: We assume only that is on the premises Your Honor, and as I indicated in response to a question by the Chief Justice, it would be permissible to arrest that person.

At that point, if a search of the premises were necessary to discover the heroin, it would be appropriate to obtain a warrant to make the search of the premises for the heroin.

Justice John Paul Stevens: Not only appropriate, but necessary?

Mr. Frank H. Easterbrook: Necessary, yes.

We do not argue that you can search the premises if the heroin is not on the person who is arrested.

Chief Justice Warren E. Burger: I think you said before that the limit of the officers conduct, once they got in the house was A - to search that person who was arrested and B - to seize any contraband in plain view, and the third alternative would be to take them in custody and preserved the status quo while awaiting another officer who would go to secure a warrant?

Mr. Frank H. Easterbrook: Yes, Your Honor.

The search would go no further than the permissible scope of search under Chimel against California, which included the person of the person arrested and the area within his reach at the time of arrest.

We do not believe, however, that the right to make the arrest of Santana depended necessarily upon the fact that she was committing the crime of possession of heroin with intent to distribute.

And we submit that it is reasonable for officers to enter the house within a few hours after a crime and hear the crime of the sale to McCafferty.

Whether or not this justification is called fresh pursuit.

It is based on an entirely practical understanding that the first few hours after a crime are critical, both to capture the suspect and to recover the evidence.

It is a justification based on exigencies that pertain to many cases.

The decisions of the courts below by requiring officers to delay and invest one or more hours in obtaining a warrant, would disable them from acting during this most critical time immediately after a crime had been committed.

Once these first few hours have passed, the need for haste is diminished, but at least during the first few hours it is reasonable for officers to act promptly to make the arrest.

The District Court disagreed with this argument, because it said, the police could not be sure that respondents would flee, could not be sure that respondents would destroy evidence and so on.

The problem with this approach, as I indicated earlier to you Mr. Justice Stevens, is that there are many possible outcomes during the first few hours after a crime.

They are in reality no more than predictions of probabilistic events.

The police may know that some suspects will flee; they will know that some will arm themselves in attempt to defend themselves against arrest; they know that some suspects will destroy evidence, but with rare exceptions, they cannot know which suspects those are.

Justice Thurgood Marshall: Then did Santana know that she had been caught? She did not know it, did she?

Mr. Frank H. Easterbrook: Your Honor, Santana did not know until her arrest was made and our argument --

Justice Thurgood Marshall: Then I think there was no danger when destroying this loot?

Mr. Frank H. Easterbrook: We believe that there was a very real danger as soon as the arrest of McCafferty was made only a few blocks away.

McCafferty -- the arrest of McCafferty could have been observed and that in fact could have been related to Santana.

Justice Thurgood Marshall: That is it?

Mr. Frank H. Easterbrook: McCafferty was arrested immediately after the sale.

Justice Thurgood Marshall: Publicly?

Mr. Frank H. Easterbrook: She was --

Justice Thurgood Marshall: Like people that go in and make purchases do not usually do not usually do it public, do they?

Mr. Frank H. Easterbrook: Your Honor, she was arrested in an automobile approximately a block and a half from Santana’s house.

Justice Thurgood Marshall: Well, let us put it this way, there is nothing in the record that shows that they did not know?

Mr. Frank H. Easterbrook: That is right.

There is nothing.

And our argument is that there need be nothing.

Justice Thurgood Marshall: And if she did know I would submit that she would have come out the back door rather than the front door?

Mr. Frank H. Easterbrook: That is right.

Oh, no.

There is no --

Unknown Speaker: What do you mean oh, no?

Mr. Frank H. Easterbrook: We are not arguing that she knew.

We are arguing that the prompt arrest prevented her from running.

Justice Thurgood Marshall: (Inaudible)

Mr. Frank H. Easterbrook: We are not arguing Your Honor that she was about to destroy these goods.

Justice Thurgood Marshall: But that is you submit the whole case is, do you not?

Mr. Frank H. Easterbrook: Our argument is that officers might reasonably believe that some suspects will destroy evidence.

We are not arguing, this was necessarily such a suspect.

Chief Justice Warren E. Burger: What is the -- again walking up her driveway when she was standing in the open door, what would be her probable reactions since your dealing in probabilities?

Mr. Frank H. Easterbrook: Her probable reaction we think is to attempt to destroy the evidence that she has and to attempt to flee, if they were required to desist after they were walking up her driveway.

But again, as we have argued it is simply the question of probabilities, and we think it was reasonable for the officers in consideration of these probabilities to continue on to make the arrest.

Our argument rests on probabilities and it rests on an analysis of reasonableness that pertains to the many cases other than this one.

If there are no questions I will reserve the remainder of my time.

Chief Justice Warren E. Burger: Mr. Eisman.

Argument of Dennis H. Eisman

Mr. Dennis H. Eisman: Mr. Chief Justice and may it please the Court.

The issue before the Court today is in reality whether 200 years after the Declaration of Independence, Americans can be secured in the knowledge that the police may not broach the sanctity of their homes, seize them or there loved ones, carry them away without a judicial finding of probable cause for their arrest, accepting the argument that in certain cases, exigent circumstances would require an arrest without a warrant.

Chief Justice Warren E. Burger: What do you suggest as a hypothesis for the probabilities when the officers approached the door and she was standing in the open doorway, as it turns out with the heroin either in her hands or under her person?

Mr. Dennis H. Eisman: What?

Unknown Speaker: But your own knowledge what shows -- the record shows that she had just engaged in a sale of narcotic?

Mr. Dennis H. Eisman: Well, what the record shows in the District Court, and why the District Court I believe held this way was that the police set in motion the fact of the discovery of the arrest by their own action and immediately going to the house and taking the options of her immediately rushing up -- in plain clothes with guns drawn and rushing the house.

When the Court felt below that it would have been just as easy and more constitutionally proper for them to have gone immediately to the place where, in Philadelphia, where the Justices of the Peace sit on a 24 hour basis which is only a half an hour away, gotten a warrant and return and not rush the house with guns drawn and children sitting on a steps in plain clothes in this fashion.

So I think the argument that once the police ran up to the house with their guns drawn that the defendant would have known that they were coming to arrest them would have destroyed evidence, begs the issue that the District Court found was that they should not have acted in that fashion. They said they had the time.

were no exigent circumstances absent what the police themselves created here in this case.

The exigent circumstances, as pointed out by the Government in this case, are all circumstances which were created by the Government’s action and could have been negated by merely getting a warrant and returning to the house and making the arrest.

Chief Justice Warren E. Burger: Suppose the lady had been on the front porch and had not identified the police as policemen, as they approached to assume that they were reps, assuming that they were magazine salesmen or whatnot, could they have lawfully arrested her then and there?

Mr. Dennis H. Eisman: I think that --

Chief Justice Warren E. Burger: -- given the knowledge that they had about the prior transaction a few minutes before?

Mr. Dennis H. Eisman: I think if she were out in the street or if it was an open porch, not connected inside the close of the house as we might say, it might -- the case might fall into the area of the Watson decision.

But in this case the record clearly shows that she was inside the doorway, and a matter fact, one of the police officers testified even in the vestibule.

And I think one of the reasons this case is here today is to decide the issue different from Watson, not a person out in a public place, but whether a person inside the home, has the security that we submit the Fourth Amendment gives additional rise to the security of the home.

In this case, there were absolutely, according to the findings of the District Court, no exigent circumstances.

There was no information whatsoever that the defendant was armed or dangerous.

There was no degree of time necessary to get a warrant, as in the Miller case, another Third Circuit case where they knew that it only took 15 minutes to cut heroin.

It would have taken them 45 minutes to get the warrant.

Here the District Court found that under the facts of this case, they have ample time to get a warrant.

Thirdly, there was no information that the defendant was in anyway aware that the police was on -- were -- was on her trail.

And finally, there is no evidence whatsoever, and the record as it is stood when the police rushed the house that there would be an effort to dispose off the money, which is the only real evidence that the police were talking about.

In this case, that they were going in to seize.

The court below asked a specific question, on Page 37 of the record.

Now, the minute you left, what was your purpose of going to the house?

What did you intend to do?

Answer - I immediately intended to recover the marked money that was used in the transaction and arrest of defendant Dominguez Santana.

Nothing in the record, in this case, that they had a reason to believe that there are additional narcotics present in the house or that this defendant in fact possess them.

As a matter of fact, the record in this case interestingly reveals, no direct information that it was this defendant who made the sale, the evidence presented in this case was that the police officer saw McCafferty go into the house with Alejandro and come out of the house shortly after.

The Police had never seen Mrs. Santana at all that day.

And when asked about the transaction the only thing that McCafferty said was Mom has the money, not that Mom sold the dope, but that Mom had the money.

Justice Thurgood Marshall: (Inaudible)

Mr. Dennis H. Eisman: Well, she was seen going into the house with the co-defendant, Mr. Alejandro and coming out a short time after and I think it would be just as logical to assume that the dope could have been sold by Alejandro, and somehow she saw the proceeds eventually go to Mrs. Santana was told that the money would eventually go to her.

But in this record, and I am not arguing with the finding of the District Court of a probable cause here.

What I am saying is the record here is even a little unclear as to what knowledge the police had when they charged the house with their guns drawn, in plain clothes with children sitting on the step saying, police.

Here in addition to the issues raised by the Government on their appeal -- there was the another issue that I do not think the Court really felt it necessary to get to, but that was that the circumstances of this arrest, the failure to say, we are here to arrest you, and merely running up with guns drawn into somebody’s home without stating the purpose for that entry, was in fact improper also.

The sanctity of a person’s home is not only, I believe, guaranteed by the Constitution, but it is a tradition that goes back hundreds of years in England and/or Anglo-Saxon heritage.

It is a problem not only that existed at the time of our revolution and, according to many writers, was one of the fundamental reasons why in 1776 there was a Declaration of Independence, but in fact, exist today outside of our country in England, the history of the Fourth Amendment which I do not intend to dwell on at any great length.

Justice Byron R. White: Why do you think the (Inaudible) was not making an arrest in her home, if without a warrant --

Mr. Dennis H. Eisman: In England?

Unknown Speaker: -- if there was probable cause?

Mr. Dennis H. Eisman: In England there was no requirement for a warrant to make an arrest and I submit that is the reason why our Constitution was written or Fourth Amendment was written to the Constitution was to distinguish between what was going on in England and the colonies in those days, and what was hoped for to be different in this country.

Because in England today, according to at least the press in London, that is before the House of Parliament, a bill that gives the Internal or Inland Revenues Service, as it is called in England, the right to go into somebody’s home and search for any papers necessary to prove tax evasion, take away anything necessary, and break doors, if necessary.

General warrants --

Justice Potter Stewart: Without a warrant?

Without a warrant?

Mr. Dennis H. Eisman: With a warrant, but not no warrants specifying to any general specific areas that --

Justice Potter Stewart: Does the warrant have to be supported by probable cause?

Mr. Dennis H. Eisman: No.

It is a warrant that is obtained from a Justice of the Peace, which according to the reports I have read, has absolutely no knowledge of what the Inland Revenue Service might be interested in, but the point I am making is this is a general warrant, the type of warrant that was used in England and in the colonies before the Declaration of Independence, which lead to the eventual finding that a Fourth Amendment to the Constitution was necessary.

If the Fourth Amendment does not protect us from intrusions into our home, and protect us from the police determination as to whether or not they are going to arrest us by putting between the police and the citizen a judicial disinterested determination, then what does the Fourth Amendment stand for?

It has to stand for the fact that in America, citizens before they could be taken out of their house, whether be day or night -- and I do not think -- although it is a little more horrendous to be dragged from your home without a warrant at night than it is to be dragged from your home or have your sons or daughters dragged from your home in the day time without a warrant.

At least if we know that before the police came to our house, absent exigent circumstances, that a Judge had found probable cause, then I believe we will be finding what our forefathers in the Bill of Rights wanted to offer for our country that we would be different from the systems in other countries, and that we would have the protections of a judicial determination of probable course.

In this case, there was absolutely no exigent circumstances found by the Trial Court, and no reason to go into the home and drag out Mrs. Santana in the fashion it was done.

This was a row house with people sitting, children sitting on the step and the facts are that plain clothes policemen jumped out of a van, ran up with guns drawn, ran into the house, and grabbed the defendant.

It is a frightening aspect or specter to think of, even though when we consider that the crime involved is a crime that we consider serious.

Chief Justice Warren E. Burger: Frightening Mrs. Santana, you mean?

Mr. Dennis H. Eisman: Frightening that it might happen to one of us that the police may come to our house, run up with guns drawn and plain clothes, run through the doorway where we are standing on vestibule and grab us.

It is frightening that to think that not only can this happen to someone as alleged like Mom Santana, but it could happen to anyone, where the police are the ones making the determination.

Justice William H. Rehnquist: Well given the exigent circumstances there is no doubt it can happen improperly up?

Mr. Dennis H. Eisman: Well, I -- I concur that where the person is armed and dangerous.

Where there is evidence that the person can destroy the evidence, or might destroy the evidence, or might flee, that that is a common sense and logical exception to the warrant requirement, but here in this case, and I believe, and the reason why this case is before this Court today is the determination of absent those exigent circumstances.

Do we as American citizens have the protection of a judicial determination before we are seized?

Normally, before this time most of the cases requiring warrants were just for the seizure of property, and I am the first to admit that property rights are extremely important in our society, but rights to physical arrest, I believe, are a little more important, and the seizure of a person is it goes even deeper than the seizure of a property, and people should at least be have the same rights to protection of a judicial determination before the seizure of their person that they have in the seizure of their property.

Thank you.

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

Do you have anything else further Mr. Easterbrook?

Rebuttal of Frank H. Easterbrook

Mr. Frank H. Easterbrook: Counsel for respondent has indicated that a problem in this case is the failure of the officers to announce that they were officers and to state their purpose and to demand entry.

I will deal with that just quite briefly.

It is not clear that the Constitution requires any announcement.

Ker against California presented that question directly, and four Justices believe that it did; four Justices that it did not, and Justice Harlan expressed no view on that question.

Assuming the Constitution requires some sort of announcement.

The pertinent analogue would be 18 U.S.C. 3109, which requires an announcement prior to the breaking of the door of a house.

Our reply brief devotes substantial space to this question.

We have argued that walking in through an open door, in the view of someone who knows that the officers are coming, is not such a breaking that an announcement is required by Section 3109.

And in addition, there was no chance here that any of the harms that that rule was intended to prevent could come about.

The rule was designed to prevent the exertion of force by officers, the breaking of doors when that kind of breaking could be avoided by consent.

It was also designed to avoid unnecessary opportunities for violence.

The householder in England had the right to protect himself against those who would break down his door and enter.

And the rule of announcement, by letting him know that the police were coming, would prevent that sort of violence, but this case does not present either of those two rationales and we submit should not be cover by them.

Thank you very much.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.