RAKAS v. ILLINOIS

Transcript: 

Argument of G. Joseph Weller

Chief Justice Warren E. Burger: We'll hear arguments next in 5781, Rakas and King against Illinois.

Mr. Weller, I think you may proceed when you're ready.

Mr. G. Joseph Weller: Thank you Mr. Chief Justice and may it please the Court.

Your Honors, the basic issue in this case is rather passengers who were legitimately present in an automobile that was stopped by a police have standing the challenge to the constitutionality of warrantless search of that automobile.

We advance two grounds for such standings; one is the legitimately present on the premises rule, and the other is the directed that theory for standing.

The facts in this case can be briefly stated.

The two petitioners in this case, Frank Rakas and Linnie King were convicted of armed robbery in an Illinois court, and the most significant evidence against them was a sawed-off rifle, which was identified by one of the victims of the robber has being the same weapon which was used by the mask robbers.

The two robbers in the robbery in question made their getaway from the site of the robbery in a blue Plymouth Roadrunner which was taken from one of the robbery victims.

About 10 or 15 minutes later, the policemen --

Chief Justice Warren E. Burger: When they found them possession of that car?

Mr. G. Joseph Weller: The car was subsequently abandoned.

However, prior to that time, the police officer who was about four miles north of the robbery site noticed a -- not a blue Roadrunner but a purple Roadrunner with a different license number.

He followed this vehicle to a lounge, saw the petitioners and two female companions exit and go into the lounge, and then he returned to his original site near the highway to look for the real getaway car since he knew it was a different license number.

About that time, he heard a radio call noting that the getaway car had been found abandoned, so he considered the possibility that the robbers changed cars.

He went back to the lounge, called the sheriffs and dispatcher for a description of the suspects.

He was not given a description, instead he gave him his description of the petitioners who he had seen and he was told that one of the petitioners who I believe would be Mr. King matched the description of one of the robbers.

As a matter of fact however, we learn from the trial that the robbers in this case were wore ski mask and they wore clothing different from what the petitioners from wearing at the time of their arrest.

In any event, police officer waited until petitioners left the lounge.

He followed their car down the highway toward the robbery site, and it was near the site in which a number of police vehicles stopped the car in which petitioners were riding and the search and question was conducted.

Now during the --

Justice Harry A. Blackmun: Mr. Weller in your opinion, was there ever an arrest?

Mr. G. Joseph Weller: In my opinion, there was not an arrest before the search.

Justice Harry A. Blackmun: Not before the search, I want to be sure about that.

You so conceive.

Mr. G. Joseph Weller: No arrest before the search.

There was also no consent for the search.

In any event during the motion suppressed hearing, both petitioners agreed that they did not own the car in question.

The car was owned by one of the female companions who happen to be the former wife of petitioner King.

The trial court decided that since neither the petitioner own the car that they did not have standing to contest the search and their motion suppressed then was summarily disposed off on that grounds.

The trial court nor the appellate court discussed the legitimately on a premises rule which we rely upon here.

Chief Justice Warren E. Burger: For now, that language that you have paraphrased at least from our opinions related to dwelling houses did it not?

Mr. G. Joseph Weller: That's exactly correct and I believe the issue in this case contrary to what the respondents brief would suggest is whether this rule does apply to automobiles.

Chief Justice Warren E. Burger: Many cases have made sharp distinctions between searches of automobiles and homes have they not?

Mr. G. Joseph Weller: I acknowledge that Your Honor.

However, the major distinction which has been made between automobiles and homes is the mobility of an automobile.

And as a result of that, it's generally been held that the police have a greater right to conduct warrantless searches to automobile.

Chief Justice Warren E. Burger: Does it not also rest on expectation of greater privacy in the home, in an enclosed home than in an automobile?

Mr. G. Joseph Weller: Recent cases have dwelled upon the point that there is a lesser expectation of privacy in an automobile.

However, there is ample authority also for the proposition that not withstanding, there is a substantial right of privacy in an automobile.

Now, I think maybe --

Justice William H. Rehnquist: Well, if standing is a prudential rule, doesn't it make some sense to say that if automobiles are subject to less rigorous substantive requirements as to search and seizures, they're also subject to stricter standing requirement?

Mr. G. Joseph Weller: I don't think so unless you can say that there is absolutely no expectation of privacy in automobile.

And because obviously, we know the owner would have standing to conduct the search.

Justice William H. Rehnquist: If you could use both to zero, I mean you never get an automobile case, but if you're for simply talking about diminished expectations of privacy as compared to a house, then wouldn't it make sense to say there are stricter rules of standing too because we don't consider the interest in privacy as great in an automobile as we do in a house?

Mr. G. Joseph Weller: Of course, it is diminished.

But as I was saying, the owner of the automobile still has standing.

Now of course, the owner of a house would have standing.

We to say that there is a difference between the guest but not the owners.

There is a differential between owners and guests same in both --

Justice William H. Rehnquist: Well as the Chief Justice has commented, we have differentiated between houses and automobiles for purposes of substantive Fourth Amendment inquiries; doesn't it make sense to differentiate between them for standing purposes too?

Mr. G. Joseph Weller: No, I don't believe so because as long as the right of privacy exists and someone can be the victim of a Fourth Amendment violation, be it an automobile or a house, you should have standing to raise that issue.

Justice William H. Rehnquist: Well, are you arguing an injury in fact that if it your trial evidence is introduced against you which has been obtained in violation of Fourth Amendment, you can object to it eventhough you didn't own it?

It wasn't on and but you weren't on the premises when it was taken?

Are you arguing of simply do away withstanding?

Mr. G. Joseph Weller: Oh, absolutely not.

I think that would be a perhaps --

Justice William H. Rehnquist: Well then, what is it mean to say you're the victim of an unlawful search?

Mr. G. Joseph Weller: The victim is one who actually suffers an invasion of the privacy which he had and his reasonable expectation of privacy.

I believe that a passenger in automobile does have that reasonable expectation of privacy.

Justice William H. Rehnquist: Well how about supposing that the police go to A's house and searched without a warrant and find a letter that has your finger prints on it and you were not in the house at the time the search occurred and the letter did not belong to you, nonetheless, it tends to incriminate you.

Do you think you should have standing to object to the introduction of that at your trial?

Mr. G. Joseph Weller: Not under the legitimately on a premises rule which I have advanced.

You have to be present under Jones versus United States to have that reasonable expectation of privacy, to have that necessary interest in the premises search.

Justice William H. Rehnquist: Haven't been a victim of the search then?

Mr. G. Joseph Weller: I would have to concede that if you're not present, you were not be a victim on the search, but if you are present you have the expectation.

You have an interest in the premises search and I see no reason to differentiate between automobiles and houses.

Chief Justice Warren E. Burger: When you indicate at what point precisely is right of privacy you speak of was invaded, that is was it invaded when they told them to get out of the car?

Mr. G. Joseph Weller: I think it was invaded when the car stopped.

Chief Justice Warren E. Burger: -- stopped the car?

Mr. G. Joseph Weller: I believe it was invaded to several points, including when the car was stopped and --

Chief Justice Warren E. Burger: Now, where's the first point where the privacy was invaded?

Mr. G. Joseph Weller: When the car was stopped Your Honor.

Chief Justice Warren E. Burger: And then the next time?

Mr. G. Joseph Weller: When the car was searched.

Chief Justice Warren E. Burger: How about when they told them to get out of the car?

Mr. G. Joseph Weller: That's correct, that would be another time and I think --

Chief Justice Warren E. Burger: Haven't our cases indicated a broad right when a car is stopped to search the car, search the people?

Mr. G. Joseph Weller: I don't believe that it is quite broad enough to allow a search of a car without probable cause.

Justice Potter Stewart: Because as I understand that the validity of this search has never been determined by the lower court.

Mr. G. Joseph Weller: That's exactly true.

Justice Potter Stewart: And even if we decided in your favor, all you ask us to do is to remand it to the state court that yes, the -- to determine the validity of the search, is that right?

Mr. G. Joseph Weller: That's correct.

Justice Potter Stewart: So that -- that's not before us not at all, isn't it?

Mr. G. Joseph Weller: No, it's not.

I believe that the respondent in this case has presented an argument which simply does not exist in this case.

The first case we rely on here is Jones versus United States which presented two tests or grounds for standing; one is the automatic standing rule which we limited to possess retype offenses which says was not, and the second alternative holding is the legitimately on the premises rule which we rely on.

That in Mancusi versus DeForte was stated to have general application.

Justice Potter Stewart: Although it fact, it was a possessory offense in Jones was it not?

Mr. G. Joseph Weller: That is true, but I think it's --

Justice Potter Stewart: The dilemma perceived in the Jones' opinion, Mr. Justice Frankfurter's opinion for the court in Jones was eliminated and Mr. Justice Harlan's opinion for the court in Silence; isn't that correct?

Mr. G. Joseph Weller: That's correct.

Justice Potter Stewart: I may not have the identification of the members of the court exactly correctly; that's my recollection.

But in any event, the Simmons' decision eliminated the perceived dilemma in Jones, the dilemma perceived by the opinion in Jones, isn't that correct?

Mr. G. Joseph Weller: That is correct.

Justice Potter Stewart: And that had only to do with possessory offenses?

Mr. G. Joseph Weller: For the purposes of argument, I would say eliminated offer, I think since I haven't briefed that point whether that actually eliminated, I won't.

Justice Potter Stewart: But with respect to possessory offenses that Simmons made clear that a person didn't have to in fact admit possession in order to try to exclude the evidence, is that correct?

Mr. G. Joseph Weller: That's correct.

Justice Potter Stewart: And that was the dilemma perceived in Jones?

Mr. G. Joseph Weller: That was a dilemma which was faced with the automatic standing which I do not rely upon here.

Justice Potter Stewart: I understand that.

Mr. G. Joseph Weller: I might add that Mr. Justice Harlan also wrote the Mancusi versus DeForte opinion in which did not involve the posssessory offense, and in his opinion he clearly notes that there is a distinction between the two tests.

It would appear to me that the standing is based upon what the Fourth Amendment protects which is the right of privacy not necessarily property.

Therefore, if one has that expectation of privacy he would have standing.

Justice William H. Rehnquist: But if you have an expectation of privacy, your Fourth Amendment interests are implicated are they not?

I mean, isn't that almost saying that there is no standing rule separate from a substantive violation of the Fourth Amendment?

Mr. G. Joseph Weller: Well certainly if there is a violation of Fourth Amendment, one would have to have standing.

Justice William H. Rehnquist: Well then, what's the point of a standing rule?

The standing rule assumes that some people may have a Fourth Amendment claim that they could make if they only had standing.

Mr. G. Joseph Weller: Well, I agree with that though if one is the victim of a Fourth Amendment violation, he should have standing.

Justice William H. Rehnquist: Well then, you are arguing first injury in fact or doing away with standing?

Mr. G. Joseph Weller: Oh no because if you aren't a victim of the illegal police conducts, if it was somebody else who was a victim, you would not have standing or I would not have standing.

But if you are the actual victim, then you should have standing.

My contention here is that my clients were the actual victims of the police action.

There was a Fourth Amendment violation.

They were the victims, therefore they have standing.

Justice William H. Rehnquist: And how again do you define the term victim?

Mr. G. Joseph Weller: Victim is one who had a reasonable expectation of privacy at the time of the contested police conduct.

In this particular case, they had that expectation because they were legitimately present in the car.

Chief Justice Warren E. Burger: If they had been found in a stolen car, you wouldn't be here wouldn't you?

Mr. G. Joseph Weller: I would hate to make that argument.

However, it has been made successfully in a few courts.

Justice William H. Rehnquist: What if they were ten feet away from the car?

Mr. G. Joseph Weller: It seems to me that if they were that close, they might have standing.

I think there is a case that I'm aware of where one did leave the car momentarily and was held not to have standing.

Justice William H. Rehnquist: Suppose he never been in the car but he was just ten feet away from it?

Mr. G. Joseph Weller: No --

Justice William H. Rehnquist: Would he be "legitimately on the premises" as you to use the term under --

Mr. G. Joseph Weller: That's a difficult question and it doesn't apply here.

My feeling is if you've never been on the premises, perhaps not.

But that's not the case we have here.

Justice John Paul Stevens: Other that you've never been in the premises you don't have to decide whether you're legitimately on the premise?

Mr. G. Joseph Weller: I think that makes good sense Justice Stevens.

Now, we also have another issue in this case which concerns what is known as directed at theory.

Under this theory, one who has the search intentionally directed at him would have standing.

The theoretical basis for the theory is that the purpose of the exclusionary rule is to deter unlawful police conduct and the best deterrents would be giving standing to one to whom the search was personally directed at.

Justice William H. Rehnquist: Wouldn't it even better deterrent be to simply to do away with standing and say that anyone who has evidence offered against him at his trial, it was seized in violation of Fourth Amendment ought to be able to object to it?

Mr. G. Joseph Weller: That would be better deterrent.

However, I think that the case law would suggest that some sort of limitation is an order.

Justice Byron R. White: You will argue that next time?

Mr. G. Joseph Weller: Perhaps Your Honor.

If there are no further questions, I like to reserve my time for rebuttal.

Argument of Donald B. Mackay

Chief Justice Warren E. Burger: Very well.

Mr. MacKay?

Mr. Donald B. Mackay: Mr. Chief Justice and may it please the Court.

To grant standing to the petitioners here, we feel would constitute a radical departure from the well-reasoned and readily enforceable rule of standing which is currently based on the right of privacy concept.

The dictates of public policy, we submit Your Honors, strongly support the continued application of the reasonable expectation of privacy standard.

To expand standing as petitioners would suggest under a directed at theory would simply be to say to anyone charged with a crime that he may mount a challenge to a search which could not have conceivably affected his personal interest and privacy.

This approach Your Honors we believe would abandon the traditional rationale behind the Fourth Amendment cases; that is the primacy of the protection of privacy and would replace it with a cumbersome standard of expediency.

Justice Byron R. White: What about the guest in the house and the search to the house, does the guest have standing?

Mr. Donald B. Mackay: Your Honor, in order to answer that question, I think we have to look to what reasonable expectation of privacy the guest had.

Justice Byron R. White: You say there is no general rule about that?

Mr. Donald B. Mackay: It is our position Your Honor that Mr. Justice White that Simmons --

Justice Potter Stewart: You're right, it Simmons.

Mr. Donald B. Mackay: Is it Simmons?

Justice Potter Stewart: Yes.

Justice Byron R. White: Yes.

Mr. Donald B. Mackay: That Simmons although it -- excuse me, I'm getting confused.

That Jones, although it purports to have language to the effect that one legitimately on the premises automatically has standing by virtue of that alone is only dicta in Jones and --

Justice Byron R. White: What if it isn't?

What if we thought that was the general rule?

Mr. Donald B. Mackay: Then, I would submit to Mr. Justice White that this Court should seriously consider abandoning.

Justice Byron R. White: Because it might govern the case for the automobile or guest?

Mr. Donald B. Mackay: Not only that, but because --

Justice Byron R. White: Well, but so, but it would?

Mr. Donald B. Mackay: Yes.

Justice Byron R. White: So if I had a guest in the house and if he were had standing to object to a search, but then left and I was taking him home and there was a search in my car, he would have as much of a standing in the car to object in the search to car as to the house?

Mr. Donald B. Mackay: No, we do not concede that Your Honor.

Justice Potter Stewart: Well it depends upon -- is it necessary to make such a general rule if depends upon what the search was on or been the house if it was a search of the guest suitcase or pajamas or hip pocket is one thing.

If it was a search of the owners of the house's wine cellar, it's something else, isn't it?

Mr. Donald B. Mackay: Yes Your Honor.

Justice Potter Stewart: It's not -- you don't have to talk about the expectations of privacy, just talk about whose Fourth Amendment right was violated and adversely for the Fourth --

Mr. Donald B. Mackay: Correct.

Well, you don't have to answer my question but my question was directed that as to whether or not --

Justice Potter Stewart: Is the proper answer yes or no?

Mr. Donald B. Mackay: Whether -- I just want --

Justice Byron R. White: You would agree that the dictum in Jones indicated that the guest has -- may have standing.

Mr. Donald B. Mackay: That's correct.

I agree that that is what the dictum in Jones says.

I disagree that that's --

Justice Byron R. White: In view of -- and to the extent that is the law would it be as applicable to an automobile as to house?

Mr. Donald B. Mackay: Yes, it would Your Honor.

Justice Byron R. White: That's all I really wanted to know, thank you.

Justice Potter Stewart: Isn't the real test of standing is whose Fourth Amendment right was violated?

Justice Byron R. White: Yes Your Honor.

Justice Potter Stewart: And a person has a Fourth Amendment right against unreasonable searches and seizures in this person's papers and effects, and forgetting about person for a moment because that's not involved here, that's an arrest situation.

There his papers or his effects, if he has ownership of them, titled to them, or if he has possession of them, isn't that correct?

Mr. Donald B. Mackay: That's correct.

Justice Potter Stewart: If he's a stranger to either title of possession, his Fourth Amendment rights can hardly be violated, can they?

Mr. Donald B. Mackay: That's correct.

This Court has held that Fourth Amendment rights were private and may not be vicariously asserted.

To get back to something which I think is suggested by Mr. Justice White's question --

Justice Byron R. White: Or by Jones.

Mr. Donald B. Mackay: Or by Jones.

Justice Byron R. White: Yes.

Mr. Donald B. Mackay: It is the --

Justice Byron R. White: And if Mr. Justice Stewart's presentation is -- he represents a law, the dictum is obviously wrong.

Mr. Donald B. Mackay: The desire position Your Honor.

But we see a distinction Your Honors between the privacy or the reasonable expectation of privacy that one enjoys in his home or in a residence and a reasonable expectation of privacy that a passenger in an automobile should enjoy.

And it is our position Your Honors that the petitioners here lack a sufficient expectation of privacy to object to the search and seizure as being an invasion of their privacy.

Justice Potter Stewart: What if the passenger had been the title owner of the automobile?

Mr. Donald B. Mackay: Then he has standing --

Justice Potter Stewart: Even riding in the backseat as a passenger, but the fact is he owns the automobile?

Mr. Donald B. Mackay: Then under our argument Mr. Justice Stewart, that individual would have standing because his privacy --

Justice Potter Stewart: Well, his ownership --

Mr. Donald B. Mackay: And that vehicle is being violated.

Justice Potter Stewart: Well, his privacy was no more violated in the one case and than in the other.

Mr. Donald B. Mackay: Well, I suggest that as the owner of the vehicle, he has a paramount expectation of privacy in the contents of his vehicle --

Justice Potter Stewart: Well, he has a right not to have his automobile victimize by an unreasonable search and seizures.

Mr. Donald B. Mackay: Yes.

Justice Potter Stewart: John Smith doesn't have a right that that other fellow's automobile not be subjected to an unreasonable search and seizure; isn't that it?

Mr. Donald B. Mackay: Yes Your Honor.

Justice Potter Stewart: Because you do a privacy, the privacy interest is the same in both cases.

Mr. Donald B. Mackay: Well, we take the position that it is not Your Honor that a passenger in an automobile has a diminished expectation of privacy.

The paramount --

Justice William H. Rehnquist: Is that consistent with your answer to Mr. Justice White's question that the legitimately on the premises are rule for houses carries over automatically to automobiles?

I thought you said that you thought it did.

Only did once.

Mr. Donald B. Mackay: Justice Rehnquist, that is exactly what I responded to Mr. Justice White.

We are here attempting to draw a distinction between what the reasonable expectation of privacy is.

Now, I take issue with the dicta in Jones that one legitimately on the premises by virtue of that fact alone should be found to have standing and I would suggest that if this Court reads that to be the law of Jones, that this Court should then overrule that to the extent that it is inconsistent with our position.

Justice Thurgood Marshall: Or not applied to court.

Mr. Donald B. Mackay: Yes Your Honor, Mr. Justice Marshall.

Justice John Paul Stevens: Mr. MacKay, I have to confess I'm somewhat puzzled.

Do you think the standing turns on property concepts are expectation of privacy concepts?

Mr. Donald B. Mackay: I believe it turns on expectation of privacy --

Justice John Paul Stevens: So then, you would not differentiate if you have four people riding in a car 11 o'clock at night out in the country somewhere, you'd say they all have precisely the same expectation of privacy regardless of who owns the car?

Mr. Donald B. Mackay: No, because it is our position Your Honor, Mr. Justice Stevens that the owner of the car -- assuming he is present in your hypothetical.

Justice John Paul Stevens: We'll assume we will take it in both ways.

Would you suggest he has an expectation that he's not present but the four people present have no expectation?

Mr. Donald B. Mackay: I would suggest Your Honor that the owner of the vehicle has a paramount right of expectation of privacy to the contents of that vehicle.

Justice John Paul Stevens: Regardless of whether he is present?

Mr. Donald B. Mackay: Yes.

Justice John Paul Stevens: And the persons present never have an expectation of privacy?

Mr. Donald B. Mackay: The operator of the car and perhaps on the theory of agency that he is the agent of the driver maybe placed in the shoes of the owner as being the surrogate owner to assert the right of privacy.

Justice Thurgood Marshall: That's in robbing, what about the leased cars and the rented cars?

Justice John Paul Stevens: With a passenger in a taxi cab, he'd never have an expectation of privacy I guess.

Open season on taxi cabs.

Mr. Donald B. Mackay: No Your Honor, I'm --

Justice Thurgood Marshall: You're on a leased limousine.

Mr. Donald B. Mackay: As to the --

Justice Thurgood Marshall: What about a leased jet?

Mr. Donald B. Mackay: As to leased modes of transportation Mr. Justice Marshall, the only way I think I can answer your question is to respond that the lessee here is the surrogate owner who has a -- the primacy, the primary protection of the interest of privacy in that vehicle or airplane.

Justice Thurgood Marshall: Well I can see that the answer that I have for, I don't have any.

Mr. Donald B. Mackay: I'm sorry.

Justice Thurgood Marshall: I don't have any answer for it.

That's why I have a difficulty with your argument.

If you just straighten me out by that --

Mr. Donald B. Mackay: Well I'm sorry.

Your Honors, returning again to the degree of expectation of privacy that one may reasonably expect as a passenger in an automobile, we should take into consideration that the primary purpose of an automobile as this Court has recognized is transportation.

An automobile seldom serves as ones residence or as the repository for ones personal effects with papers.

Chief Justice Warren E. Burger: We have on some occasions observed that an automobile is also an instrument of criminal conduct.

Mr. Donald B. Mackay: Yes Your Honor.

Chief Justice Warren E. Burger: Which homes may or may not be but considerably less so.

Mr. Donald B. Mackay: And I believe that Mr. Chief Justice that your latest -- your comment gives more force to our argument that the rights of passengers on an automobile to privacy are significantly diminished.

Justice Potter Stewart: Is it your submission that nobody but the record owner of an automobile has standing to complain of a search or seizure of that automobile?

Mr. Donald B. Mackay: Essentially yes Mr. Justice Stewart with the qualification that someone acting as the owner's agent in possessing or driving the automobile would --

Justice Potter Stewart: Somebody driving it with the owner's permission and who is the only person in the automobile, and therefore clearly has sole possession of it.

Mr. Donald B. Mackay: Right.

Justice Potter Stewart: It might also have --

Justice Byron R. White: What if the passenger in its motion to suppress says I was in possession, I was a passenger but I was in possession of the automobile because I had borrowed it from somebody or I have leased it from somebody --

Mr. Donald B. Mackay: Your Honor --

Justice Byron R. White: Or I have stolen it from somebody?

Mr. Donald B. Mackay: Mr. Justice White, I think in that -- that's what we're dealing with here.

The petitioners never alleged that they were entitled the possession of the car.

Justice Byron R. White: In any of those circumstances, you would think he had standing?

Mr. Donald B. Mackay: Yes.

Justice Potter Stewart: Anybody who is in fact in possession of the automobile?

Mr. Donald B. Mackay: Yes.

And for instance in this case, if the petitioners were to have demonstrated to the trial court that they were in joint possession.

If you want to indulge in such a concept, I would have no quarrel.

Justice Potter Stewart: You might have a quarrel, but it would be a harder case.

Mr. Donald B. Mackay: Well, but I would have no quarrel with granting them standing at least to challenge the legality of the search.

Justice Byron R. White: Or if he's alleged that he was in possession of the gun.

Mr. Donald B. Mackay: I beg your pardon?

Justice Byron R. White: Or if he had alleged that he was in possession of the gun.

Mr. Donald B. Mackay: That's correct.

Justice John Paul Stevens: If he's indicted for possession of the gun.

That would have made it a difference when it's bank robbery.

Mr. Donald B. Mackay: Well in that case Mr. Justice Stevens, you're then talking about a possessory offense.

Justice John Paul Stevens: That's correct.

Mr. Donald B. Mackay: -- and we bring into play the remaining language in Jones which is not been dealt with in Simmons.

Justice John Paul Stevens: It seems to me, if I understand your argument correctly, you're saying in with respect to non-possessory offences that standing turns on property concepts?

Mr. Donald B. Mackay: Correct.

Justice John Paul Stevens: You kind of asking the court to go back to pre-caps days.

Mr. Donald B. Mackay: No, not really on property concepts Mr. Justice Stevens --

Justice John Paul Stevens: Ownership's possession, agent of owner and all that, but the privacy doesn't have anything to do with it because I understand your argument.

Mr. Donald B. Mackay: Well Your Honor, it may be --

Justice John Paul Stevens: You used the word privacy to say its present when you're an owner but there is no privacy present when you're a non-owner and a non-agent.

So in final analysis, you're making a property type analysis but using the word privacy to describe, which is pre-caps analysis.

Mr. Donald B. Mackay: I will concede that with this clarification.

I know of no practical way to determine the underlying legal factual question as to the -- what reasonable expectation of privacy anyone has in a particular location under particular circumstances without at some point reverting to property concepts in order to make that distinction.

Justice John Paul Stevens: Do you think a judge could come to the conclusion that when four or five people are riding along in a car, the car stopped and everybody is ordered out of the car and everybody searched that they could feel that there has been some infringement of their constitutional rights.

You don't think a judge could make that kind of a determination?

Mr. Donald B. Mackay: Your Honor, I'm not saying that.

If the individuals have personally been searched, their individual right to remain free from unreasonable searches has been violated, but when the automobile is searched --

Justice John Paul Stevens: If just the vehicle is searched, they don't have any right?

Mr. Donald B. Mackay: That's correct.

Being legitimately on the premises, we submit without more, is insufficient to confer standing on these petitioners.

This concept presupposes that one who is “legitimately on the premises” has a reasonable expectation of privacy in the premises and in its contents, anywhere in the premises simply by virtue of the fact that he or she is there.

It is our belief Your Honors that this Court when it decided Jones versus United States in 1960 did not intend to create such a rule notwithstanding the very clear English language contained in Jones to the effect that the court was considering two separate grounds for standing.

I think we must remember that Jones, first of all, was attempting to define an aggrieved person under Rule 41 of the federal rules of criminal procedure.

It dealt with a possessory offense where it felt that the vise of prosecutorial self contradiction and the potential for self-incrimination required the court as a matter of public policy to grant standing to the petitioner in that case.

The court found in Jones that the same possession which would grant standing was the very same possession which would convict.

I might also point out that Jones which was decided in 1960 was decided prior to this Court's decision in Mapp v. Ohio which came the following year, and I just doubt Your Honors whether this Court in 1960 when it announced Jones intended to formulate a rule of standing.

Justice Byron R. White: What do you say about Brown?

Brown against United States, 411 U.S.

Here's the footnote, “presence of the defendant at the search and seizure was held in Jones to be a sufficient source of standing in itself”, and that proceeds to say that of course in Brown, there was the defendant was not in the premises at the time.

Mr. Donald B. Mackay: Your Honor, the only way I can answer that is to refer the Court to the dissent of Justice Black in Mancusi versus DeForte where he labels the --

Justice Byron R. White: Of course, this is a court opinion.

Mr. Donald B. Mackay: I understand that.

Justice Byron R. White: Residing what the -- reporting to say what one of the court holdings is and announcing of what the existing rule of lawyers.

Perhaps that didn't approve it but it certainly indicated it was a rule.

Mr. Donald B. Mackay: Your Honor, it is our position that if this Court finds that is the rule in Jones, then Jones should be modified by the opinion in this case to strike being legitimately on the premises as an independent ground for standing because the factors which were present in Jones to give rise to that are no longer in existence.

We now under Simmons, we no longer have the potential for self-incrimination.

We still have left --

Justice Byron R. White: -- the ground called Simmons, after Simmons?

Mr. Donald B. Mackay: That's right.

And as a matter of fact, Brown, there is language in Brown would suggest that the continued vitality of Jones in light of Simmons is questionable in non --

Justice Byron R. White: Only in the automatic standing taken with regard to possession.

Mr. Donald B. Mackay: Now, the way I read Your Honor -- the way I read Brown Your Honor is that it reserves -- excuse me?

Justice Byron R. White: Nothing go ahead, I'm sorry.

Mr. Donald B. Mackay: It reserves for future consideration the application of Jones type standing only to possessory offenses.

We are dealing here with a non-possessory offense.

I think what the Court is suggesting in Brown is that the Jones type standing is no longer required in a non-possessory offense.

Thank you Your Honor.

Rebuttal of G. Joseph Weller

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

Do you have anything further Mr. Weller?

Mr. G. Joseph Weller: Thank your Mr. Chief Justice and may it please the Court.

Very frankly, I find this case remarkably simple.

It seems to me that all we're talking about is that property concepts no longer apply to standing.

Therefore, the legitimately on the premise rule is even more valid today that perhaps it was before.

Chief Justice Warren E. Burger: That leaves us then to decide whether premises and automobiles are to be equated, doesn't it?

Mr. G. Joseph Weller: That's right Your Honor, and I'm willing to concede that there is a diminished expectation of privacy in automobile.

However, I think it's abundantly clear both logically and in this Court's opinion that the interior of an automobile is indeed a protected area.

Chief Justice Warren E. Burger: What if you could see, what if the officers could see the gun or whatever, is that a violation of privacy from the look at it?

Mr. G. Joseph Weller: Well, I think we should make a distinction between what would be a legal seizure or search because of course you have the plain view doctrine would allow -- would make the police officers conduct legal, but perhaps we should still grant standing of the person who's present in the automobile to contest whether or not that gun was in fact in plain view.

One other comment also -- well, we make an example at this point.

A number of examples were suggested --

Justice Thurgood Marshall: No question since you're so hip on Jones.

Is that like to hitchhiker?

Mr. G. Joseph Weller: I think that hitchhiker would probably -- would have standing, however we're not hitchhikers in this case, we're clearly not hitchhikers and also I wonder if --

Justice Thurgood Marshall: But it would apply to hitchhiker?

Mr. G. Joseph Weller: Legitimately on the premises rule would apply to hitchhikers.

Justice Potter Stewart: And robbers, how about --

Mr. G. Joseph Weller: It would not apply to someone who is --

Justice Potter Stewart: -- steals a car and is driving it?

Mr. G. Joseph Weller: It would not apply to it --

Justice Potter Stewart: He is in fact in possession and let's says he is on sole exclusively --

Mr. G. Joseph Weller: Not legitimately on the premise is with my answer.

Justice Thurgood Marshall: But the hitchhiker would be?

Mr. G. Joseph Weller: Hitchhiker would be legitimately on the premises.

However, I wonder -- I wonder if maybe that is really --

Justice Thurgood Marshall: The hitchhiker has a right of privacy in somebody else's car which he is temporarily in.

Mr. G. Joseph Weller: I think that is true, but I wonder if that is really a serious problem.

Justice Thurgood Marshall: Didn't it stretch something?

Mr. G. Joseph Weller: Well, if you're thinking can that situation come up very often because you would assume that this person that we're talking about is --

Justice Thurgood Marshall: I've seen a whole lot of hitchhikers getting in cars.

Mr. G. Joseph Weller: Yes, but can they be incriminated by something found in that car unless they have some association with the car.

So maybe, you're talking about a very isolated circumstance.

Justice Thurgood Marshall: You mean hitchhikers are isolated?

Mr. G. Joseph Weller: No.

So far as --

Justice Thurgood Marshall: -- as many as 10 man in a group.

Mr. G. Joseph Weller: So far as raising this issue is concerned, of course there are many hitchhikers but I think it would be rare that a hitchhiker would be incriminated by something found in the car, and I also would hasten to add that they were not hitchhikers in this case.

Justice Thurgood Marshall: Do you need this real case?

Mr. G. Joseph Weller: Pardon me Your Honor?

Justice Thurgood Marshall: Do you need that Jones statement for your case?

Mr. G. Joseph Weller: Legitimately on the premises?

Justice Thurgood Marshall: Yes sir.

Mr. G. Joseph Weller: It would certainly be helpful and I would not wish to discard it, but --

Justice William H. Rehnquist: You have to go to direct that add forget about Jones don't you?

Mr. G. Joseph Weller: Well, if we conceive, there is no expectation of privacy.

You'd have to go to direct that theory.

Might I add on that point also that in the dissent by Mr. Justice Black in the Mancusi case, he suggested that perhaps it would be proper to combine legitimately on the premises and directed that.

If that would be a test, I think it would be an extension of what the present test is, but if that's a test, we still meet that in this case.

Justice William H. Rehnquist: Is that Mancusi was a building, not a car?

Mr. G. Joseph Weller: It was an office.

Justice Lewis F. Powell: That's the presence or absence of probable cause that make any difference in this type of situation?

Mr. G. Joseph Weller: Not as far as standing is concern because that's what we would like to contest.

Justice Lewis F. Powell: All right --

Justice Potter Stewart: Well, that's the issue on the merits that's decided on this case.

Mr. G. Joseph Weller: That's correct Your Honor.

Justice Lewis F. Powell: All right, but let's assume for the moment there was probable cause to stop this automobile, would you still be making the same issue with respect to standing to conduct a sort of pat down search that was approved in Robinson?

Mr. G. Joseph Weller: It's a probable cause to stop the vehicle?

Justice Lewis F. Powell: Yes, would that have been permissible or would the individual who were patted down after the vehicle had been stopped with probable cause have standing to object?

Mr. G. Joseph Weller: I would think so because he first to have standing to challenge has being patted down, that's his person, and I think he also has standing to contest to stop.

That's not saying that there's probable cause, you will lose or he may lose.

Justice Potter Stewart: But if he conceives there is probable cause, he is not --

Mr. G. Joseph Weller: Well then --

Justice Potter Stewart: -- going to object to it.

Mr. G. Joseph Weller: He's conceited the issue, it's not a standing question it's not just an issue.

Justice John Paul Stevens: But the other side of the coin is if you assumed there is no probable cause, it still doesn't do your client any good if he has no standing.

The search could be grossly illegal and he still has nothing to complain about.

Mr. G. Joseph Weller: That is true.

I was just thinking what it would happen in the case of a husband and wife.

One of whom is the registered owner of the car, we going to say that both would not have standing?

Or that to me seems suggest rather absurd result.

I don't think that --

Justice Thurgood Marshall: Well that's not yet involved in that closed husband and wife law.

Mr. G. Joseph Weller: I have nothing further if there's no further question.

Chief Justice Warren E. Burger: Very well.

Justice Lewis F. Powell: May I ask you the question -- about your adversary.

What about the driver of the stolen car?

Mr. G. Joseph Weller: I have no problem with that.

I don't think the driver of a stolen car has standing.

Justice Byron R. White: So you think that if I steal a car and I'm driving down the road and the policeman just stops the car without probable cause and searches it that I can object to it?

Mr. G. Joseph Weller: I would hate to argue that issue and I don't think that would be the case.

It's legitimately on the premises again not legitimately on the premises.

That's a simple enough rule and I think it's for practical reasons the car would be retained.

Justice Byron R. White: Very strategic, very strategic.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case has been submitted.