DUNAWAY v. NEW YORK
Legal provision: Amendment 4: Fourth Amendment
Argument of Edward J. Nowak
Chief Justice Warren E. Burger: We'll hear arguments first this morning in Dunaway against New York.
Mr. Nowak, you may proceed whenever you are ready.
Mr. Edward J. Nowak: Mr. Chief Justice, and may it please this Court.
This case directly puts in issue the rights of our citizens to be free from arrest or seizures for purposes of police investigation without probable cause under the Fourth and Fourteenth Amendments of our constitution, and as applied by this Court in 1975 to the case of Brown versus Illinois.
This case may also present a further issue, because if this case is not decided in accordance with Brown versus Illinois, then this Court will be faced with resolving the issue of the importance of the -- or the important right of our citizens to be free from unreasonable seizures for purposes of investigative detention.
A question that was left open by this Court in Terry versus Ohio and again left open in Morales versus New York.
If I may briefly outline the facts, there was a murder in the City of Rochester at a pizza parlor, March 26 of 1971.
The proprietor of that establishment was fatally wounded during the course of an attempted robbery.
The next fact that we have from the record, we do not know what the police did from the record between March 26 and August 10, but we know that on August 10, the police received information from an inmate who was incarcerated in the Monroe County Jail whom they had never used before, who was never established in this record as having been reliable.
They received information from this Mr.Sparrow, indicating that a Mr.Cole and a Mr.Irving Axlerod committed this particular murder at the pizza parlor.
At that point in time, the police officer who was in the jail called the lieutenant in charge of the criminal investigation of the physical crime squad.
The lieutenant came down to the police headquarters at about 8 o'clock at night, and he questioned Mr.Sparrow and he asked Sparrow where he got his information.
How did he come about knowing this?
Sparrow indicated that Cole told he did it.
The police had then went and confronted Cole who at that time was also incarcerated in the Monroe County Jail.
After two hours of questioning, Cole persisted and denied any involvement whatsoever in this homicide.
He said, “I had nothing to do with it, but I'll tell you who did, I didn't do it but Irving Axlerod did it with another guy called Ba Ba Adams.”
The police at that point said, “Who told you this Mr.Cole?” “Somebody else, Adam's brother a guy named Hubert Adams.”
“Well where is Hubert Adams?”
“He's in the Elmira Correctional Facility”, which is about 90 miles south of Rochester.
What did the police do?
Again, I'd like to emphasize that Mr.Cole is a person charged with a crime, never having been used at all in any way.
His reliability has never been established.
And while his reliability had never been established, he is denying that he was involved in this crime which is the original information that they got that he was involved.
Justice Potter Stewart: Where was the -- where did the interrogation of Cole take place?
Mr. Edward J. Nowak: At the Monroe County Jail.
Justice Potter Stewart: Where he was incarcerated on another charge?
Mr. Edward J. Nowak: He was incarcerated then they took him to from the jail to an interview room and questioned --
Justice Potter Stewart: He was already in jail on some other charge?
Mr. Edward J. Nowak: He was in jail on other charges, that's correct.
Justice Potter Stewart: So he wasn't brought to the jail for interrogation?
Mr. Edward J. Nowak: No he wasn't.
Now, Cole gave this information.
Now, what did the police do when they had this information?
They didn't go question Hubert Adams who was the source of the information to try to verify an unreliable informant, instead the --
Chief Justice Warren E. Burger: I thought you -- I think for the third time you called him an unreliable informant.
Is the first information that a citizen gives to police inherently unreliable on your theory that is --
Mr. Edward J. Nowak: I've --
Chief Justice Warren E. Burger: -- must he give several reliable reports before he establishes his reliability?
Mr. Edward J. Nowak: It would be preferable if he did.
If he didn't, it must be verified by some other source.
Chief Justice Warren E. Burger: But it's inherently unreliable if it's the first time the police hear from the informant.
Mr. Edward J. Nowak: If the police hear from him the first time and they can -- then they go, like to the scene, and what they see if a person on a tip says, “So and so is selling marijuana and possesses -- and also has a firearm and he's on the corner of” -- let's pick two streets -- “main street and state street.”
And the police go to the corner and there is a guy dressed as the informer said, he would be.
Okay, then we have a different situation because now they've acted on some information, they have gone and they've been able to corroborate what his story was.
In this case, the police took no action to corroborate this person who just gave them some information while he's denying his own guilt and --
Chief Justice Warren E. Burger: So from your point of view, the results obtained by the police validate the accuracy of the tip as it were?
Mr. Edward J. Nowak: No because they didn't corroborate it before.
Chief Justice Warren E. Burger: No but hypothetically, you said, if they did this in the hypothetical case?
Mr. Edward J. Nowak: But they didn't in this case.
Justice William H. Rehnquist: What's your authority for the requirement of corroboration as you put it in a situation such as this where there was no search warrant or arrest warrant at hand?
Mr. Edward J. Nowak: In a situation such as this, there is no authority and I think this is the first case that we'll talk about that particular point of law.
In drug or firearm cases, we have -- there are cases that indicate the tip must be substantiated to some form.
Justice Potter Stewart: That's the Draper case.
But are we --
Mr. Edward J. Nowak: Right.
Justice Potter Stewart: Am I quite mistaken in my apprehension that there's no issue of whether there was or was not probable cause --
Mr. Edward J. Nowak: There is no issue on that.
Justice Potter Stewart: -- in the case that everybody agrees there was not?
Mr. Edward J. Nowak: There is no issue whatsoever.
Justice Potter Stewart: That's what I thought.
Mr. Edward J. Nowak: Every court has held there is no probable cause in this case.
Justice Potter Stewart: And the state --
Mr. Edward J. Nowak: And the prosecutor --
Justice Potter Stewart: -- state actually concedes it.
Mr. Edward J. Nowak: Right but the argument will come down to reasonable suspicion when whether or not that existed and that's why I'm talking --
Justice Potter Stewart: Why would they raise -- there was not mind-run probable cause, isn't that correct?
Mr. Edward J. Nowak: That's correct.
Justice Potter Stewart: That's what it thought.
Mr. Edward J. Nowak: What subsequently followed was that the police then issued an order to go pick up and bring in Mr.Dunaway acting on this information.
And that night two teams of police officers went out were unable to locate Mr.Dunaway during the evening hours.
And at 8 o'clock on the morning they went to his house.
Upon arrival at this house they asked where he was, his mother said, he's not home.
The police officers, “Well, I'm going to see for myself” and they walked in and looked through the house, Mr.Dunaway was not there.
Another officer who was with this team was standing watch of the house to make sure as he said, “No one jumps from windows or tried to run out the backdoor.”
He noticed a young lady leave the house and go to a house three doors down, so when the team of detectives who entered the house came back out, he said, “Let's follow her ‘cause she went a couple of houses over and he might be there.”
As they went to the house, Mr.Dunaway was there.
Mr.Dunaway was subsequently taken downtown by the police and questioned.
We have a fact that now becomes now important, I think to the entire issue and in this case, and that is whether or not the petitioner was in fact arrested or seized in accordance with the Fourth Amendment.
Justice Thurgood Marshall: Well why give us some facts, what did they do, did they --
Mr. Edward J. Nowak: The police said, to -- the police testimony is, “We asked him if he would go downtown with us”, and he said, “Yes.”
The defendant's testimony is that they came up and they said, “We're going downtown to question you.”
And then one of the officers grabbed him by the belt of his pants and led him toward the police car.
Justice Thurgood Marshall: And how many police officers were there altogether?
Mr. Edward J. Nowak: There were three police officers.
Justice Thurgood Marshall: Three of them making an (Voice Overlap) --
Mr. Edward J. Nowak: Three police officers who stood -- who stands 6'3” over 210 pounds.
This defendant's an 18 year old black youth who weighs about 145 pounds.
Now the findings of fact --
Chief Justice Warren E. Burger: Ordinarily, that'd be enough force to look like an arrest, wouldn't it?
Mr. Edward J. Nowak: It certainly would.
The hearing court in fact found that there was an arrest in this case.
The issue that comes forth is that the appellate division found that the defendant went voluntarily.
The Court of Appeals of the State of New York did not deny this permission to appeal, dismissed our application.
We filed petition for certiorari.
Chief Justice Warren E. Burger: Was there anything inherently inconsistent between a person being arrested and going without resistance?
Mr. Edward J. Nowak: No, that's the exact point that I'm about to make Your Honor, is that if a person is accosted by the police and goes along voluntarily, there are many federal cases which hold that that still constitutes an arrest as long as the person being seized feels that he is so restricted.
And the testimony in this case, which is crucial, is that Mr.Dunaway asked the police in the police car while going downtown, “Why do we have to go downtown?”
And the police said, “You'll find out when we get there.”
Now I think that that type of a request indicates that the police had seized this individual and in fact had arrested him.
At this point in time, they didn't answer his direct request to find out why they had to go downtown.
And the record, I think, is also clear that there was an objection to one of the questions about putting emphasis, counselor on the word “had” and the court said, “Objection overruled, the officer knows what were driving at” and the officers says, “Well, if I remember correctly, that's what he said, why do we have to go downtown.”
And so I think that the state of the mind of this defendant is clear that he felt he was arrested.
It's also clear from the stipulation on the record that the people who stipulated the -- officers when they went out intended to arrested because the officers many times had said, “When we have a warrant of arrest, our directive is to pick them up and bring them in.”
Justice Byron R. White: Well didn't the state courts agree in their final judgment there was a detention?
Mr. Edward J. Nowak: The agreed that there was a detention, that's correct.
Justice Byron R. White: Against his will.
Mr. Edward J. Nowak: Well, they said, he went along voluntarily, but a detention and I don't see --
Justice Byron R. White: Well, it said, it was --
Justice Potter Stewart: Where do you find this voluntary in the (Voice Overlap)?
Mr. Edward J. Nowak: The appellate division opinion in the record, I believe it's page --
Justice Potter Stewart: But there was no opinion.
Mr. Edward J. Nowak: There was an opinion by the appellate division the second time Your Honor.
Justice Byron R. White: Page 124 of the --
Mr. Edward J. Nowak: Of the appendix.
In quoting some of the facts of this case, they say he went along voluntarily.
And it's my statement that when you are arrested you need not resist arrest.
And the holding of the various --
Justice Byron R. White: Well it says that this case involves a brief detention.
Mr. Edward J. Nowak: That's correct, it says that as well.
Justice Byron R. White: And it says that -- and that therefore is controlled by Morales.
Mr. Edward J. Nowak: That's correct.
Justice Byron R. White: Which did involve a detention?
Mr. Edward J. Nowak: It did, and that's why I don't know why the appellate division threw in the word voluntarily.
Justice Byron R. White: (Voice Overlap) admittedly on less than probable cause.
Mr. Edward J. Nowak: That's correct.
Justice Potter Stewart: Right, well --
Mr. Edward J. Nowak: And the appellate division --
Justice Potter Stewart: -- well I'm just reading the opinion now by Judge Moore (ph) how do you pronounce his name?
Mr. Edward J. Nowak: Moore (ph)
Justice Potter Stewart: He says that “According to the police testimony, defendant was asked to come downtown to talk and that's voluntarily.”
Mr. Edward J. Nowak: That's correct.
Justice Potter Stewart: Is that --
Mr. Edward J. Nowak: He quotes the police testimony.
Justice Potter Stewart: Well but the --
Mr. Edward J. Nowak: But that's contrary to the finding of the fact made by the hearing court who says --
Justice Potter Stewart: Does the Court of Appeals say that --
Mr. Edward J. Nowak: The Court of Appeals dismissed our application.
Justice Potter Stewart: -- had in fact that he did come down voluntarily?
Mr. Edward J. Nowak: The Court of Appeals dismissed our application for permission to appeal, and so we filed --
Justice Byron R. White: Nobody found that he came voluntarily.
No court found that he came voluntarily.
Mr. Edward J. Nowak: As of -- as an affirmed finding of fact I say that that's true, they didn't but they've put the word --
Justice Byron R. White: The district -- the trial court found just to the contrary.
Mr. Edward J. Nowak: That s correct.
Justice Byron R. White: And that --
Mr. Edward J. Nowak: And the people are contending in point one of their brief that he did go along voluntarily and this was a consensual case.
Justice Potter Stewart: And this was a finding was otherwise, isn't it?
Mr. Edward J. Nowak: Pardon?
Justice Potter Stewart: Wasn't -- there's no -- the finding was otherwise.
Mr. Edward J. Nowak: That's correct and that's what I'm trying to point out to the court at this time that I think that the finding is otherwise, but the people say that he did go along voluntarily and they're relying on the use of the word voluntary in that appellate division opinion.
Justice Potter Stewart: Well but --
Mr. Edward J. Nowak: I don't see how they can use it when they say it at the same he was detained, it seems to me a --
Justice Byron R. White: (Voice Overlap) he said, to retry the facts here I think you ought to get to the law on this case.
Mr. Edward J. Nowak: Okay, I'd be happy to Your Honor.
It's my feeling that under the law of Brown versus Illinois, this petitioner was arrested.
He was also arrested concedingly without probable cause and the question becomes as.
“Do we apply the exclusionary rule?”
And, “Was the confession attenuated from the initial illegality?”
That is the detention of this person at police headquarters without probable cause.
Justice Potter Stewart: The Fourth Amendment doesn't say anything about arrest, it talks about seizure.
Mr. Edward J. Nowak: It does talk about seizure Your Honor.
Justice Potter Stewart: And that's the real question, isn't it?
Mr. Edward J. Nowak: Well, I believe that --
Justice Potter Stewart: And you're not seized --
Mr. Edward J. Nowak: -- if a person's arrested he is seized --
Justice Potter Stewart: It's pretty clear that you're not seized if you consent to go along with somebody.
Mr. Edward J. Nowak: That's correct.
Justice Potter Stewart: That's not a seizure.
Mr. Edward J. Nowak: That's correct.
Justice Thurgood Marshall: Yes, but if you get -- if you consent to go along with a man with a machinegun, I'm not too sure that's consent.
Justice Potter Stewart: Well then it doesn't consent.
Justice Thurgood Marshall: Well, what did all (Voice Overlap) --
Justice Potter Stewart: If you're consenting to the police authority of saying, “We're going to go downtown.”
And you asked them why you have to go, it's obviously you don't have to resist --
Justice Thurgood Marshall: Well, the --
Mr. Edward J. Nowak: -- and you're going along voluntarily with the police is not consent and there are two different terms of art.
Justice Thurgood Marshall: Well, if the police wanted him, why didn't they just telephone him and tell him to come on down?
Mr. Edward J. Nowak: That's -- they didn't do that.
That's a significant factor that they didn't ask him --
Justice Thurgood Marshall: And they didn't send one, they sent four.
Mr. Edward J. Nowak: -- by phone.
Justice Thurgood Marshall: Four officers.
Mr. Edward J. Nowak: Three officers.
Justice Thurgood Marshall: Three?
Mr. Edward J. Nowak: That's correct.
Justice Thurgood Marshall: To deliver a message to please come down.
Mr. Edward J. Nowak: They said, “We want to talk to you downtown.”
Justice John Paul Stevens: Mr.Nowak, I'm sorry to go back to the facts, but there seems to be a general consensus that there was no change in the finding of the trial judge, but the -- on page 126, the appellate division said, “This testimony shows that the police illegally detained the defendant for questioning.”
And then at the top of page 127 they say, “In our opinion, the police conduct here is proper.”
So isn't it rather clear that you are correct in saying that they did find that there was a voluntary submission to the police?
Mr. Edward J. Nowak: No I don't believe that's what they meant by that.
They felt --
Justice John Paul Stevens: Which you --
Mr. Edward J. Nowak: -- that the detention was legal because of the application of a -- of the Morales case, which is a New York Court of Appeals case, --
Justice John Paul Stevens: In other words, the reason (Voice Overlap) --
Mr. Edward J. Nowak: -- what it says, “You can detain people on reasonable suspicion and not probable cause.”
Justice John Paul Stevens: I see, alright.
Mr. Edward J. Nowak: And that's why they classified the detention as being legal.
And it -- in my opinion it's clearly violative of the Fourth Amendment and we have to look at whether or not there is now the attenuation if needed in applying the criteria as established by this Court in Brown.
The first criteria is the proximity of the arrest to the confession.
In Brown, there were two hours between the initial arrest and the detention.
In this case, there was one hour.
Was there any intervening circumstance, the entering of counsel, the arraignment before a local magistrate, in Brown there was none, in this case there was none.
What was the purpose of the official misconduct in this case?
It was clearly by the police, his own admission for purposes of interrogation exactly the same in proper purpose in Brown.
Justice John Paul Stevens: Mr.Nowak excuse me again, but you're involved -- arguing the attenuation point now if I understand you correctly?
Mr. Edward J. Nowak: That's correct.
Justice John Paul Stevens: Yes, because there's an intermediate point and the legal proposition I have -- had disputed is whether or not a -- the police can ever bring a man in on -- just on reasonable suspicion.
Is it your view that it can never be done, say, to fingerprint him, to put him on lineup, ask him questions, “Is there any time when a suspect against to him there's no probable cause but there is reasonable suspicion can be detained?
What is your view of the law?
Mr. Edward J. Nowak: My view is that, at this time under the law of Brown it can not when he's brought in because in effect he is arrested at that point in time.
When he is brought in, in that type of a fashion he can not be -- what was done to this petitioner can not be done to any one for any purpose, they need probable cause.
Justice John Paul Stevens: For fingerprinting or for a lineup?
Mr. Edward J. Nowak: For fingerprinting or for a lineup, now there could be a situation could be developed where they could go to his house and say to him, “Would you like to come?” And he says, “No.”
Justice John Paul Stevens: But he says no, you always have --
Mr. Edward J. Nowak: Okay.
Justice John Paul Stevens: -- a case which says no, and they say no, we're --
Mr. Edward J. Nowak: Right.
Justice John Paul Stevens: -- we're saying yes.
Mr. Edward J. Nowak: They'd take them him forcibly.
If the police try to setup an appointment with him if they go to his house and say “We would like to question, let's sit here and have a talk.”
That might pose a different problem because he may not be seized for purposes of Fourth Amendment, but once seized, I think you need probable cause.
Justice John Paul Stevens: And that's for a lineup as well as questioning in review of your --
Mr. Edward J. Nowak: I would think so, yes sir.
Justice Byron R. White: Or for a fingerprinting.
Mr. Edward J. Nowak: I think that the Court held that in Davis versus Mississippi.
Justice Byron R. White: Yes.
Mr. Edward J. Nowak: And it -- that's why I feel that that is the law of the state.
The last issue under Brown to determine whether or not there's attenuation after a purpose of the misconduct is the flagrancy.
And this is where there is some difference of opinion between myself and the district attorney's office.
The purpose or the flagrancy of this conduct -- what is flagrant official misconduct, I guess is the real question.
And I think in the concurring opinion of Mr.Justice Powell in Brown versus Illinois, he said, that there are three types or three examples he gave of official flagrant and misconduct.
The first is when the police clearly act without probable cause.
The second is when they make a pretext arrest and thirdly, when they go in with arms, weapons drawn without probable cause.
And he cites those three examples.
Clearly Brown fell within example three.
He was accosted at gun point in his own home.
Example three does not apply to this case and therefore the people say there's no flagrancy.
But if you look at Mr.Justice Powell's concurring opinion, he says that the first example he gives is when they make an arrest without probable cause.
In this case they conceded that they didn't have probable cause, they were directly asked by the defense attorney on cross-examination.
They said, “Did you have probable cause to get a warrant or did you go get a warrant?”
And he said, “I didn't go get a warrant because I knew I didn't have probable cause to get one.”
Yet knowing this they went to his house and seized him, and I submit to you as the dissent at the appellate division clearly stated this constitutes flagrant official misconduct when the police know they don't have probable cause and they act without it.
And I think that this is a flagrant misuse of official misconduct and the exact purpose of the exclusionary rule as it was used in Brown would be served again by applying it in this case.
I would only point out that originally in 1975 when Brown versus Illinois was decided, this case had been up with this Court and certiorari was granted and it was remanded for a rehearing and we are --
Justice Byron R. White: But when the -- when these police acted, Morales was on the books in that circuit, wasn't it?
Mr. Edward J. Nowak: Morales in my opinion Your Honor has never been the law because it's been dicta, and I think if the Court would examine the opinion in Morales --
Justice Byron R. White: No, what would reasonable police people think about Morales?
This Court -- this -- the New York courts thought this case was governed by Morales, the court -- the appellate division did, they thought it was a law in New York?
Mr. Edward J. Nowak: That's correct.
Justice Byron R. White: Well what about police operating under judgments like this?
Mr. Edward J. Nowak: If in fact the police are acting under a statute which is later declared invalid, there are court cases which indicate that the police are acting in good faith and that is a criteria to consider.
Justice Byron R. White: Well Morales is just a -- I suppose, just a construction of the New York statute to the powers of the police?
Mr. Edward J. Nowak: I don't believe that it is, but in any event what if there was --
Justice Byron R. White: Well what it is then?
Mr. Edward J. Nowak: I think it's their interpretation of what the federal constitution says, and that's what the New York court did.
They said, “We interpret the federal constitution as saying this and we're going to hold that this is in fact the case.”
If the police were aware of Morales, I submit to the Court that when they testified at the hearing in 1977 that was conducted, they would've said, “Counselor, we don't need probable cause to pick them up, we only need reason of suspicion.”
But they didn't, if they were aware of Morales, that's what would've said.
Now given the fact that they did or even if they were acting in some sort of good faith to a law which I say is still not on the books in the State of New York because it was dicta, the Court of Appeals when Morales came back said, that he consented to the police seizure and therefore we never get to the question we addressed.
Justice Byron R. White: Well what do you think -- Well, police don't expect you to (Inaudible) dicta in holding, is that it?
Mr. Edward J. Nowak: No I'm not suggesting that they should, but I'm saying that there really was no reason or reasonable way or reason for the police to believe this was the law in the State of New York.
But even if it was, good faith alone I don't think should control.
Justice Byron R. White: Do you say the police said to themselves, “We don't have probable cause and we don't need, and whether we need it or not we're taking the fellow down to the precinct.”
Mr. Edward J. Nowak: That's correct.
Justice Byron R. White: That's your --
Mr. Edward J. Nowak: That's exactly what I feel.
They wanted to solve this murder and they were going to go get this defendant instead of following leads that they had available to him, and I don't think that's proper.
Justice Potter Stewart: Well Judge Denman's concurring opinion did rely precisely on the point implicitly suggested by my Brother White's question, didn't he, Judge Denman?
Mr. Edward J. Nowak: She was bound by the holding of the Court of Appeals.
Justice Potter Stewart: She?
Mr. Edward J. Nowak: That's correct.
Justice Potter Stewart: In --
Mr. Edward J. Nowak: In Morales.
Justice Potter Stewart: In Morales, yes.
Mr. Edward J. Nowak: But the Morales opinion, I would only ask the Court to note that that opinion specifically makes the -- all the findings that she relies on and then says, “We have a second basis for our holding.”
That is the defendant Morales consented to the police detention, and therefore it aviated the real purpose of the rule they were seeking to develop.
They said, that he consented when they -- when --
Justice Byron R. White: But this Court in alternative holdings, they're both holdings.
Mr. Edward J. Nowak: I guess it could be said, both holdings, maybe they made two separate ones and then there was no need to make it because they were relying on a consent issue.
When an application for petition -- a petition for certiorari was made to this Court it was denied.
And I think properly so because there was no question because he consented.
This Court specifically remanded Morales to find out if he was arrested, whether he consented and whether there was probable cause.
And they said, he was not arrested because he consented.
And I think that obviously answers the question that this Court was seeking to address at that point in Morales, and that's why I say it really never became the law.
But even if it did, and the court wishes to look at good faith, it is only one of the three or four criteria that should be attached to attenuation.
And I think there is no way in this case that there was any attenuation.
I respectfully submit to the court that in this particular case, Mr.Dunaway was seized for purposes of interrogation.
This Court in 1975 remanded this case for further consideration of Brown versus Illinois.
The hearing court took in all the testimony and found as a fact that this defendant was arrested, he was arrested without probable cause and in their -- in the hearing court's opinion even without reasonable suspicion.
And further, the people offered absolutely no evidence at the hearing to show attenuation.
Justice John Paul Stevens: Mr.Nowak, on the attenuation point, what is the ultimate conclusion one draws if one finds there was attenuation?
Is it a conclusion that the confession was voluntary?
Mr. Edward J. Nowak: If one finds attenuation?
Justice John Paul Stevens: Yes.
Mr. Edward J. Nowak: Before one gets to that question the threshold question is, is there a voluntary confession under the Fifth and Sixth Amendments?
If you answer that question yes, then we go the Fourth Amendment question that was posited in Brown.
Justice Potter Stewart: As I understand it, there's no claim in this case.
Mr. Edward J. Nowak: And there is no claim that this confession was not --
Justice Potter Stewart: And in fact was involuntary.
Mr. Edward J. Nowak: No there isn't, and the same -- this is the facts of Brown and I say that our --
Justice John Paul Stevens: What is it that attenuate -- I don't -- I have to confess, what is it that -- when he is trying to find out by asking whether there was attenuation?
Mr. Edward J. Nowak: Should the confession be suppressed, should be the exclusionary rule be applied?
Justice John Paul Stevens: But attenuation -- if at attenuation like an adjective, what -- if it is attenuated then what -- I mean, is that mean if it's attenuated then it's admissible or is it?
Mr. Edward J. Nowak: Then it's admissible in evidence because the purge of the initial --
Justice John Paul Stevens: Then what is -- what are you looking for when you ask about attenuation? What kind of conclusion.
Mr. Edward J. Nowak: You are looking to see if the defendant's statement was sufficiently and independent intervening act of freewill.What was in --
Justice John Paul Stevens: But if you found it was voluntary, haven't you found that?
Mr. Edward J. Nowak: Well, that's where I disagree because the purpose of the fourth --
Justice John Paul Stevens: The two kinds of voluntariness, apparently?
Mr. Edward J. Nowak: Voluntariness under the Fifth Amendment is one question.
But an act of freewill and independent intervening act of freewill, which is what this Court specifically drew upon in the Wong Sun case and again in Brown, because Brown's confession was voluntary.
The court looked and said, “Can we say that his act of confessing was not a result of the police illegality if they went in and seized him trying to get some evidence?”
Justice Potter Stewart: That's it, that's it.
It has nothing to do with this freewill (Voice Overlap) --
Mr. Edward J. Nowak: It has nothing to do with that, the voluntariness.
Justice Potter Stewart: -- as you said, that's conceded that this was a voluntary statement.
Mr. Edward J. Nowak: It was voluntary.
Justice Potter Stewart: The attenuation as I understand it and perhaps I misunderstand it is whether or not its sufficiently disconnected with the Fourth Amendment violation by the police.
Mr. Edward J. Nowak: That's correct, and if it's sufficiently --
Justice John Paul Stevens: What makes it disconnected other than voluntariness, I just --
Justice Potter Stewart: (Inaudible)
Mr. Edward J. Nowak: The matter -- there are certain facets annunciated in Brown.
Unknown Speaker: (Voice Overlap)
Mr. Edward J. Nowak: One was the arrest.
Did they exploit the illegal detention to get this confession?
Or was he detained, was he arrested illegally, was he taken to the courtroom, was he arraigned given a lawyer?
And then he says, “Look I got a lawyer and I've talked to him but I still want to confess.”
The court can look at that for Fourth Amendment purposes and say, “That was an act of his own will after he had knew what was going on.”
They didn't exploit the illegal arrest to get that confession from him, but on the other hand, if a defendant is illegally arrested and as a result of that arrest directly within hours, minutes of being seized gives a confession.
He's never been -- I'll had a lawyer under the proceedings, he's never been arraigned.
The purpose was not to legitimately arrest him to charge him with a crime, but was for investigation.
The court looks at the balancing and says, “The weight is on the side -- on the wrong side here, this confession must be excluded because it was obtained in violation of the Fourth Amendment despite the fact it was obtained properly under the Fifth and Sixth.”
And what the New York Court of Appeals says is, “If you can comply with the Fifth and Sixth, we'll forget the Fourth.”
And that's what I submit that they've tried to do in this particular case, and because they've tried to do that, I respectfully submit that the judgment of the New York court be reversed.
Judge Mark's original decision, after hearing all the evidence in this case should in fact be reinstated.
The confession suppressed and his judgment reversed.
Justice John Paul Stevens: Is there any authority for your theory other than the Brown case?
Justice Potter Stewart: Wong Sun.
Mr. Edward J. Nowak: Well Wong Sun is also the doctrine that -- the case is --
Justice John Paul Stevens: Is it -- the Wong Sun, I should have reread it I suppose.
Does that hold that there can be a violation of the Fourth without being a violation of the Fifth and the --
Mr. Edward J. Nowak: Yes, the Fourth Amendment --
Justice John Paul Stevens: On the oral confession?
Mr. Edward J. Nowak: That's correct it's totally separate and apart from the Fifth and Sixth Amendments.
It's the product of the --
Justice John Paul Stevens: I'm sorry, it's the fruit, the fruit.
Mr. Edward J. Nowak: That's correct it's the fruit of an illegal arrest or detention.
If there'd be no other questions and if the Court please, I'd like to reserve some of my time for rebuttal.
Argument of Melvin Bessler
Chief Justice Warren E. Burger: Mr.Bressler.
Mr. Melvin Bessler: Mr.Chief Justice, may it please the Court.
We have -- the parties have framed the issues in some detail, but the real issue as I think, the bottom line issue is shall this concededly voluntary statement be suppressed.
And I would suggest that there are two separate theories, separate theories but interrelated why they should not -- why it should not and why the statement is perfectly good as it is.
Rather obviously those two theories are expressed in the Brown v. Illinois and the New York theory which I will refer to as the Morales theory, for simplicities sake which I think the Court now is aware of.
There are one or two preliminary fact -- factual matters I'd like to go into.
I think one of the things the Court might be interested in is Officer Luciano's part in this whole episode from the appendix and the testimony, although he made nothing of it in our statement of the briefs.
You will see that Officer Luciano was at headquarters or somewhere nearby when he was told to go pick up the other two officers, Nicholson and Ruvio, and to -- he was searching them around.
He really knew nothing about what they were doing, they told him, “Well, we got to go hear” and they said, “By the way, let us stop off and see if this guy Dunaway is home.
We tried before and he wasn't there.”
He was just a (Inaudible) so to speak.
He had no part in it.
When they got out of the car to do whatever they were doing, he'll -- he hung back.
He didn't go to the first house to Dunaway's home, he stayed in the driveway and used his eyes, his --
Chief Justice Warren E. Burger: Well what difference does this make?
What's the point you're making?
Mr. Melvin Bessler: Well there was a question before, Your Honor, about the fact that there were three officers and --
Chief Justice Warren E. Burger: Well really, what difference does it make whether there are 3, 1 or 24?
Mr. Melvin Bessler: Well it comes down to the question of the voluntariness.
It happens that he was the officer who was right there.
And then also later on, it goes to the question of whether or not there was an illegal exploitation of the arrest if it was illegal.
Now if I understand what this Court told us in Brown as an extension of Wong Sun, it has to be a balancing test.
In order for the rule to apply, you assume the initial illegality, and wherefore the purposes of argument will be about here.
We'll assume that the initial detention, we don't concede it but we'll assume it, was improper.
From that point on there was no exploitation of any illegality.
The two officers or the three officers who transported him downtown never spoke to him, there were no drawn guns, there were no threats, there was no bodily movement, they did not manhandle him, they did not put him in handcuffs.
When he got downtown he was not booked, he was not fingerprinted, he was brought immediately to an interview room.
In the interview room, he was questioned --
Justice Byron R. White: And you're suggesting the interview is not an exploitation?
Mr. Melvin Bessler: I'm suggesting that they did not seek to exploit the illegality assuming that the initial detention was --
Justice Byron R. White: Well he was seized -- he was -- we're assuming he's being illegally held in that room.
Mr. Melvin Bessler: That's correct.
Justice Byron R. White: And you're suggesting that -- oh, I guess you are that questioning him while he's being illegally held is not an exploitation of the illegality?
Mr. Melvin Bessler: Yes Your Honor and I'll tell you why.
At the -- almost the moment he walked into the room, he was given his full Miranda warnings.
Justice Thurgood Marshall: Mr.Bressler, was he given a choice to enter the interview room or not?
Mr. Melvin Bessler: I assume not Your Honor.
Justice Thurgood Marshall: I do to.
Mr. Melvin Bessler: Therefore, what I'm trying to do is make a comparison between this case and the Brown test on this balancing question.
Justice William J. Brennan: Well, haven't you already held that just mere giving Miranda warnings doesn't --
Mr. Melvin Bessler: That is correct Your Honor, I --
Justice William J. Brennan: -- does affect the illegality?
Mr. Melvin Bessler: I accept that but I am saying that in a case like this where the officers in the first place acted in good faith because they were following what was then the law of New York, where they did nothing of it --
Justice William J. Brennan: I know but now you're -- we've assumed -- we're assuming an illegality.
We assume an illegal detention or illegal seizure.
Mr. Melvin Bessler: That's correct, but in exercising your judgment in a balancing test as was expressed in Terry and Adamson and few other cases, I'm suggesting that the question I would like answered or what I think favors us is that if the police act in good faith and we assume the illegality and they do very little if anything to exploit that illegality other than move him from one place to another against --
Justice William J. Brennan: Then interrogate him.
Mr. Melvin Bessler: -- and then question him after warning him of his Miranda rights telling him that he doesn't have to speak, that he can have a lawyer and that he can terminate it at any time, that under such cases the two-pronged reasons for excluding are not benefited.
If I understand the purpose of the exclusionary rule, it is to protect the court's integrity so they had not using tainted evidence and in addition to have a deterrent effect.
Under the facts of this case, there would have no deterrent effect because the police thought they were doing what was allowed, and matter of fact arguably to this moment that is the law of New York, Morales allows that.
Justice William J. Brennan: That's not a Brown argument at all, that's not a Brown argument at all.
That's just an argument that the exclusionary rule shouldn't apply when the officers have some subjective or objective basis, reasonable basis, for doing what they did.
That isn't an attenuation argument, is it?
Mr. Melvin Bessler: No but Your Honor I am --
Justice William J. Brennan: As I -- I don't see that -- did you present this argument to the appellate division that even if it's illegal and even if there was no attenuation, the officers were nevertheless in good faith and the evidence should not be excluded, you didn't argue that did you?
Mr. Melvin Bessler: I argued Morales in the New York courts Your Honor which --
Justice William J. Brennan: Well in Morales --
Justice William H. Rehnquist: Well you were the appellee and not the appellant in the appellant -- appellate division, were you?
Mr. Melvin Bessler: No, no we were the appellants the last time up.
Justice William H. Rehnquist: Because the Supreme Court had suppressed the confession?
Mr. Melvin Bessler: Yes, the trial court suppressed, we appealed.
Justice Potter Stewart: And you argue in Morales only insofar as you were saying this was legal under Morales?
Justice William J. Brennan: Right.
Mr. Melvin Bessler: Well of course the argument -- the question before the appellate division was somewhat different than it is now.
There -- in New York -- in the New York courts Morales is the law and as a matter of fact the majority opinion rested it mostly on those grounds, also on Brown grounds, of course we argued both.
There was a split, there was a four to one, one dissent, three concurrences on the Morales theory and the Brown theory and a concurring opinion on Morales only, that was Justice Denman.
But what I am saying is in exercising this balancing test, one of the things I assume you would want to know is if suppression is to be had, will it benefit the purpose of the exclusionary rule, and I'm saying that under the facts of this case it will not.
On two grounds, in the first place, as they already tried to indicate, there would be no deterrent effect if the police reasonably believe they are following the law as it exists, and the testimony of the officer on the stand clearly indicates that it does.
I think as a matter of fact I have it, it's at -- it's on our brief at page 27 and in the appendix at page 61.
The officer said, he had “the right to take him downtown, I did not have probable cause to arrest him, I did have his words probable cause to take him downtown” which was his way of saying reasonable suspicion.
Justice Thurgood Marshall: Well you -- then in New York on the Morales, you don't have it either an arrest warrant.
Mr. Melvin Bessler: The way the law is in New York today, that is correct, you do not Your Honor.
Now speaking strictly to the question of attenuation, if I understand Brown correctly, that too is a balance of a different sort.
The extent of the necessary attenuation to separate the statement from the presumed illegality is always a question of fact, if I'm correct.
That I am suggesting that under strict Brown -- strictly under the theory espoused in Brown, the good faith of the officers, the minimum take, the lack of exploitation, the clearly voluntary nature of the statement itself shows that there was a separation in his mind when he made the statement as opposed to when he was arrested, assuming again that there was an illegality.
There's a separate matter which I ask the court to consider as well.
Originally, after Brown after the defendant Dunaway made his first statement, the police officer left.
Late that afternoon or early evening according to the testimony which was accepted, he asked to see the officers again and they came back late in -- later in the evening 9 or 10 o'clock after their tour of duty had long -- was long over.
And he said something like, it's in the record, he said something like, “Look, I didn't give you the whole story before I want to make it clean, the rest of it.”
And he gave them a much more detailed statement.
Now he started to name names and he cleaned up some of the things he had told them before which weren't altogether accurate.
At trial there was a preliminary hearing, a hunt -- we call it a Huntley Hearing, a pretrial suppression hearing, at which both statements were ruled admissible, however it was a joint trial.
And since the second statement had the names of the other defendants, there were Bruton problems, the trial attorney decided he didn't need the second statement, the first one was all he did need which and he proved himself correct.
He therefore never used it, but I would also suggest the fact of that second statement being absolutely voluntary to pure essence since the defendant called the police, should also be considered on the attenuation theory.
Now with respect to what facts -- some questions arose as to what happened, I think maybe I should spend a minute or two detailing what the New York rules are.
The appellate division can find facts -- the intermediate appellate courts in the State of New York can find facts.
Ordinarily, the highest court, the Court of Appeals cannot, they're a court limited to questions of law only.
In this case, I suggest that a fair reading of the opinion shows that the appellate division did find facts, and the facts that they found fully credited the police testimony to the extent that there was any conflict.
Justice Potter Stewart: As to on what issue?
Mr. Melvin Bessler: On both -- on the question of whether it -- he voluntarily went downtown.
Justice Potter Stewart: Whether he consented.
Mr. Melvin Bessler: That he -- that's correct.
That he consented to go downtown.
Justice Potter Stewart: And what part of the opinion do you rely upon it?
Mr. Melvin Bessler: May I have a moment Your Honor?
Justice Potter Stewart: Page 124 of the appendix, I think, the opinion you're referring to.
Mr. Melvin Bessler: The court will note at page 124 about two inches below, Justice Moore (ph) says a little bit in, “According to the police testimony, defendant was asked and so forth and did so voluntarily.”
Justice Potter Stewart: Yes.
Mr. Melvin Bessler: Later on in the opinion, at page 126 it point -- it's indicated with a bracket at two, it says, “This testimony shows that the police legally detained the defendant” and so forth.”
And then it says at the top of page 127, “Even if we were to find that the actions of the police officers constituted an illegal detention clearly indicating they found otherwise as a separate matter, the Court of Appeals in the State of New York can only hear questions of law.”
In this case when there was reversal, our rules require that the reversal states specifically that is a reversal on the law.
If it doesn't say anything or says law and facts then it can not go to the Court of Appeals.
In this case, there was a motion made by the defendant, petitioner here, after the appellate division holding asking them to amend their order to say that it was on the law alone, which they refused to do.
They denied the motion and for that reason it could never be heard by the Court of Appeals.
That's a clear indication that they found facts, and I'm suggesting the facts that they found where that they credit it to the police testimony with respect to the only conflict whether or not he came voluntarily.
Justice John Paul Stevens: Mr.Bressler, is it really that clear because wasn't the motion to make it exclusively on the law, so isn't it fair to say that the decision was a mixed law and fact decision?
Mr. Melvin Bessler: Yes Your Honor that is absolutely correct.
Justice John Paul Stevens: And on the mixed law and fact conclusion it is that the police conduct here is proper under Morales.
Justice Potter Stewart: Right.
Mr. Melvin Bessler: That is correct Your Honor, but I'm suggesting --
Justice John Paul Stevens: And under Morales it's proper to arrest on reasonable suspicion for questioning.
Mr. Melvin Bessler: Well there is an ambiguity, no question about it, but I'm suggesting that we -- if the entire three-man majority opinion is read, it seems clear that they absolutely credited the police testimony on their review of the facts.
Justice Byron R. White: Now, Page 125 says, “We believe this case is controlled by the recent decision of the Court of Appeals in Morales.”
Mr. Melvin Bessler: Yes Your Honor.
Justice Byron R. White: In which the court rearticulated its view that you can arrest on -- you may detain on reasonable suspicion.
Justice Potter Stewart: Right.
Justice Byron R. White: That's the way they disposed of the case, and that's why they said, the detention was legal.
Mr. Melvin Bessler: That certainly a firm interpretation Your Honor, I would urge the other one but I think the issue is clear and it's understood.
Justice William J. Brennan: Do you argue -- you haven't yet, that one -- the police may detain for questioning on reasonable suspicion.
Mr. Melvin Bessler: I'm sorry Your Honor I didn't hear you.
Justice William J. Brennan: Do you take the position that the police may detain for questioning on reasonable suspicion and without probable cause?
Mr. Melvin Bessler: Yes, I do Your Honor and --
Justice Potter Stewart: As a matter of federal constitutional law.
Mr. Melvin Bessler: Yes Your Honor, as a matter of fact I'd like to explain why.
Justice Thurgood Marshall: Can they also arrest?
Mr. Melvin Bessler: To the extent there's a distinction, I would say an arrest, no.
Justice Potter Stewart: Well, but the -- again the Fourth Amendment doesn't say a word about arrest.
We're talking about seizing him and detaining him.
Mr. Melvin Bessler: If I may, I'll explain to you why if there was a -- what the distinction is.
If there is a seizure the Court of Appeals New York's highest court, try to strike a balance between the right of privacy that every individual has under the constitution which is essentially what the Fourth Amendment provides.
And what I call the police imperative to investigate and if possible solve a crime.
Now we have here the most serious crime that man can be confused of, and that is he -- the taking of a fellow human's life, a murder.
They had reached an impasse and the Court of Appeals tried to strike a balance and the balance that they sought to strike was that where in a narrow class of cases, a very narrow class of cases, the police can demonstrate, they can articulate that they have reached an impasse in their investigation.
But that they have reasonable suspicion which is a step below probable cause to suspect that one or more individuals either has information about the crime or may be a defendant that is a perpetrator.
They can detain him for a brief period under carefully controlled conditions after fully advising him of his Fifth and Sixth Amendment rights.
As I understand it, the New York Court of Appeals said, “If you do that, then such a detention is not unreasonable within the meaning of the Fourth Amendment” and that is pretty much what I'm urging on this Court, contrast that with an arrest.
In an arrest, in the first place there's a booking procedure which they determined to be not carefully controlled proceedings, he may or probably will be handcuffed.
He will be under a clear threat of the police power as clear as you can be, he's is being handcuffed, take him down, fingerprint, get photographed and so forth.
Justice Thurgood Marshall: Well isn't that testimony here that one policeman held him by his belt?
Mr. Melvin Bessler: Yes Your Honor, the testimony of the defendant or petitioner himself said that he put his hand on his belt and guided him to the car.
That was disputed by each officer.
Each officer testified, paraphrasing “I didn't touch him, I didn't see or don't remember if the other officer did.”
They each testified that they didn't touch him, and as I say that's another part of the testimony that I believe the appellate division credited.
Now the unfortunate part here is there was a concession by the trial attorney in this case that he was in detention from the moment he came face to face with the police.
Therefore, the trial judge never made a finding on the question you asked Your Honor, he never made a finding because he felt he didn't have to.
He accepted the concession of detention and the reason quite clearly is at --
Justice Thurgood Marshall: In Morales how long can you hold him?
Mr. Melvin Bessler: A reasonably brief period of time, I guess pretty much like Brown, you have to judge it -- each case on it facts.
Justice Thurgood Marshall: Well, from 1 to 50 years.
Mr. Melvin Bessler: Well Your Honor in this case he made a -- he started to make -- he waived his rights and commenced making a statement within a very few minutes after he was questioned.
It's not clear from the record but --
Justice Thurgood Marshall: Well, according to you, he waived his rights when they stopped him, because he said he was willing to go down the police station.
That's when he started to waive his rights according to your case.
Mr. Melvin Bessler: Well, but I don't think at that time he was advised of his Fifth and Sixth --
Justice Thurgood Marshall: That's right.
Mr. Melvin Bessler: He was not advised --
Justice Thurgood Marshall: That's right.
Mr. Melvin Bessler: Then what we're talking about is the intermediate period, the 20, 30 or 40 minute trip downtown from the time he was first deprived of his immediate liberty.
Again I ask the court to remember we are suggesting --
Justice Thurgood Marshall: But why was he taken to the police station?
Mr. Melvin Bessler: Why?
Justice Thurgood Marshall: To be questioned, yes sir why?
Mr. Melvin Bessler: That question of course is not clear on the record.
I will -- I can speculate and show many reasons why it might be done.
Justice Thurgood Marshall: It was not in the record.
Mr. Melvin Bessler: It is not, I --
Justice Thurgood Marshall: (Inaudible) questioning right there.
Mr. Melvin Bessler: Well those officers, especially the two officers who were assigned to the case could not, because A, they weren't assigned to that detail, and B, knew very little about the case.
It was a notorious case and it's possible they knew quite a bit about it from Carter thought, hearsay and reading the newspapers the same way I might have without being involved or anyone else.
But they were not specifically charged with the investigation, they didn't know the names of these other people.
Justice Thurgood Marshall: Well couldn't the officer who did question him have come out to the house and questioned him?
Mr. Melvin Bessler: Yes he certainly could've but that would --
Justice Thurgood Marshall: Could he?
Mr. Melvin Bessler: Yes Your Honor he certainly could have.
Justice Thurgood Marshall: It'll be trouble for him.
Mr. Melvin Bessler: Yes it would because he didn't know any --
Justice Thurgood Marshall: But no trouble to bring the man.
Mr. Melvin Bessler: Well he didn't know where he was.
Justice Thurgood Marshall: No, I mean after they talked to him, they got him at the new house.
Mr. Melvin Bessler: That's correct.
Justice Thurgood Marshall: And they started to talk to him down there, could've they have then called the officer to come out and talk to him?
Mr. Melvin Bessler: Yes and that would've meant that they detained him in the street or in somebody's house for the same period of time while the officer is coming downtown.
Forgive me Your Honor, I can't see -- if that's -- if they can't bring him downtown --
Justice Thurgood Marshall: There's a lot of difference between being questioned in your room, in your living room and being questioned in the detention room in the middle of a place where you haven't got a single friend, isn't there?
Mr. Melvin Bessler: There certainly is Your Honor, however please consider the facts.
Justice Thurgood Marshall: That's why you take him down there, isn't it?
Mr. Melvin Bessler: Well, let us consider the facts here.
He was found at someone else's house not his own.
There were people in the other house, could the police reasonably barge into somebody's house and say, “We want to talk to you here” even if he consented.
Justice Thurgood Marshall: I didn't say that.
Mr. Melvin Bessler: I know you didn't Your Honor, but under the facts of this case that's what it amounts to.
Justice Thurgood Marshall: Well, on the facts of this case, couldn't they have called the man and had him come out there and sat in the police car?
Mr. Melvin Bessler: Yes they could've.
I would however respectfully Your Honor suggest that if there is something wrong, if there is something oppressive about being in a police station in an open room, there is just something even more oppressive about --
Justice Thurgood Marshall: An open room?
The question is an open room?
Mr. Melvin Bessler: What I mean is it's a large room with a desk and a table.
Justice Thurgood Marshall: It's an open room?
Mr. Melvin Bessler: I didn't mean unlocked.
I did not mean unlocked, I am comparing the room to a -- questioning him in a police car for example which if they'd ask me I would have said, it's outrageous, don't you dare do it.
Police car -- a police car is I think a more inherently coercive than rooms are, that's a personal opinion I obviously not binding on any one.
I think the real knob of the question is this, if the police want to investigate this matter and they have reasonable suspicion to believe that a certain individual knows something about the crime, what they want is an exchange of ideas.
They want communication, you can't -- if you stop people on a street, unfortunately in our society in certain parts of town all you'll going to get is an argument in a crowd.
Some people know that they -- whether they want to talk to the police or not, they can't do it on their own, if I can use the word turf, it's a put down, It's not cool to use the language.
They may be very willing to talk, willing in the purest sense somewhere else but not where they can be seen because they would lose face with their fellows and their compatriots, the people with whom they have to live, their peers so to speak.
As accepted matter, it is not conducive to an exchange of ideas now for example, contrast the questioning of Dunaway with the questioning of Cole.
Cole was just as much under suspicion when they questioned him, and because they were able to talk to him he was able to convince them that he knew nothing about it other than the hearsay that is -- he did not participate.
He was able to convince them that he was innocent, and they went to the next step.
Justice Thurgood Marshall: Cole was in jail?
Mr. Melvin Bessler: He was Your Honor.
Now as a separate matter, although no one has -- the question has not yet arisen, one obvious argument along those lines Your Honor might be why they didn't go to Elmira.
Incidentally, I disagree to his 90 miles, I think it was closer to a 120 miles.
The problem you have with going down to see Hubert Adams is twofold.
In the first place the information that they had gave them no direct evidence concerning Dunaway.
If they credit Cole's testimony, Coles statement, Cole heard from Hubert was the co-defended Ronald Ba Ba's brother, his older brother.
The information they got from him was that maybe a direct statement had been made to the brother but not direct statement had been made by Dunaway.
The would just have another layer of hearsay to contend with no matter what Hubert Adams told in Elmira, they still had to go talk to Dunaway and they would be in no better position than they were before they left.
Second of all, when you have someone who is -- who might arguably want to protect his own brother more so than he might want to protect Dunaway who is not his brother, anything that he said, anything that Adam said, is immediately suspect.
He might promise them anything either to get his brother off the hook or to get a better deal for himself or a better jail assignment or parole time or whatever.
It seems to me they made a practical decision, and of course Ba Ba was a juvenile and I don't think they knew where he was.
My recollection of the record is that they were looking for him too.
It was just coincidence that they found Dunaway first within a day or so.
It seems to me that the New York Court of Appeals tried to develop a middle ground, a balancing test between not investigating at all, that is the -- and taking a step further without compromising the rights of privacy that everybody has under the Fourth Amendment.
If this case were very, very recent it would --
Justice Byron R. White: Say you have reasonable suspicion may you bring a person in against his will for fingerprinting?
Mr. Melvin Bessler: Well, if you have reasonable suspicion I cannot answer you directly, I don't think so, but I would suggest that there you can get a warrant because there's provision for it.
There's no provision for a warrant.
I had --
Justice Byron R. White: How can you get a warrant on reasonable suspicion?
Mr. Melvin Bessler: I believe that that is considered less intrusive if you have -- if I recollect -- if I recall correctly in Davis that this Court condemned dragnet procedures.
But it seems to me either between the lines are in dicta, there was an argument that if they could show specifically that they were looking for this individual and for what reason then maybe there would be a method of legally by with judicial supervision bringing him down to fingerprint him.
Justice Potter Stewart: Because maybe then there would be probable cause?
Mr. Melvin Bessler: Well I think the question posited was that there was not probable cause.
Justice Byron R. White: Just reasonable suspicion.
Mr. Melvin Bessler: Just reasonable suspicion.
Justice Byron R. White: I take it your supreme -- your Court of Appeals thinks a person should be able to be, then you think that it should be able to be briefly detained for certain purposes on less than probable cause merely reasonable suspicion?
Mr. Melvin Bessler: That is correct.
Justice William H. Rehnquist: How about a lineup face -- or calling him in for a lineup based on reasonable suspicion but not on probable cause?
Mr. Melvin Bessler: Well a lineup presents an altogether different problem, because with a lineup you have a live witness, somebody who could identify him and if you have a live witness there are other ways that you can make the same identification.
So you either -- you can just bring him down and say, “That's' the guy” and would you have probable cause when you don't have it --
Justice William H. Rehnquist: Well but, you see, you can just bring him down but supposing he doesn't want to come?
Mr. Melvin Bessler: No, forgive me Your Honor what I meant was assuming that I am the suspect, the reasonably suspected person, bring the victim down at some (Inaudible) you say, “You see anybody you know” where you know that the defendant, myself in this case would.
And he can say, “That's the guy” now you have probable cause.
Justice William H. Rehnquist: Well but suppose the --
Justice William J. Brennan: But then don't you have -- its your problem?
You have the show of a problem.
Justice William H. Rehnquist: As Justice Stevens says suppose the victim is somewhat fugacious as the number of these -- rather the suspect is.He isn't going to show up regularly at any one place.
Mr. Melvin Bessler: Well I'm trying to ask you a specific question.
My own opinion is that the courts, the New York courts would have more trouble with -- for a lineup because you have a live witness than when you can't have a lineup because there's no live witness.
Justice William J. Brennan: But what if they could have any questions, fingerprinting and all?
Mr. Melvin Bessler: Well you may be correct.
I'm being a little cautious about speculating because one of the things they have thrown these cases out.
What I started to say was that there's been about a 10-year history of this precise rule in the State of New York and during that ten years there has been no excessive police behavior.
They haven't used it so to speak as a whole in the Fourth Amendment to swoop down and pick people up.
They have not made any dragnets, the Court of Appeals and the intermediate appellate courts, and we've cited some cases in our briefs, have carefully controlled and supervised.
There's been judicial supervision over this proceeding.
It is a very --
Justice William J. Brennan: Mr.Bessler, can I just ask this?
Mr. Melvin Bessler: Yes.
Justice William J. Brennan: Do you therefore interpret the rule as one that relates only to bringing a suspect in for questioning and does not extend to bringing him in for a lineup or for fingerprinting?
Or is the court just not passed on the lineup and fingerprinting type situation?
Mr. Melvin Bessler: That lineup cases have always found a way to get a court order, the ones I'm familiar with, and so the question is never been directly answered.
I don't know that they want to expand it any further because you have to remember that when you fingerprint, well I guess he could exculpate himself as well.
The real underlying theory behind Morales, as I understand it is to have confrontation between the suspect who may be witness as Cole was so that he himself can be confronted with the question of whether he want to talk or not.
And they have said, under the controlled conditions, a reasonably brief period where your Fourth Amendment rights are protected that is reasonable.
They have added another --
Justice Potter Stewart: That's a question about -- where your Fourth Amendment rights are protected, that's a whole issue.
Mr. Melvin Bessler: Well they have said, that under those circumstances that is reasonable and they have merely added what I consider another dimension to the definition of the word reasonable.
I guess the argument is in the case where you have no place else to go, where serious crime has been committed that the balancing that is required between the rights to privacy and the rights to solve these crimes, if it can be done with a minimum of interference should save an investigation because --
Justice William J. Brennan: Well in that -- then I take it under the Morales case, if you had the facts as in Terry, the police could not only have stopped the gentleman for a brief -- they could've taken him down to the station then?
Mr. Melvin Bessler: No I disagree Your Honor.
Justice William J. Brennan: Why then?
Mr. Melvin Bessler: Because no crime had been committed.
What did they suspect him of?
Secondly, it was not the type of crime that couldn't be solved another way.
Justice Thurgood Marshall: Crime had been committed in (Inaudible), carrying a weapon.
Mr. Melvin Bessler: No, but --I understand that Your Honor but that's not the type of crime they're talking about.
They're talking about a crime that has already been committed and almost in every case that's reached the appellate courts where this issue was involved it's a murder case where there was no live witness.
They have never allowed it in any other case, not the lower courts, not any court that I know of in the state.
They have limited it strictly to murder cases where there's the -- in another case they said, --
Justice Byron R. White: Where there's reasonable -- where there's some suspicion that the person they're detaining is involved in the crime?
Mr. Melvin Bessler: Either as a witness or possibly as a defendant, where they have reason to believe that he's involved and --
Justice Byron R. White: Even a witness then?
Mr. Melvin Bessler: Yes.
Justice Byron R. White: Even though they don't suspect him of being witness at all but just knowing something about it -- I mean suspect him of being the criminal --
Mr. Melvin Bessler: It's so close I don't know of a case that separate it, because usually if you know about you maybe an accomplice, although perhaps not chargeable with the full crime under investigation.
Certainly for example, Cole was in that category, they surely had the same reasonable suspicion against him that they had against Dunaway after talking to him.
He convinced them in this conversation he had with them that he had knew nothing about it and he pointed them to Adams and to Dunaway, well actually what he called them by his nickname.
Justice Byron R. White: But in this case, where -- I take it, we're on the -- we proceed on the assumption that there was not probable cause to believe that Dunaway was involved in the crime, or that he knew anything about it, probable cause, there was less than probable cause?
Justice Potter Stewart: That's right.
Mr. Melvin Bessler: That is correct, that's conceded.
Thank you Your Honors.
Rebuttal of Edward J. Nowak
Chief Justice Warren E. Burger: Do you have anything further Mr. Nowak?
Mr. Edward J. Nowak: Yes Mr.Chief Justice.
As a point of fact just for the record for whatever purpose it has the district attorney has indicated that the officers who were executing the arrest didn't know anything about why they were going out there that it be for investigative purposes or whatever.
I think clearly in the record that is to the contrary on page A 58, it does state Lieutenant Fantigrossi as being examined --
Chief Justice Warren E. Burger: Page 68?
Mr. Edward J. Nowak: A 58, page 58 of the appendix --
Chief Justice Warren E. Burger: Not where --
Mr. Edward J. Nowak: -- the second answer from the bottom, it states “They knew just as much about the case as I did.”
Fantigrossi's saying that his people who went out to execute this arrest for investigatory purposes knew just as much about the case as he did so.
For the record, I'd like to clarify that.
Two brief points and they are that the respondent has contested that New York applies this rule has not been excessive in the application of whatever rule they've applied.
In my brief, I've cited the case People versus Anderson in which I was counsel for the defendant before the Court of Appeals, where in they struck down Mr. Anderson's confession.
It was a murder case, they struck it down and he was detained more than 18 hours by the police until he finally confessed, and they noted in that case the detention was illegal.
Justice Byron R. White: And what's your view on these facts?
Suppose the police had been carefully briefed on Morales and that their police procedures were keyed to Morales and that was the law of the State of New York, never been overruled but then the case comes up here and the Morales is overturned.
What about procedures that have been carried on under Morales prior of the overturning?
Mr. Edward J. Nowak: I think your question is pointing out what if the police are acting in good faith when they're trying to execute at that --
Justice Byron R. White: Is there any difference between that situation and when they're acting under a statute that is presumably --
Mr. Edward J. Nowak: If we can presume, which I still would contest that Morales is the law then I would say that if that is a factor to consider in -- and possibly whether or not there's a sufficient attenuation of the case.
Justice Potter Stewart: Well how was it -- wasn't that theory is completely rejected in Almeida-Sanchez?
Mr. Edward J. Nowak: It -- well it was rejected in that case --
Justice Potter Stewart: Completely, there's a statute --
Mr. Edward J. Nowak: -- as well as I believe in --
Justice Potter Stewart: -- there was a statute that expressly allowed the search of that case.
Mr. Edward J. Nowak: That's correct, but beyond that good faith alone should not be an excuse to the Fourth Amendment, and I think this Court has repeatedly held that in many cases including Henry.
Justice Byron R. White: But in any event this particular kind of argument, I take it, it wasn't made in the state court?
Mr. Edward J. Nowak: I don't believe that it was, but even if it was, the -- as I am saying that -- what we're trying to prevent here, the deterrent effect of the exclusionary rule and my position is that we should not make our citizens prove that they are innocent to the police when they are only reasonably suspected of criminal activity.
And that's what the respondent here is trying to urge that they can go to Cole on reasonable suspicion.
They can question him and make him prove his innocence, but they don't have probable cause.
They can make our citizens prove because it's a murder case, it's serious.
They can make our citizens prove by detaining them and questioning they didn't do it, and that's reasonable.
And I submit that it is not reasonable that before we can compel our citizens and be interrogated which is the greatest form of deprivation of liberty in police headquarters, probable cause is required, and that should be clear.
And I think that the New York rule should be definitely overturned in this case.
Chief Justice Warren E. Burger: At the police station, I recall, he drew some diagrams of the place where the crime had been committed.
Mr. Edward J. Nowak: Minutes -- while he was confessing, they asked him if he would show them how what he means and he did, and the trial court as well said, that has to be suppressed.
It's the fruit of that illegal detention, while he's confessing he's drawing a diagram.
Chief Justice Warren E. Burger: But did I understand you in your argument in chief to concede that his statements and the drawing of the diagram of the room were voluntary?
Mr. Edward J. Nowak: They were voluntary for purposes of the Fifth Amendment, in that they were voluntary because he was read his rights and he waived them.
And for the purposes of the Fifth Amendment, yes, for purposes of Fourth Amendment freewill I say no.
Justice John Paul Stevens: Mr.Nowak, one small question.
You would take the same position, I take it, if they just asked him to get in the police car and he -- they made him get in the police car and they'd question him right there, that would be the same issue, wouldn't it?
Mr. Edward J. Nowak: I'm not sure that it would, I think --
Justice Potter Stewart: He'd in custody --
Mr. Edward J. Nowak: -- he would be seized, he would be seized.
In my position on behalf of the defendant would be yes he's seized.
They need probable cause.
Justice John Paul Stevens: Yes, I would take -- let me get the statement of course in the car, it would still be the same sequence.
Mr. Edward J. Nowak: As long as they are in the car, correct.
Justice John Paul Stevens: Right.
Chief Justice Warren E. Burger: Well back it up one stage more, suppose standing on the sidewalk they began this conversation and then gave him the Miranda warning and then he did there all the things that he did downtown, what would be your answer there?
Mr. Edward J. Nowak: A whole different situation.
Possibly that might be allowed depending in the nature of the seizure if it be reasonable if -- there're a number of factors that, I don't know if time would permit me to go into that I think bear on the exact question you've posited.
That is the nature of the detention it's on the street not in police headquarters, more beneficial, more reasonable to the police.
What was the length of it, it's brief, not long, not in the station house.
Are there any exigencies, which is a crucial element in determining what's reasonable under Terry?
The court specifically has said, the exigencies of the situation are what control.
In Terry, the police are trying to prohibit crime not solve it --
Chief Justice Warren E. Burger: I think I have it.
Mr. Edward J. Nowak: -- so that it might it might be -- thank you.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.