TAYLOR v. ALABAMA

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ORAL ARGUMENT OF ROBERT M. BENO, ESQ. ON BEHALF OF PETITIONER

Chief Justice Burger: We will hear arguments next in Taylor v. Alabama.

Mr. Beno, you may proceed whenever you're ready.

Mr. Beno: Mr. Chief Justice and may it please this honorable Court:

This case comes out of the State of Alabama in reference to an arrest made on January 4, 1979.

Now, the background, which I think is very important in all criminal cases, especially when the Fourth Amendment is involved, of the facts and circumstances applicable to the record generally turn... make the case turn one way or the other.

Now, there was a robbery, without question, on the 2nd day of December, 1978.

Subsequent to that time, in the middle days of December a Charles Martin was arrested in reference to a completely different and separate rape and robbery, and he was in the county... or in the city jail in Montgomery, Alabama.

Unidentified Justice: Do you acknowledge that whoever committed the robbery at the supermarket that you have just described left some fingerprints there?

Mr. Beno: There's no argument to that effect, Your Honor.

In fact, one issue here is whether or not... there are several... how many people were involved in the robbery.

Initially--

Unidentified Justice: Well, today we're only really concerned about one of them, aren't we.

Mr. Beno: --The fingerprints and the confession, right.

And at the trial we didn't argue and did not move to suppress the fingerprints taken from the hotdogs and the package of sugar.

That's not at issue here.

The point here today is whether or not, first of all, there was an illegal arrest.

That's a critical issue, because if there's no illegal arrest there's no need to be in front of the Court today.

We have a situation where Mr. Martin said to the police officer, Mr. Mobley... I think if you'll refer to the record at page 7 of the record, his statement to the court was that he had heard... that's not in the appendix, that's in the record... he had heard.

At which time I moved or I objected, and there was a discussion in front of the court and in front of the officer, and during that discussion the judge came to the conclusion and stated that, well, I think that this, what he heard from someone else, if it cannot be substantiated, certainly cannot be grounds to base a credibility upon which an arrest can follow.

Well, if you'll notice, on page 15... no, on page 13 of the record, after this discussion is over we come back and we ask Mr. Mobley another question, and now he says:

"Well, I don't know where he got it."

"I don't know where he got it."

This certainly... the element of credibility is involved here.

Once in front of the court and the court has said that, well, just hearing this is not sufficient, it appears that his testimony changes.

I think that's critical, because credibility is very important when this court decides this case.

At any rate--

Unidentified Justice: May I interrupt you for just a second?

The question presented that you framed in your brief is whether or not a confession taken from Petitioner following a warrantless arrest based on less than probable cause.

Mr. Beno: --That's correct.

Unidentified Justice: And so you... for purposes of our consideration of the case, do we assume there was less than probable cause?

Mr. Beno: That's correct.

That's what I'm getting ready to show you.

Unidentified Justice: Yes.

Mr. Beno: Now, Mr. Martin, who was as I said an alleged... or a suspect in a separate and completely different rape and robbery, was then questioned at the police station by Mr. Mobley, all right.

Now, he said, and it's on the record, that he had heard such and such.

The court then said: Well, hearsay is fine if it's credible and can be substantiated or give some credibility in reference to the statement.

Well, the question was asked to Mr. Mobley, was there anything that you can base your credibility or you can give credit... credibility to the informant?

Well, Your Honor, all he told me was that he had heard.

He did not tell me who he heard it from or how he got this knowledge.

I would suggest, based on that and quite frankly until this brief by Petitioner... I mean, by Respondent... it has never been argued that there was probable cause.

In fact, at the oral argument in front of the Supreme Court of Alabama he readily admitted that there was no probable cause.

In fact, one of the judges at that time indicated that, well, I was kind of thinking about reversing this case, but if you admit that there's no probable cause I'm going to have a little bit more difficulty.

Well, now he suggests, and he tries to gloss over this failure to produce probable cause by saying that, well, we did have probable cause perhaps.

He says that this Mr. Martin was a suspect in the robbery at Moseley's Grocery Store at that time.

Well, the record indicates that the only reason he was a suspect is because he was arrested on some other robberies.

And another time in the record he says, well, he was a suspect to me.

He never indicates any reason on which to base his suspicion that Mr. Martin was even a suspect, other than the fact that he was in jail on another crime.

I don't believe that can be sufficient evidence on which to give credibility.

Chief Justice Burger: What was the information that Martin gave?

Mr. Beno: Simply that he knew that Omar Taylor was involved in the robbery of Moseley's Grocery Store.

That is it.

Nothing further to indicate any amount of credibility.

Dunaway falls very close to this case in reference to the fact that there was no evidence on which to substantiate the testimony or the statement made by the alleged individual incarcerated.

One thing I want to point out.

Now, a lot of the Justices on their dissents--

Unidentified Justice: Tell me, why are you arguing... are you arguing that there was no probable cause?

Mr. Beno: --Right.

Unidentified Justice: And why are you doing that?

Mr. Beno: Well, if there's probable cause--

Unidentified Justice: Well, I know, but is that in issue in this case?

Mr. Beno: --It wasn't until Respondent's brief came in.

Unidentified Justice: Well, was it an issue in the Alabama Supreme Court?

Mr. Beno: No.

Unidentified Justice: Do you think that that is open to the Respondent to make that claim here?

Mr. Beno: Well, I know that he is going to argue that.

I'll move along.

Assuming that there is no probable cause, then we come to the point in fact of the arrest.

Unidentified Justice: Yes.

Mr. Beno: All right.

Unidentified Justice: What are you relying on for the proposition that there's no probable cause, Aguilar and Spinelli?

Mr. Beno: Aguilar and Spinelli.

There's also an Alabama case which I argued originally, Berry.

Unidentified Justice: Well, presumably that's not open to you if that's a state law.

Mr. Beno: I understand.

But under Aguilar and under the petition filed by the Defendant, he states clearly that Aguilar and Spinelli are involved here.

And on brief by the amicus curiae raised this also.

Unidentified Justice: Well, but Aguilar and Spinelli were both warrant cases, weren't they?

There was no warrant here.

Mr. Beno: They spell out the necessary basis for the credibility of the informant.

Unidentified Justice: To be supplied to a neutral magistrate.

Mr. Beno: That's correct.

Unidentified Justice: But here you're not talking about a neutral--

Mr. Beno: You don't even have that here.

I understand that.

I agree with you on that, Your Honor.

Now, Omar Taylor was arrested following this information, without a warrant, which makes it different from Dunaway in that in Dunaway the Justices, I believe Mr. Burger, Chief Justice Burger, indicated that, well, I'm not so sure that this wasn't a consent to follow the police officer to the station.

We certainly don't have that issue in the present case.

We have no issue... there's no question but that he was arrested at the time he was taken into custody by the police.

In fact, he was handcuffed.

Now we come to the question under Dunaway and under Brown.

There are three temporal... I mean, there are three circumstances which the court would look to.

Certainly, the temporal proximity is involved, and Mr. Justice Stevens in Dunaway indicated that that is an ambiguous term in that certainly the longer an individual is incarcerated, considering the facts and circumstances of his incarceration can not... will not necessarily dilute the detention, but will only increase the confusion on the part of the incarcerated individual.

I think it's clear here that the Defendant was... or the Petitioner was questioned at least three times, perhaps four; that he was fingerprinted prior to being placed in a lineup.

Now, it's interesting in discussing the fingerprinting that you ruled in Davis v. Mississippi that under narrowly defined circumstances perhaps the limits of probable cause can be removed to some extent.

Unidentified Justice: --Was he fingerprinted again after that occasion?

Mr. Beno: After the arrest.

Unidentified Justice: Was he fingerprinted a second time?

Mr. Beno: He was not... he was indeed... yes, he was indeed fingerprinted.

At the trial he was fingerprinted.

Unidentified Justice: Well, those were the only fingerprints that were introduced.

Mr. Beno: That's correct.

Unidentified Justice: Well, why were the fingerprints taken immediately after arrest excluded?

They were excluded?

Mr. Beno: They were excluded.

Unidentified Justice: Why?

Mr. Beno: Under Mississippi versus Davis.

And under Mississippi--

Unidentified Justice: And the trial court then ruled that, A, there was no probable cause for arrest--

Mr. Beno: --That's correct.

Unidentified Justice: --That the fingerprints were excludable as the fruits of an illegal arrest--

Mr. Beno: That's correct.

Unidentified Justice: --And then the Alabama Supreme Court holds that the taint has been removed.

Mr. Beno: Well, quite frankly--

Unidentified Justice: Is that right?

Mr. Beno: --That's what they ruled.

Unidentified Justice: Yes, that's what... but the trial court... and did the Alabama Supreme Court disagree with the holding that there was no probable cause?

Mr. Beno: No, they indicate that.

They indicated that the taint had been removed.

Actually, what the Alabama--

Unidentified Justice: They didn't disagree with the ruling that the first set of fingerprints were fruit of an illegal arrest?

Mr. Beno: --They did not.

Unidentified Justice: Yes.

Mr. Beno: It's interesting that the Alabama Supreme Court basically said in its opinion that they were rather discouraged by the exclusionary rule, and that they were just, quite frankly, not going to follow it.

That is basically what they said, because they did not delineate the reasons upon which they reversed the case.

They did not delineate the factors on which they overturned the case.

Going a little bit further now, it's interesting in the fact that in Davis you all indicated that perhaps there will be a case in which the fingerprints on less than probable cause can be permitted.

But this case is not the one, because the individual was fingerprinted twice, he was questioned on at least... at least questioned during that period of time.

In other words, they did not arrest him or pick him up specifically to get the fingerprints and then match them up.

I cited in my brief M.B. v. State of New Jersey, a New Jersey case, In Re the Fingerprinting of M.B., which seemed to fall within the confines of what you all consider reasonable under Davis.

In other words, they went to a magistrate and indicated that we have the possibility of determining the murderer of an eighth grade child, because we found a ring which has fingerprint on it.

We believe that the culprit in this situation may match this and is probably a member of that eighth grade class.

And the court in that case went ahead and said, we will allow you, we will allow you to bring in the members of the eighth grade class and fingerprint them.

But in order to protect their rights under the Fourth Amendment, should you not find that those fingerprints match they must be destroyed, so that they will not be on record, so that they will not interfere with the normal constitutional rights of the individual.

And I think that's very important in this case.

I think it's important that the police officers did not stop with the fingerprinting.

And there's no indication in the record that they picked him up specifically to fingerprint him.

There's no indication in the record.

Unidentified Justice: Counsel, how is the admissibility of the fingerprints that were taken before the arrest before the Court?

It seems to me that as I recall that evidence was suppressed.

Mr. Beno: Yes, ma'am.

Unidentified Justice: And the State didn't cross-appeal--

Mr. Beno: No, they did not.

Unidentified Justice: --on that.

And I don't see how that issue is even before us.

Mr. Beno: Well, I'll explain something to you, that it's so important.

In Dunaway you all talk about the flagrancy, purpose and flagrancy of the police conduct, all right.

You discuss the fact that when the police conduct is excessively flagrant the intervening circumstances perhaps should be more credible.

A stronger intervening circumstance, the more flagrant the police conduct, the more you have to look at the... I mean, of the flagrant procedures used by the police.

Now, assuming again that there was no probable cause whatsoever and that this... well, I submit that this was strictly for the purposes of investigation.

You've got to look at what they did.

They picked this young man up--

Unidentified Justice: You want us to look at it as one of the Dunaway cases?

Mr. Beno: --I believe it falls within the Dunaway line.

I believe it falls in the Dunaway line.

Fingerprints fall under the Davis line--

Unidentified Justice: They never used those fingerprints.

Mr. Beno: --Excuse me?

Unidentified Justice: They never used those first set of fingerprints.

Mr. Beno: Well, it's my contention that it was one and the same.

It came out, the issue is the same.

Unidentified Justice: Well, the court took the fingerprints in the courtroom.

Is there anything that you can think of when you've got the defendant in the courtroom that forbids taking his fingerprints or his picture or getting a sample of his handwriting?

Mr. Beno: Let's look at this, then.

What are we... how did he get in the court?

How did he get in the court?

If this Court can say... let's look at, what evidence did they have prior to the arrest?

Nothing.

What evidence did they have when they took the fingerprints?

None.

From that point, what did they use to get the confession?

They used the fingerprints.

The record is replete, is full of evidence that he was confronted with the fingerprints over and over again.

Unidentified Justice: Did the trial court... I am confused about what happened where in this case.

Did the trial court suppress anything?

Mr. Beno: They suppressed the fingerprints.

Unidentified Justice: The first fingerprints.

Mr. Beno: The first fingerprints.

Unidentified Justice: And then the Court of Appeals decided that the confession--

Mr. Beno: Under Dunaway, yes, was not could not come within the purview of the--

Unidentified Justice: --As to all these things that happened--

Mr. Beno: --Yes, sir.

Unidentified Justice: --have we got to go to search the record to find them, or did you file something other than this brief?

Mr. Beno: There is a--

Unidentified Justice: Have you filed any brief in addition to this?

Mr. Beno: --There is another brief that was filed, a reply brief.

Unidentified Justice: I don't have it.

I just don't have it.

Mr. Beno: It was filed.

Unidentified Justice: Well, there's one here, but I didn't have it.

I don't have it, either.

It was filed one day late.

Mr. Beno: Well, and we filed a motion.

Let me explain what happened on that.

We filed that motion--

Unidentified Justice: It was filed one day late.

Mr. Beno: --We filed that motion on time--

Unidentified Justice: My point is, your original brief doesn't give us anything.

You've got six cases cited.

The whole thing from beginning to end is nine pages.

Mr. Beno: --That's correct.

Unidentified Justice: And that's all you think of this case.

Mr. Beno: If you will look at the appendix, you will notice that the appendix indicates the facts involved in the case.

All I did was cite the case and the law as it applied to the facts, Your Honor.

Unidentified Justice: And doesn't the rule say that you give the statement of facts in the brief?

Or did you not look at the rules?

Mr. Beno: I did in fact look at the rules.

At any rate, after the fingerprints were taken the girlfriend was taken to the... the individual was taken into a... for a lineup, prepared for a lineup.

The lineup was taken subsequent to the fingerprints and prior to any judicial finding in this case.

Now, under Johnson v. Louisiana, as cited by the Respondent in this case, he tries to indicate under the holding of the Supreme Court of Alabama they seem to indicate that the... I would like to go back to Justice Marshall for a second.

The indication to me was, from the Clerk's office, was that there could be full and complete going... I could go to the record in my argument throughout.

And then they indicated to me they wanted the brief to be as short as possible.

At any rate, there's no question in this case but that there were an illegal arrest, three cases of, or four cases of questioning, illegal fingerprints were taken; he was confronted by his girlfriend at the time just prior to the confession; that at that time the police officers came in and discussed the case in front of the girlfriend and Petitioner, and indicated to him at that time and to her that he was facing 30 years in the penitentiary, that he had nothing left to hide, that they had the fingerprints and that they would stand up in any court.

It is my position that in reference to the same, that the flagrancy of the police conduct, which appears to be under Dunaway what you all were looking at, mainly because of temporal proximity can be ambiguous.

But the flagrancy in this case is that the police had two weeks between the time they got this information and the time they went and got and picked up the Defendant to make a determination of whether or not there was probable cause.

There are no exigent circumstances in this case, Your Honor.

There are no exigent circumstances in which to determine that they can go out and pick up this individual.

They had plenty of time to go before a magistrate and ask the question of whether or not there was probable cause.

Unidentified Justice: Well, but if a magistrate issued a warrant for his arrest, I presume you would have argued that it was subject to attack.

Mr. Beno: I agree, I agree.

Unidentified Justice: So getting a warrant wouldn't have improved their case.

Mr. Beno: No, it would not have, not in my opinion.

Unidentified Justice: So why do you talk about exigent circumstances and having two weeks?

Mr. Beno: Well, I'm just trying to point out that... and maybe I should hold this for response... that the Petitioner... or the Respondent in this case is going to argue that there may have been probable cause.

Unidentified Justice: Well, maybe there was.

Mr. Beno: Maybe there was.

I would submit there certainly was not.

I'll reserve the rest of this time for response.

Chief Justice Burger: Mr. Allison?

ORAL ARGUMENT OF THOMAS R. ALLISON, ESQ., ON BEHALF OF RESPONDENT

Mr. Allison: Mr. Chief Justice and may it please the Court:

Prior to the trial in Omar Taylor's case, a pretrial motion to suppress the confession and to declare the arrest illegal was filed.

A full-blown hearing was held and much testimony taken.

At the end of this hearing the trial judge denied this motion and found the confession admissible on the--

Unidentified Justice: But the court found that the fingerprints were inadmissible and had to be suppressed, right?

Mr. Allison: --The fingerprint issue arose in the trial, and the very first time that the fingerprint issue came up, on page 20 of the record, the trial judge says: Now, then you come along and you say that you object to the fingerprints because of the illegal arrest and because of the language of Davis v. Mississippi.

And the content in which the fingerprints were objected to was the admissibility of the fingerprint comparison in the trial of the case.

This is the first time that the fingerprint issue was argued.

Unidentified Justice: Well, weren't they kept out, presumably, because the arrested was illegal?

Mr. Allison: The reason that the trial judge suppressed those fingerprints and ordered him re-fingerprinted was that he considered, apparently, the arrest based on less than probable cause.

Unidentified Justice: Right.

And didn't you... didn't the State virtually concede that at the time, that there was no probable cause?

Mr. Allison: Reading the arguments of the district attorney, he attempts to establish probable cause, but concedes that the arrest was based on less than probable cause.

Unidentified Justice: Yes, and so everybody assumed at the trial court level there was no probable cause and the confession came in under the Dunaway concept, isn't that basically right?

Mr. Allison: Your Honor, that's correct.

That is exactly what the trial judge said.

There are circumstances under Dunaway that would make this confession admissible.

Unidentified Justice: Intervening circumstances.

Mr. Allison: Yes, sir.

Unidentified Justice: But it was not a fruit of an illegal arrest.

Mr. Allison: No, sir.

There were certain attenuation factors that I will compare shortly.

Unidentified Justice: Now, the state didn't appeal that finding of no probable cause.

Mr. Allison: On argument before the Court of Criminal Appeals the State argued that there was probable cause, and the Court of Criminal Appeals rejected that argument.

Unidentified Justice: And you never appealed the trial court's exclusionary order.

Mr. Allison: No, Your Honor, there was no appeal on the exclusionary order.

Unidentified Justice: So presumably that issue is at rest.

So do we not have to assume, then, that the arrest was illegal?

Mr. Allison: Was based on less than probable cause.

Unidentified Justice: Yes.

Well, but you also have with you the favorable ruling on the pretrial suppression motion, which refused to exclude the confession, did you not?

Mr. Allison: Yes, sir, that's true.

Unidentified Justice: And that was appealed as a part of the Defendant's appeal to the Court of Appeals?

Mr. Allison: To the Alabama appellate court.

Unidentified Justice: Yes.

Mr. Allison: Yes, sir.

Unidentified Justice: That wasn't based on the notion that there was probable cause, was it?

Mr. Allison: The one issue that the Court of Criminal Appeals considered was, is a voluntarily given confession admissible in an instance where there is less than probable cause.

And what the Alabama appellate court did was to look at Dunaway and Brown and to weigh the facts, and the Alabama Court of Criminal Appeals found nothing to distinguish Omar Taylor's case from Brown and Dunaway.

Then on appeal the Alabama Supreme Court reviewed the decision of the Alabama Court of Criminal Appeals.

The Alabama Supreme Court found that the causal connection between the illegal risk and the confession had been sufficiently broken, and that any taint of an illegal arrest had been sufficiently attenuated by the three factors as set forth in Brown and Dunaway.

And what I would first like to do is to look at these three factors as set forth in Brown and Dunaway, and to see the correctness of the decision of the Alabama Supreme Court.

The three factors:

First of all, the first factor is the temporal proximity of the arrest and the confession.

In both Brown and Dunaway, the Defendant was arrested and had confessed in less than two hours.

In Taylor's case there was a period of six hours.

And in order to show the importance of the six-hour period, we have to look at the circumstances that occurred.

We know that there are four things that occurred during this period of time, and we know the approximate time, or the record shows the approximate time in three of these.

When Omar Taylor was arrested at 3:00 p.m. in the afternoon and taken directly to the police station, the first thing that happened, he was processed.

He was fingerprinted, he was photographed, and by his own statement they talked to him for 15 minutes.

We know then that he was taken directly to a lineup.

According to Omar Taylor's estimate, this lineup lasted one hour.

Then, ten minutes later, Detective Wilson read him his Miranda rights and confronted him with the fingerprint comparison.

While he was being placed in the lineup, the police officers had taken the latent print from the crime scene, they had compared them with these roll prints, and he was confronted with these prints and he declined to make any statement.

He was then placed in his cell.

Then Omar Taylor says, that afternoon I talked to my girlfriend and I confessed.

But it was not the girl... but it was not that afternoon.

If you look at the record, his confession came at 9:00 p.m. that night.

So if you add up this time between 3:00 p.m. and 9:00 p.m. that night, some six hours, the activities that occurred immediately after his arrest consumed some two and a half hours, approximately, or three hours at the most.

But this leaves a three-hour period, and this is important, I think, from the length of time, because during this period he sat in the solitude of his cell.

He had an opportunity to compose his thoughts and to ensure that the confession was a product of his free will.

The second factor to be considered, intervening circumstances.

In Brown and Dunaway there were none.

But I think there are several circumstances that are significant and should be considered.

First of all, I use the period of solitude in his cell as an example to show what happened to him during this six-hour period.

But I think as an intervening circumstance we would have to consider this period of solitude in his cell.

His Miranda rights were read to him or given to him on three occasions, and the final time was just minutes before he confessed.

Omar Taylor was a twelfth grade student, and just before making his confession the police also read him his Miranda rights.

He gave him a copy, Omar Taylor read it and signed the waiver of rights form.

Another intervening circumstance is the visit between Omar Taylor's girlfriend and neighbor.

There is a difference in the versions of exactly what happened when you look at the record.

Omar Taylor gives a different version from that of the police officer.

According to the police officer, at 8:50 p.m. that night he took Omar Taylor out of his cell, read him his Miranda rights, and had been talking to him for approximately ten minutes.

At that time Omar Taylor's girlfriend and neighbor arrived.

She wanted to talk to Omar Taylor.

Omar Taylor wanted to talk to her.

So the police officer allowed them to have a private conversation in the detective's office.

After this private conversation, approximately ten minutes, Omar Taylor confessed.

But I think that as an intervening circumstance you would have to consider the conversation, in which Omar Taylor was free to discuss anything in the privacy there with a person with whom he was very closely associated.

And the last intervening circumstance which is given weight by the Alabama Supreme Court... and this is prior to the confession... an arrest warrant was obtained based on an affidavit that the officers made.

This affidavit included information about the fingerprint information.

The arrest warrant was issued prior to the confession.

During the exclusion... during the motion to exclude the confession, this evidence pertaining to the issuance of the search warrant was placed before the trial judge.

During this hearing the information was before him that these fingerprints were used as a basis for the warrant.

There was no specific objection on this point.

The first time that the fingerprint issue arose was in the trial itself, when the district attorney attempted to introduce into evidence a comparison of the fingerprints from the roll prints and the fingerprints from the crime scene, at which time the trial court sustained the objection and ordered the Defendant re-fingerprinted.

Unidentified Justice: General Allison, I'm curious about one thing.

Didn't I detect something in the record about a request on his part during this period for an attorney?

Mr. Allison: There is a conflict of testimony on this point.

The two police officers that testified both stated, no, he did not ask for an attorney.

Detective Hicks very clearly testified on two occasions, no, he never requested an attorney.

So what you have, I think that when the trial judge considered the totality of the circumstances, he was considering two things when he considered this first motion.

He was considering also a Fifth Amendment question, the voluntariness of that confession.

And in considering all the facts and circumstances surrounding it, I think that the trial judge had to consider this conflict of testimony between the officer and then the Defendant.

The Defendant said a number of things.

He said, I signed the statement of rights form after I confessed.

But then when he was shown the date on it, he changed the story and said, no, I believe I signed the statement of rights form before I confessed.

But I would say that there you have a direct conflict of testimony that had to be resolved by the trial court.

The third factor that I would like to look at is the purpose and the flagrancy of the official misconduct of the officers.

I want to compare the conduct of the officers in this case with that in Davis v. Mississippi, Dunaway and Brown.

In Davis, the police officers had a latent fingerprint from a crime scene.

The only description the rape victim could give was that it was a young Negro youth.

That was all.

The police go out in a dragnet situation and arrest some 24 people, in a complete absence of probable cause.

In Dunaway, the officers maintained that the defendant was simply detained.

They did not arrest him, they maintained.

They merely took him to the police station for interrogation.

The information in Dunaway came from a person being held in jail.

It passed through several hands.

We find a completely different situation when you look at the fact situation in Taylor.

In Brown, Brown was nothing more than an associate of a murder victim.

He was not even a real suspect.

And yet the officers go to his apartment at 7:30 at night, they search his apartment without a warrant.

They jump out and arrest him, and they arrest him in such a manner that would cause fright and shock and confusion.

They take him to the police station.

He has confessed in less than two hours.

In Taylor's case, the investigation had focused on one individual, Omar Taylor.

The officers go to Omar Taylor and they say, Omar Taylor, you are under arrest for the robbery of Moseley's Grocery, and they take him to the police station.

I want to look at the probable cause that the officers had.

Unidentified Justice: Of course there are some parallels.

In both Dunaway and this case, it was a man in jail who made the suggestion.

Mr. Allison: Yes, sir.

Unidentified Justice: And in this case Martin himself was ultimately convicted, was he not, or implicated at least, in the robbery?

Mr. Allison: When Omar Taylor gave his statement, he named Charles Martin as his accomplice.

I think that we can show that in this case there is much more probable cause and there's much that would distinguish this case from Dunaway.

Some 20 days after the robbery of Moseley's Grocery... and this robbery of Moseley's Grocery had been one of a series of armed robberies in the same neighborhood.

20 days after the robbery, Charles Martin was arrested in a robbery in the same neighborhood.

During the week following the arrest of Charles Martin, Detective Mobley began to talk to Martin.

He knew Martin as one of the three suspects in the Moseley's Grocery robbery.

Charles Martin and Detective Mobley began to have conversations over a period of a whole week.

On numerous occasions Mobley talked to Martin.

He impressed upon him the importance of telling the truth if he wanted the information to be known to the judge.

He emphasizes the adverse consequences that any false information would have.

Detective Mobley said, that over a period of a week, I developed a rapport with this man.

He convinced me that he was telling the truth.

Now, there is a difference in the testimony, because on one or two occasions Mobley says, Charles Martin told me he heard.

And I'm sure that over a period of talking to this man for at least a week, I'm sure that on occasion he said, I heard, but on other occasions he said, I know.

And the district attorney attempted to clarify this point.

On page 15 of the record, which is not in the joint appendix... part of page 15 is... but on page 15, on redirect examination the district attorney attempts to clarify this point.

He asks the direct question:

"Now, when Martin gave you this information, was it in the sense that Omar Taylor did the robbery or X told me that Omar Taylor did the robbery?"

And his answer was:

"It was in the sense that Omar Taylor was involved."

He repeatedly told him that he knew that he was involved.

On the following page he states:

"He didn't say anything else other than the fact that he knew that Omar Taylor was involved in the robbery."

I think that an experienced police officer, knowing that Charles Martin was a suspect in the very same robbery, I think that an experienced police officer would know that this man could not tell him how he knew without confessing, without saying, I was there standing beside him and robbing Mr. Moseley.

The officer knew that he could not tell all the circumstances or the basis of his information, but I think the fact that this man was known as one of the three suspects gave weight to this officer's information and his belief--

Unidentified Justice: What did Martin get as a result of this?

Mr. Allison: --The record does not show what the police officer told him.

He said, if you give me reliable information I will see that any help you have given us will be presented to the trial judge for whatever benefit he can give you.

He could not promise him anything, but he could only tell him that the judge would be made aware of it.

Unidentified Justice: Well, what did he end up with?

Mr. Allison: I have no idea, Your Honor.

The record shows nothing about Charles Martin and his sentence in his case.

I think that--

Unidentified Justice: Mr. Allison, I take it from your argument you're not going to press upon us the necessity to apply some good faith exception to the exclusionary rule or any modification of it?

Mr. Allison: --What I would ask Your Honor is that... I think I'm going to look a little bit further in the probable cause area, but I think what you will find is that if the officers were technically short of probable cause, that they acted in good faith; that whether they acted in good faith could not be a subjective matter with the officers.

You would have to look at it in an objective manner.

But if there is an objective, reasonable basis for that belief, then you find this evidence admissible under a good faith exception to the exclusionary rule as set forth in the Fifth Circuit case of United States v. Williams.

Unidentified Justice: Was there any finding by the courts below specifically of the good faith of the officers?

Mr. Allison: Your Honor, the language of the Alabama Supreme Court when they discussed the exclusionary rule, it is very difficult to determine exactly what they had in mind It is a detailed history and discussion of the exclusionary rule.

But Your Honor, I cannot answer that question.

Your interpretation of the second half of the opinion is open to interpretation, I would think, Your Honor.

Unidentified Justice: But you can't point to any specific finding in the courts below on the good faith?

Mr. Allison: Your Honor, there was none.

But to conclude in the area of probable cause, I don't think that in the suppression hearing the extent of probable cause was ever brought... or was fully developed.

The officers had... also had a description, not like Davis v. Mississippi, but of a colored male, five foot six inches, 150 pounds, 20 to 25 years old.

The record doesn't even show--

Unidentified Justice: Did they know what the Petitioner looked like before they went out and picked him up?

Mr. Allison: --Your Honor, that's exactly what I was going to say.

The record is completely silent.

This was never developed.

Unidentified Justice: So that we can't assume that they relied on the description, then?

The record suggested to me they relied entirely on Officer Mobley's conversation with this man, with Martin.

Mr. Allison: I think that the... I think that that is an accurate interpretation.

Unidentified Justice: In fact, he didn't arrest him himself, if I understand.

He got two other officers to go out and pick him up, didn't he?

Mr. Allison: He relayed the information to a detective, I believe it was Detective Alford, I believe, who actually made the arrest.

Unidentified Justice: In that relay did he tell him what the Respondent looked like... what the Petitioner looked like?

Mr. Allison: The record is silent.

It doesn't go into that.

And if you'd like me to, I would make my remarks about the exclusionary rule.

If you don't want to hear those, then--

Unidentified Justice: They're covered quite fully in your brief, I think, aren't they?

Mr. Allison: --With the exception of one thing, if I might add, that in the past this Court has used a balancing process in making a determination as to whether or not to apply the exclusionary rule.

In a number of cases this Court has stated exactly what factors were balanced.

In U.S. v. Calandra this Court weighed the potential injury to the functions of a grand jury on the one hand and the effect the suppression of evidence would have as to a deterrence of police misconduct on the other, and this Court found that illegally seized evidence could be admitted as an exception to the exclusionary rule.

In Waldor v. United States, this Court weighed the need to prevent perjury and the public interest in determining the truth on the one hand, and the interest safeguarded by the exclusionary rule on the other, and this Court that illegally seized evidence could be used for impeachment purposes.

In Michigan v. Tucker, this Court weighed society's interest in the effective prosecution of criminals on the one hand and the need to provide an effective sanction to a constitutional right on the other.

Unidentified Justice: The Court's familiar thoroughly with Waldor, because we reaffirmed that in Harris against New York many years later.

Mr. Allison: Your Honor, what I would ask the Court to do if they found this evidence otherwise inadmissible is to weigh society's interest in the prevention of crime on the one hand and the benefits derived in applying the exclusionary rule in an objective good faith situation on the other, and consider... I'll name these very briefly... the high cost to society in the release of criminals.

You can see the agony of the Court of Criminal Appeals when they say, we are loath to reverse the conviction of a man so obviously guilty.

Guilt drips from the fingers of both hands, and yet we are lighted by... our path is lighted by Dunaway.

Consider the suppression of the truth in a criminal trial.

Here what could be more reliable than fingerprints?

Consider judicial integrity.

Consider the reaction of the public in what they see, where robbers, murderers, rapists are released on what the public calls a technicality.

And consider that judicial integrity is not injured to the same extent when there is a good faith mistake on the part of officers.

And consider proportionality.

Consider the difference between the flagrant violation on the one hand and the good faith action of the police officers on the other.

Chief Justice Burger: Do you have anything further, Mr. Beno?

REBUTTAL ARGUMENT OF ROBERT M. BENO, ESQ. ON BEHALF OF PETITIONER

Mr. Beno: Mr. Chief Justice and may it please the Court:

Respondent's statement to you in reference to the facts in this case certainly finds no support in the record.

He indicates that Charles Martin was a suspect in the crime.

There is no factual evidence from the record to indicate on what basis he finds that conclusion.

He tries to change the events which occurred at the police station and give you some indication that the continuous questioning and police investigation on this crime took place in a very short period of time.

I think it's clear from the record that the Defendant was arrested at 3:00 o'clock, that from that point until he got to the police station, although there is a conflict in the testimony, that he was at least questioned by the police officer in the car; that he was questioned prior to his fingerprints being taken; that he was placed in a lineup prior to a warrant being issued; that he was again questioned.

And it's clear on the record that a Detective Wilson... and this was without rebuttal by the State... that a Detective Wilson threatened to shove his head through the wall if he did confess.

Unidentified Justice: Well, you don't... I didn't think you were making any claim that the confession was coerced; are you?

You're just saying it's a product of an illegal arrest.

Mr. Beno: I understand, but I think it's clear that--

Unidentified Justice: Well, you've never raised the made a coerced confession claim in this case.

Mr. Beno: --But I'm pointing out, we're now looking at the flagrancy of the police conduct.

Now, that's certainly a consideration of Dunaway.

Unidentified Justice: That's quite different from coercion.

Mr. Beno: Yes, that's correct.

Unidentified Justice: That's what he's suggesting.

Mr. Beno: But we're talking about the flagrancy of the police conduct and the purposefulness from which the arrest was made.

It seemed almost impossible in my mind that Respondent can argue a good faith action on the part of the police.

Unidentified Justice: Well, you wouldn't... if there were probable cause to arrest and the arrest had been legal, you don't suggest that any of this evidence would then be inadmissible, do you?

If there had been probable cause?

Mr. Beno: If there's no illegal arrest, we have no grounds for being up here.

Unidentified Justice: Yes, yes.

Exactly, exactly.

So if the police officers mistakenly thought there was probable cause but there wasn't, they just proceeded as though there was.

Mr. Beno: That's correct.

That's how they proceeded in this case.

Unidentified Justice: What makes you think that's so outrageous?

I mean, they may be wrong.

Mr. Beno: I understand.

Unidentified Justice: And under the law it may be that the evidence is inadmissible.

What makes their conduct so outrageous?

Mr. Beno: They had this information in front of them for a period of over a week, Your Honor, over a week to make a determination as to whether or not there was probable cause to make this arrest.

Unidentified Justice: I suppose this wasn't the only case on the police blotter, was it?

Mr. Beno: I understand that, Your Honor.

But certainly you're not going to... it's not going to be contended that because of the number of cases on the police blotter that a police group can go out, even when there is time, in fact time to go to a magistrate or at least contact a district attorney or something of that nature to determine whether or not, based on the bald statement of an alleged rapist and robber, that you can go out and make an arrest.

I don't think this Court is going to come to that conclusion.

If this was a case where after the information came in to him he had immediately gone out based on that and in good faith made an arrest, that might have been a situation where it was simply a mistake.

This is not a case where there is simply a mistake.

This is a case where the police obviously knew that they did not have probable cause, that they had time to make a determination... have a determination made as to whether or not there was probable cause, that the only purpose that the Defendant was picked up in this case was in order to find out whether or not they could, through their flagrant and purposeful measures, whether or not they could bring in certain evidence during the detentionary period on which to hold the Defendant.

That is certainly the only fact before you in this case.

If this Court is of the opinion that the police can purposefully and when knowing they have no probable cause go out and pick up an individual in order to determine through investigation of that defendant's condition at the police station whether or not they have a case against the defendant, then we're in a situation where the exclusionary rule no longer serves a deterrent purpose.

Certainly the medication served by the exclusionary rule is not a pleasant one.

But the interest of society in protecting them from abusive conduct and extraordinary conduct on the part of the police must be balanced against the need to protect society.

And in this case there is no evidence that the officers in this case acted in any other way than flagrantly.

And the time period involved certainly does not take this case out of Dunaway.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.