HAYES v. FLORIDA

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ORAL ARGUMENT OF MICHAEL E. RAIDEN, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We will hear arguments first this morning in Hayes against Florida.

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

Michael E. Raiden: Mr. Chief Justice, and may it please the Court:

In 1980 in the city of Punta Gorda, Florida, there were a series of burglaries and rapes.

The primary clue as to the identity of the perpetrator available to the investigating officers were fingerprints.

In the particular case for which the petitioner was convicted, these fingerprints were found on the bedroom doorknob of the victim.

The petitioner was one of a number of suspects which the police desired to obtain the petitioner's fingerprints in order to compare them with the latents found in the victim's home.

They did not have probable cause.

At least that was argued in the trial court, and the appellate court, the Florida appellate court agreed there was no probable cause.

There was no prior judicial authorization for obtaining the prints, and the court of appeals found and agreed with the petitioner's argument that there was no consent to accompanying the officers to give the prints.

However, the police officers went to the petitioner's house, made it very clear that he had no choice but to go with them--

Justice Thurgood Marshall: Excuse me.

Michael E. Raiden: --Yes, sir.

Justice Thurgood Marshall: It's agreed that there was no probable cause?

Michael E. Raiden: It was argued by the defense that the state--

Justice Thurgood Marshall: It wasn't agreed to.

Michael E. Raiden: --The court agreed with the petitioner.

Justice Thurgood Marshall: The court did.

Michael E. Raiden: Yes, sir, Your Honor.

They obtained the prints at the police station after seizing Mr. Hayes at his home and taking him to the station and obtaining the prints.

Upon comparing them with the prints found in the victim's home, they uncovered a match, and he was then arrested and charged.

He moved in the trial court of Charlotte County, Florida to suppress the fingerprint evidence.

His primary case authority was Davis v. Mississippi, along with a couple Florida cases that had followed Davis.

And the court denied the motion to suppress without stating any particular reason.

The state had argued probable cause and/or consent.

It went to the appellate court, and again, the state argued probable cause and/or consent.

The district court of appeal in Florida found that there was no probable cause.

They further found that there was no consent.

However, despite the holding in Davis v. Mississippi, they affirmed the trial court's decision not to suppress the prints, and in so doing they found justification in Terry v. Ohio.

Unidentified Justice: Mr. Raiden, there's some suggestion in either the briefs or somewhere in this record that since they could have taken the fingerprints on his front porch or in his living room, it made no difference that they were taken later in the police station.

Would you be here if they had taken the fingerprints in his living room?

Michael E. Raiden: I think that I would be, Your Honor, because--

Unidentified Justice: There's no difference, in your view.

Michael E. Raiden: --Well--

Unidentified Justice: There's no difference.

If they took it without his consent, as you argue, then it wouldn't make any difference whether they took it in his living room or at the police station.

Michael E. Raiden: --I'd maintain that it is still a search, it is still a seizure.

I recognize that one of the distinctions between Terry and say Dunaway or Foyer is the movement of the person; and there does appear to be that difference.

But they had already set up the fingerprinting process at the police station, and we do have an instance of movement in this case.

But in answer to your question, I... I find no constitutional difference in the fact that they possibly could have taken the prints at his house.

They still did not have probable cause to conduct this search and seizure, and they did not have judicial authorization, and they did not have consent.

Unidentified Justice: In other words, they would have had to get a warrant in order to take the first steps.

Michael E. Raiden: I find in Davis v. Mississippi that although the... what happened here, the district court said this is the question left open by Davis, in the opinion of, I believe, Mr. Justice Brennan, that the court could conceive of situations wherein fingerprints might be taken without necessarily having probable cause to do so.

However, further down in that opinion I believe Mr. Justice Brennan then said that it would not... it would not seem to admit of any exception to the warrant requirement.

In the wake of Davis, a number of states passed statutes wherein under very circumscribed circumstances, the police could go to a magistrate and get what... I called it a mini-warrant in the brief... but some type of judicial authorization to go and take prints.

And it's... there's a--

Justice Sandra Day O'connor: But aren't those statutes for the most part based on no more than reasonable suspicion?

Michael E. Raiden: --That's correct.

They do not require probable cause.

Justice Sandra Day O'connor: You think there's some problem with those statutes; is that your position?

Michael E. Raiden: I think arguably there is a problem.

I cited in the brief a Nebraska case where the Nebraska court reviewed all the various statutes that had been passed in the wake of Davis.

And they found that in light of more recent cases such as Dunaway v. New York and Royer v. Florida that whatever might have been suggested in the Davis opinion, that it could be done without probable cause it probably no longer is constitutionally valid, and that probable cause would be required any time you wanted to move someone, detain someone for that length of time.

Justice Sandra Day O'connor: Do you think that it is valid within the Terry stop rationale to take a photograph of someone on the street when you make a voluntary stop and use that in evidence?

Michael E. Raiden: Well--

Unidentified Justice: Does that violate any right of privacy, in your view?

Michael E. Raiden: --I'm not sure that I would say it did, Your Honor.

I--

Justice Sandra Day O'connor: Why is a fingerprint any different than your face?

It's just a different form of identification like your physiognomy generally.

Michael E. Raiden: --To take a fingerprint requires a little more of the participation of the individual than does submitting to a photograph.

For instance, a police officer conducting surveillance perhaps could be tailing someone on a public street and using a telephoto lens could take that person's picture.

Justice Sandra Day O'connor: Well, I'm talking about a Terry stop.

Within a Terry stop the Court has allowed a pat-down search of the person, which perhaps is more intrusive than taking a photograph or a fingerprint.

Michael E. Raiden: It's probably more intrusive than a photograph.

Justice Sandra Day O'connor: Why is it more intrusive... do you think it's more intrusive than taking a fingerprint?

Michael E. Raiden: I'm not sure that I would agree with that, because you have to place your hands on the person and actually hold the person to take a fingerprint.

The way--

Justice Sandra Day O'connor: And you have to place your hands on a person to do a pat-down search, I suppose.

Michael E. Raiden: --Yes.

Both of those involve actual physical contact with the person, whereas photography doesn't.

Incidentally, what I had urged vis-a-vis Terry in these cases is that Terry, involves a sort of search, it's not an evidentiary search.

They're not looking for evidence of a crime.

But it's designed instead for the protection of the officer, and the pat-down--

Justice Sandra Day O'connor: Have we also held that it's valid to ascertain identity?

Michael E. Raiden: --Yes, Your Honor.

That's--

Justice Sandra Day O'connor: And isn't the taking of fingerprint a form of identification inquiry?

Michael E. Raiden: --When they say in Terry that you may ask identity, I'm not sure the purpose of inquiring into identity is evidentiary in nature.

The fingerprint, while it is a means of identification, it is a means of identification evidence.

Justice William H. Rehnquist: Well, Place and Royer both certainly involve something more than protection of the officer.

They were looking for contraband in both cases.

So I think perhaps Terry on its facts is protection of the officer, but Terry has been held to support a stop where you're looking for evidence.

Michael E. Raiden: What I detect in Place and Royer, Mr. Justice Rehnquist, is an element of exigency, although I don't find that specific word in the opinions, because of the fact that these people come and go in airports.

And if you don't find out what you're looking for right now, it's gone forever.

But--

Justice Sandra Day O'connor: Well, the decision announced by this Court yesterday in Hensley permitted a Terry-type stop just for identification purposes based on a flyer.

Now, if fingerprinting on the scene were used for identification, how does that differ?

Michael E. Raiden: --As I understood the opinion that you announced yesterday, first of all, there had already been an arrest warrant for the individual; is that correct?

Justice Sandra Day O'connor: That is not correct.

Michael E. Raiden: That is not correct.

He was... the reason they wanted to find his identification is to find out if he was the person wanted.

I was mistaken, and I thought it involved the existence of an arrest warrant in another jurisdiction.

I apologize.

I must have misunderstood the opinion.

The question again was?

Justice Sandra Day O'connor: Well, why, if it's valid to make that kind of a stop to check on identification, would it be invalid to go ahead and print someone at the scene of the Terry-type stop?

Michael E. Raiden: I guess it might depend on why you wanted the prints, although I'm not comfortable with saying that now that I've just said it.

I sense a confusion as to the purpose of the printing.

Printing someone simply to find out who they are--

Justice Sandra Day O'connor: Of course, in this case the individual was taken to the station, and you don't have the typical Terry-type on the scene stop.

Let me ask you, if I may, suppose we agree with you that taking the individual to the station was not valid with the Terry stop rationale.

As I understand it, the victim made a later in court identification of the defendant in this case.

Now, even if you're correct that taking the defendant to the station was invalid, on retrial do you think that the state can get another set of prints and introduce fingerprint evidence again on retrial to convict this person?

Michael E. Raiden: --They've certainly urged, at least at this level, that reversal would be, as Mr. Justice Stewart said in Davis, a useless gesture.

I'm not prepared to agree or even to disagree other than to say I don't think that is to be resolved at this level.

Justice Sandra Day O'connor: Well, but I think that it's important to explore a bit.

Is there probable cause now to obtain a warrant to take this person's fingerprints?

Michael E. Raiden: I'm faced with a record where some things were not done the way I would like to have done them, and one thing that disturbs me about this record is there was no move to suppress the identification by the victim.

I'm not saying it was suppressible.

I don't think we can determine that on the face of our record.

Yes, she did identify--

Justice Sandra Day O'connor: Well, faced with this record, is there now probable cause to get the... Mr. Hayes' fingerprints?

Michael E. Raiden: --If a court... and I submit most properly it should be the trial court... found that Mrs. Hollander's in court identification was constitutionally permissible, then there probably is probable cause now, yes.

Justice Sandra Day O'connor: And if that's the case, what possible use is there in ordering a new trial just to consider the exact same evidence?

Michael E. Raiden: Because I'm not prepared to state at this point that her identification is constitutionally permissible.

It may not be.

I don't think we can determine that on the record we have, because no effort was made in the trial court.

Justice William H. Rehnquist: But why should you have a second shot at that issue, just because on a purely unrelated matter there may have been a violation of the Fourth Amendment in taking the fingerprint?

Michael E. Raiden: Ordinarily, Your Honor, there may not be.

I may not deserve a second shot.

But this... the inevitable discovery argument that the state makes is being made for the first time at this Court.

We did not have the benefit, either at the appellate level... I was not trial counsel... or at the trial level of the Nix v. Williams decision.

In the light of the fact that a very significant U.S. Supreme Court decision exists now that we were not aware of, I think perhaps we should be allowed to litigate that.

In other words--

Unidentified Justice: To mean to relitigate Nix against Williams?

Michael E. Raiden: --No, sir.

I'm sorry.

To relitigate the identification issue, the admissibility--

Unidentified Justice: Well, what possible... what possible flaw could there be in the identification--

Michael E. Raiden: --I don't--

Unidentified Justice: --if in open court she identified him as the attacker?

Michael E. Raiden: --Well, if that's the first time that she's ever seen him, that is arguably a suggestive procedure.

I'm not saying that Hayes would prevail on the identification issue.

It's just that I don't think we have a sufficient record, and that issue was never raised, so we don't have a judicial determination whether or not her identification was permissible.

If the court determined that it was, then Hayes--

Justice Sandra Day O'connor: Was no objection made to her in court identification?

Michael E. Raiden: --Here's what happened in that regard.

When you get to the cross examination by the trial counsel at about page 398 of the trial record, he asked this lady,

"What you're saying, then, is that nobody knew until this exact moment that you were going to come in here and identify this person; is that correct. "

and she said, "Yes".

Apparently, there were no efforts for her to make an in person identification of Hayes up until that moment.

Once had completed his cross examination, he made a motion to strike the testimony.

I don't think that helps in the determination we're talking about for two reasons.

Number one, under Florida rules of criminal procedure, any type of motion to suppress made after the trial begins is discretionary.

There's no absolute requirement that the judge hear it at all.

But number two, and perhaps more important, as I understand Mr. Bader's motion to strike, it was directed wholly toward credibility and not legal admissibility.

So I don't think we can infer from that that Judge Adams, who was the trial judge, ever made a specific finding that Mrs. Hollander's identification was legally valid and admissible.

Getting back to the question that was left open by Davis v. Mississippi, as I noted, after Davis there were a number of states that passed statutes permitting fingerprinting and similar identification-oriented investigations.

Some of them could be done at the police station, and I suppose, as Justice O'Connor has pointed out, it could be done, if you had all of your equipment and everything that was necessary, you probably could go to the person's house and do it.

Two distinctions I want to make there.

Number one, the fact remains in this case that the defendant was moved, and what I sense from some of the frustration that I detect in trying to resolve the Royer case was the end conclusion was that it doesn't necessarily matter that they could have detained Royer undue a sort of Terry stop.

Nevertheless, they didn't do it that way.

What they did to Royer was to move him, and that brings... that presents problems.

And if he's moved, he's detained for an unreasonable length of time, that it's too bad.

It could possibly have been done in a legal manner.

It wasn't done in a legal manner.

A point I wanted to make about these statutes is that regardless of the exact procedure specified, I in the brief quoted from the Colorado statute which is quite rigorous in its requirements.

When you have only a reasonable suspicion, you may still get an authorization to take prints or whatever.

Very rigorous requirements have to be followed.

But the point that I want to hammer home is it's always done with prior judicial authorization, and that was... that never came into play in this case.

Justice Thurgood Marshall: Well, my trouble is that the purpose of getting fingerprints is singular: it's to identify, right?

Michael E. Raiden: Well, fingerprints are identification-oriented evidence, but the purpose of getting these fingerprints is to find out--

Justice Thurgood Marshall: Is it for any other purpose than identification?

Of course it's not.

It's for identification.

Now, my problem is if the officer walks up to you and says can you identify yourself, is that okay?

Michael E. Raiden: --That's... under Terry, that's what they're permitted to do.

Justice Thurgood Marshall: And can you show me some identification; is that okay?

Michael E. Raiden: That is proper under Terry.

Justice Thurgood Marshall: And he says do you have any copy of your fingerprints?

Can he ask you that?

Michael E. Raiden: You mean a printed copy?

Justice Thurgood Marshall: A copy.

Michael E. Raiden: Well, you always carry a copy with you, if that's what you mean.

Justice Thurgood Marshall: No.

Do you at this time, at this moment have a copy of your fingerprints?

Michael E. Raiden: Well, I suppose he could ask him that.

I--

Justice Thurgood Marshall: And could he then say let me have it?

Well, let me give you the next question.

Maybe you can answer that one.

If he doesn't have it, can he then say may I take your fingerprints right now?

Michael E. Raiden: --Under Terry I question whether he could.

Justice Thurgood Marshall: And what in Terry gives you the right to question?

Michael E. Raiden: Because, if I can step back about two steps to a question you asked, yes, fingerprints are directed toward identification, but you may want to identify people for more than one reason.

When I went to take the Florida bar exam, I had to be fingerprinted so that they could make sure that I was the Michael Raiden who had signed up to take the bar exam, that I didn't send somebody to take it in my stead.

In Joe Hayes they don't want the fingerprints just so they can say yes, this is the right Hayes.

They want to identify Joe Hayes in this context so that they can convict him of a crime.

Justice Thurgood Marshall: Well, then he can't ask you for your driver's license, because if you're looking for Joe Doaks and your driver's license says Joe Doaks, and you show that driver's license, you're in trouble.

Michael E. Raiden: I'm not... I'm not sure I agree with that in every case, because it depends on why he wants to know if he's Joe Doaks.

Justice Thurgood Marshall: I just don't see the difference in... well, when he gets to the police station, can he identify himself there?

Michael E. Raiden: Well--

Justice Thurgood Marshall: What good does the warrant do?

Michael E. Raiden: --When you're looking for evidence of a crime, which in this particular case the fingerprints are, in order to conduct a search and a seizure for that evidence, you must have prior judicial authorization unless you have a probable cause of arrest.

You could conduct a search incident to an arrest without previously getting a warrant.

You don't have that here.

Justice Thurgood Marshall: Well, why isn't your protest that he was arrested without probable cause?

Michael E. Raiden: Excuse me?

Justice Thurgood Marshall: Why don't you say he was arrested without probable cause when he was carried to the station?

Michael E. Raiden: Well, I have argued that under the phraseology of Dunaway that it is tantamount to an arrest, but there was no probable cause.

As a matter of fact, I believe I did argue that.

When he--

Justice Thurgood Marshall: But you haven't argued it here.

That's what I'm worried about.

You haven't abandoned it, have you?

Michael E. Raiden: --No, sir.

I'm not abandoning that.

I'm stressing that that is one of the differences between Terry and a case like Dunaway is not only do you briefly detain the person on the street, which under Terry is a seizure--

Unidentified Justice: But on a Terry stop, could the policeman, if he found a gun, take the gun away from the man?

Michael E. Raiden: --Under a Terry stop, that's part of what Terry's designed to permit.

Unidentified Justice: And that might well... that might well be evidence, first, of carrying a concealed weapon without a license or, second, if they took some ballistic tests, it might tie him to a murder.

So it's very, very important evidence, isn't it?

Michael E. Raiden: It's true.

But Terry... the evidentiary value of the firearm is incidental to the primary purpose for permitting that type of pat-down.

The primary purpose is to protect the officer.

If he reasonably believes that person is armed, he may then conduct that limited pat-down to protect himself.

Justice John Paul Stevens: But he can also detain the person for a brief period at least to question him, ask him some questions.

Michael E. Raiden: I believe the purpose of those questions... this is what I've struggled with.

The purpose of the questions is to dispel the officer's suspicion.

Now, what does that mean exactly I'm not sure, but--

Justice John Paul Stevens: Well, one of the questions that Justice Marshall asked you, whether it could be asked, was who are you and do you have any identification, and you agree that those questions may be asked.

But what if they... what if the person says sorry, it's none of your business, and a person says... he's asked do you have a driver's license, and he says yes, I have a driver's license, but you can't see it?

Now, could the officer then search him for his driver's license?

I take it you say he could not.

Michael E. Raiden: --I don't know that he could unless... under Florida law we have what's called the loitering and prowling statute.

Loitering and prowling is an individual crime with its individual elements.

And if the defendant's conduct grows to the level of loitering and prowling under Florida law, a Florida officer could probably then arrest him for that crime.

Justice John Paul Stevens: Well, yeah, but he could... but--

Michael E. Raiden: If it doesn't rise to that level, if the person simply refuses to cooperate with the officer, I'm not sure he doesn't have a right to refuse.

Justice John Paul Stevens: --And if the officer says do you have... do you have a driver's license, I want to look at your fingerprints, and the fellow says well, I have a driver's license, but you... it's none of your business about looking, and the officer then searches him, not for a gun or anything else but for a driver's license.

Michael E. Raiden: I'm not sure the officer can do that.

Justice John Paul Stevens: Well, I think I would say you certainly have argued that he could not do that.

If you argue that he could not take his fingerprints right there on the spot, surely you would argue he could not search him for his driver's license.

Michael E. Raiden: I don't believe he could search him.

I think he can ask for and ask who you are, and part of the reason he can ask who he is may be for future reference.

If the person looks suspicious, the officer, under Terry, has a right to detain him if there's some reason to suspect there's criminal activity afoot.

And he can ask him who he is, and I would assume would make a report of that perhaps.

But unless he can connect this person to a specific crime, he can't go much beyond that.

Now, perhaps later on the officer might be patrolling that same area, and maybe he would find a broken window in a business.

Well, then he's got this person's name for reference.

He may be able to go back and--

Justice John Paul Stevens: May I get back to this case for a moment?

In this case there are arguably two different seizures of the person: one, taking him to the station, and secondly, taking his fingerprints.

Unidentified Justice: They're at least analytically separate.

Justice John Paul Stevens: In your view, which is the greater invasion, the more serious intrusion on the person that's under arrest?

Michael E. Raiden: --I would say the fingerprinting... I'm... I'd say the transportation to the station is more serious.

And that seems to be the thread that underlies Dunaway and Royer and those cases.

I am eating into my rebuttal time, and if there are no further questions, I'd like to reserve the last three or four minutes.

Chief Justice Warren E. Burger: Very well.

Justice Sandra Day O'connor: I have just one I'd like to ask, if I may.

Does the record tell us how long Mr. Hayes was kept at the station and how long it took to get him there?

Michael E. Raiden: I've looked and looked, and I can't find it.

Justice Sandra Day O'connor: Thank you.

Chief Justice Warren E. Burger: Mr. Munsey.

ORAL ARGUMENT OF WILLIAM I. MUNSEY, JR., ESQ., ON BEHALF OF THE RESPONDENT

William I. Munsey Jr: May it please the Court, and Mr. Chief Justice:

Justice O'Connor, in answer to your question, the record does not reflect either the amount of time of the detention or how far it took to transport him.

If this Court is interested, I have spoken with Detective Gandy, and I would be happy to share that information, but it is not in the record.

Unidentified Justice: Well, wasn't... they took his prints at the station, didn't they?

William I. Munsey Jr: Yes, sir.

Unidentified Justice: And didn't they match?

William I. Munsey Jr: Yes, they did.

Unidentified Justice: Well, did--

William I. Munsey Jr: We had--

Unidentified Justice: --Did they release him then?

William I. Munsey Jr: --No.

They arrested him.

Unidentified Justice: Well, what's that I said.

So how long was he detained at the station?

He was arrested.

William I. Munsey Jr: Well--

Unidentified Justice: He was detained for quite a while.

[Laughter]

William I. Munsey Jr: --He was--

Unidentified Justice: Well, if he wasn't arrested--

William I. Munsey Jr: --Up until... up until he was formally arrested, he had been detained for 30 minutes, and it was--

Unidentified Justice: --That's the answer to the question, isn't it?

William I. Munsey Jr: --Yes.

Unidentified Justice: Well, if he wasn't legally arrested, arrested as a matter of law when they took him away from his home, he certainly was arrested as soon as they took the fingerprints.

William I. Munsey Jr: As soon as Officer Cardell of the Sheriff's Department made that match, then he was what I would call formally arrested.

The other answer to your question was the distance between Mr. Hayes' residence and the Punta Gorda police station, whether it's not in the record, was one mile.

I think in this case and what has bothered me and both Mr. Raiden with the case has been the dry record of the motion to suppress hearing.

And you read that and the appendix, and you keep wondering why the police went to Mr. Hayes' home, what was their reason in going there, why did they think that he was the rapist.

Everything is very disjointed in that.

I have a finding of the Second District court of appeal that I stand here in front of you today that there was no probable cause.

Well, let's look at the reasonable suspicion.

And I would ask the Court and invite the Court to look at that reasonable suspicion in concert with the trial testimony joined with the testimony at the motion to suppress hearing.

Now, what did the police have?

We have the Punta Gorda police investigating three rapes, and we have the rape of Velora Davis, a woman aged 82.

You can get that at the sentencing hearing at R-741 where her case was null prossed.

And the second rape of Helen Smith, aged 60.

The case against Mr. Hayes where Mrs. Smith was a victim was also null prossed at Record 741.

Police had interviewed these victims, and they had gotten a composite photograph... not a photograph but a composite representation of what he looked like, a composite portrait, and they had gotten a composite from Julienne Hollander and another composite from... it was either Ms. Davis or Ms. Smith.

The record is not clear on that in the trial.

And this composite had been published in the local newspaper.

Now, what is alluded to in the motion to suppress hearing?

You have one question, and that's at the Joint Appendix page 11 by Mr. Bader where he's cross examining Detective Shoup, and he said,

"Did any informant tell you they knew of their personal knowledge that he had perpetrated any of the alleged crimes? "

And Detective Shoup answers, "Not myself".

Remember, there are two investigators, two detectives, Shoup and Gandy.

At the trial, and that's Record--

Justice Thurgood Marshall: Mr. Munsey--

William I. Munsey Jr: --Excuse me.

Justice Thurgood Marshall: --May I back up just a moment?

William I. Munsey Jr: Yes, sir--

Justice Thurgood Marshall: You said that in some prior case he was arrested and null prossed.

William I. Munsey Jr: --No.

He was not arrested on Smith and Davis.

They had charges against him for Davis and Smith after he was arrested on Hollander.

That's the case before the Court now.

There's three rapes.

Justice Thurgood Marshall: Well, I'm talking about the one that he wasn't tried on, the one he was null prossed on.

William I. Munsey Jr: Yes, sir.

Justice Thurgood Marshall: Was he arrested in that one?

William I. Munsey Jr: I would presume that he was for the state to go ahead and null prosse--

Justice Thurgood Marshall: Well, how in the world is it that they didn't have his fingerprints?

William I. Munsey Jr: --The rape of Velora Davis was April 27th, of Helen Smith was May 18th, and of Julienne Hollander was May 13th.

The first arrest and seizure or the arrest and seizure of Mr. Hayes was on June 23rd when they... when they finally seized his prints.

Now, they are trying--

Justice Thurgood Marshall: I just can't how you can null prosse a case when a man is not arrested.

Unidentified Justice: Were these second charges brought after his fingerprinting in the case now before us?

William I. Munsey Jr: --That is what I presume from the record.

This is the only mention that we have of Ms. Davis and Ms. Smith is at sentencing.

And this is one reason that I... and Judge Adams reads into the record as to why he is retaining one jurisdiction over one third of the sentencing is these prior rapes.

And at that point in time, because he did get such an lengthy sentence, the state attorney null prosses the cases against Mr. Hayes with Ms. Davis and Ms. Smith, and Judge Adams says on the record, he says he doesn't want these ladies to go through the humiliating, degrading experience that Ms. Hollander had to go through in her trial.

When you look at the trial record and Detective Shoup is testifying, Mr. Bader, defense counsel, says to him, asks him, Mr. Shoup, did any> ["]... and I'm at Record 528...

"did anyone whisper in your ear, did anyone tell you Joe Hayes might be the one? "

"No, sir, not to me. "

"Well, did you get a whisper through Mr. Gandy? "

Answer: "Yes, I did".

Question: Mr. Gandy> ["]?

"Yes, sir".

And at that point in time Detective Shoup goes into the fact that he didn't know the name of Detective Gandy's confidential informant, and regretfully, when Detective Gandy takes the stand at trial, Mr. Bader does not ask Mr.... Detective Gandy about his confidential informant.

Detective Gandy is not asked at the motion to suppress hearing or at trial who the C.I. was, was he reliable--

Justice Sandra Day O'connor: Mr. Munsey, may I ask what the point of all this discussion of the evidence is?

William I. Munsey Jr: --Well--

Justice Sandra Day O'connor: What... what relevance does that have to the point that you want to make?

William I. Munsey Jr: --Okay.

When they'd run the photograph in the newspaper, the composite, the C.I. comes forward.

The C.I. tells Detective Gandy.

Justice Sandra Day O'connor: The C.I. being a confidential informant?

William I. Munsey Jr: Confidential informant.

And says it's Joe Hayes.

At that point in time through the record Detective Gandy goes forward and on a pretext goes up to Mr. Hayes' home, knocks on the door, sees those herringbone shoes, and does a pretext interview, and then walks away.

At that time he finds out that Joe Hayes works at the Home Care Center.

He goes to the Home Care Center with a subpoena ducas tecum from the State Attorney's Office... now, this is from the trial record... and gets his personnel file.

He interviews the co-workers.

He gets... and if you go back to the motion to suppress hearing, you will see that they talked--

Justice Sandra Day O'connor: Well, what is the point of this?

What is the legal relevance of all of this discussion of the--

William I. Munsey Jr: --Okay.

That they had reasonable suspicion.

And I argued in the Second District, Justice O'Connor, that they had probable cause to do the arrest.

Justice Sandra Day O'connor: --Well, you're trying to argue here that the court below was wrong in saying there was no probable cause, is that it?

William I. Munsey Jr: I... yes, Your Honor.

And I'm saying--

Justice Sandra Day O'connor: And you want us to reweigh the evidence and disagree with the court below and find there's probable cause?

Is that what you're arguing?

William I. Munsey Jr: --Well, what I... I don't want you to substitute the judgment of the Second District, but I am saying that the Second District applied an incorrect constitutional standard to probable cause, as this Court has announced in--

--Illinois v. Gates.

This is an alternate constitutional argument, Your Honor.

Unidentified Justice: --Well, then you're saying that this Court is not bound by the state court's determination on this issue because it's a federal issue?

William I. Munsey Jr: Yes, Your Honor.

Unidentified Justice: And that you argue here that there was probable cause for the arrest.

William I. Munsey Jr: I do, Your Honor.

I do.

Unidentified Justice: Well, you are going to get to whether... to the question of whether you can take fingerprints on reasonable suspicion.

William I. Munsey Jr: Yes.

Yes, Your Honor.

Unidentified Justice: Soon.

William I. Munsey Jr: Yes.

Right now.

Your Honor, the other alternate constitutional ground is inevitable discovery.

Before I forget, on Record 741, other than the in court testimony of Julienne Hollander, we have Judge Adams as he passes sentence stating that Joe Hayes is subject to an outstanding warrant by law enforcement agencies in other jurisdictions in connection with similar crimes... the West German Federal Republic.

That's at Record 751.

I would proffer to the Court that the State of Florida does have those fingerprints.

So there are two prongs, two approaches that Florida can take and have those fingerprints if free trial is necessary.

Justice John Paul Stevens: Mr.... General Munsey, may I just ask this one question--

William I. Munsey Jr: Sure--

Justice John Paul Stevens: --on your probable cause argument.

I am correct, am I not, in understanding that the evidence on which you rely to establish probable cause was not all presented at the hearing on the motion to suppress.

William I. Munsey Jr: --Correct, Your Honor.

Justice John Paul Stevens: It partly relies on the trial transcript.

William I. Munsey Jr: Correct.

Correct.

We have a detention, investigative detentions must be temporary and last no longer than necessary to effect the purpose of the stop.

The purpose of this stop was to take Mr. Hayes' fingerprints.

The State of Florida did everything reasonable.

We had Officer Cardell of the Charlotte County Sheriff's Office on standby at the police department ready to roll those prints.

Now, where the Government has been in trouble was the... the case of United States v. Place, and that's where luggage was seized and 90 minutes elapsed.

And it was alluded to that perhaps the Government should have had some dogs ready to sniff.

Well, that's not a problem in this case.

We have someone competent, willing, ready and able to compare those fingerprints, and they were compared.

The purpose of his detention was to take his fingerprints.

The fingerprints were taken.

We tried to be... we didn't intrude upon his rights any more than was reasonably necessary.

I think it makes no--

Justice Sandra Day O'connor: Is there any reason why prints couldn't be taken at the scene or at a suspect's home?

William I. Munsey Jr: --Only the economics of the Punta Gorda police department.

I don't believe they have mobile fingerprint kits.

Justice Sandra Day O'connor: Well, what's involved... just an ink pad and a piece of paper?

William I. Munsey Jr: That might be all that is involved, Justice O'Connor.

When I've been fingerprinted for the bar examination, I remember it was a--

Justice Sandra Day O'connor: Didn't you just roll your finger on an ink pad and put it on a piece of paper?

William I. Munsey Jr: --It was a big... it was a stable thing, but I imagine that is all that... correct.

You're correct.

Justice John Paul Stevens: May I ask you the same question I asked your adversary?

Which do you regard as the greater intrusion on the citizen's freedom, you might say... taking him to the station or taking his fingerprints?

William I. Munsey Jr: The greater intrusion would be the transportation.

The fingerprints... the taking of the fingerprints you aren't asking questions, you're not probing into their life.

There is a bit of a chill in transporting someone.

Although, on balance, in defending the... the... the detention and transporting of Mr. Hayes, on the other side of that, I don't know how I would feel if on my front porch of my home if a policeman is there, and my neighbors are looking, and I'm being fingerprinted on my front porch, or whether it is not a bit more acceptable to go with plainclothes policemen.

Justice John Paul Stevens: But maybe you could invite the officer into the living room.

William I. Munsey Jr: And if... if they weren't invited, we do have problems.

Unidentified Justice: Right.

Well, in view of your answer to Justice Stevens, doesn't this come down, then, to a seizure case rather than a fingerprinting case?

William I. Munsey Jr: Well, it's both a seizure and a fingerprint case, Your Honor.

Chief Justice Warren E. Burger: Your argument here is that this would have been inevitably discovered in any event under the Nix case, and therefore we're spinning our wheels up here, is that right?

William I. Munsey Jr: Yes, Your Honor.

Under inevitable discovery and with Nix v. Williams... and Mr. Raiden had said that I raise inevitable discovery for the first time here.

I find myself in a similar position that New York v. Quarles was in.

I believe New York raised inevitable discovery the first time here.

But remember, New York was petitioner, and Florida is respondent; and I believe I'm allowed to defend the judgment on any grounds that the record might well permit.

Justice Sandra Day O'connor: Well, quite apart from inevitable discovery, is it arguable that no new trial is required simply to present the same evidence all over again?

William I. Munsey Jr: I don't believe that a retrial is necessary, Your Honor.

I believe that this Court could well conclude on this record that there is probable cause to go ahead and re-arrest Mr. Hayes on the basis of Julienne Hollander's testimony at trial, and why do a futile effort.

Justice William H. Rehnquist: Well, it could also conclude, could it not, that for reasons stated by the Florida district court of appeal, this fingerprinting was proper under a Terry standard.

William I. Munsey Jr: That's true, Your Honor.

That's true.

Justice John Paul Stevens: I'm a little puzzled about the argument.

I frankly hadn't thought it all the way through, but about the victim's testimony at the trial.

Isn't all that the product of the fingerprinting?

I mean if there had been no fingerprinting, how do we know what would have happened thereafter?

William I. Munsey Jr: Well, her identification certainly antedates the fingerprinting, the arrest.

Her identification stems back from the time that she was raped in her home and rolled over on her elbow and took a look at Joe Hayes.

Justice John Paul Stevens: But... but you're relying on... on the pre... the pre-fingerprinting identification--

William I. Munsey Jr: Yes, sir.

Justice John Paul Stevens: --rather than what she said at trial?

William I. Munsey Jr: Well, that's where her identification came from.

That's the source of her... of her identification was the rape itself.

Unidentified Justice: But how--

Justice Sandra Day O'connor: --Wasn't her in court identification based on her view of the defendant at the scene of the rape?

William I. Munsey Jr: Yes.

Justice John Paul Stevens: But how do we know he would have even gotten to court if there hadn't been the fingerprinting?

Did they have enough to arrest him without the fingerprinting and bring him into court?

She didn't see him any place except in the courtroom, did she?

William I. Munsey Jr: That is the only place that she viewed him.

She did... there was a photographic display shown to her after the arrest, but there was no... there was no hint or suggestion of a taint to that.

If there are no further questions, thank you.

Michael E. Raiden: I hope I have time to make--

Chief Justice Warren E. Burger: Anything further?

Michael E. Raiden: --I have just one or two points in response.

Chief Justice Warren E. Burger: Very well.

Michael E. Raiden: I hope I have time.

Chief Justice Warren E. Burger: You have four minutes remaining.

ORAL ARGUMENT OF MICHAEL E. RAIDEN, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Michael E. Raiden: Thank you, Mr. Chief Justice.

Justice O'Connor, I think your question is a good one, and I wonder if it shouldn't remain unanswered at this point... Does the victim's I.D. have an independent source?

I don't think we can determine that.

Justice Marshall, the way I understand what happened in this case, back to one of your questions, he was charged with three rapes.

The investigation was concurrent.

He was informed against jointly, and I think the same evidence goes to all three.

So that he was never convicted independently.

He was never arrested three times.

I think he was arrested once for all three.

That's--

Justice Thurgood Marshall: Was the null prossing after this case?

Michael E. Raiden: --After this case was tried and convicted.

Justice Thurgood Marshall: Well, what in the world that's got to do with this case?

Michael E. Raiden: Excuse me?

Justice Thurgood Marshall: What in the world does that have to do with this case?

Michael E. Raiden: The--

Unidentified Justice: The argument that the Government made was that they had probable cause to think it was him because he had been null processed.

Michael E. Raiden: --That's not my understanding of what happened.

Unidentified Justice: I understood the Government's argument to be that these other asserted attacks were known to the police at the time they went to his house, and that that furnished an additional basis for a probable cause arrest at that time.

Justice Thurgood Marshall: But that's not what he said.

Michael E. Raiden: I don't think that's what he said either.

They were investigating--

Chief Justice Warren E. Burger: Well, that's the way I understood his argument.

Otherwise, there would have been no point in talking about these null prossed cases.

Michael E. Raiden: --I'm not sure there is any point in talking about them.

They were being investigated all at the same time, and they didn't proceed with them.

Justice John Paul Stevens: Well, I thought the point was that three different people had versions of what he looked like, and together they were able to arrange a composite drawing that gave them their probable cause.

Michael E. Raiden: That leads to my last point.

This Court said in Beck v. Ohio that a trial judge cannot make an adequate probable cause determination if they're not apprised of what the officers are going on.

Now, they said at one point in the suppression hearing that, as I understood them to say, the picture didn't look particularly like Joe Hayes, for one.

For the second part, they didn't bring those pictures in so that the judge could look at them and decide.

And I don't see how the pictures help the State's argument when the trial judge never got to look at them.

In other words, conceivably they may have had probable cause, but if they did... and I don't think they did... but if they did, they didn't prove it.

The last point I wanted to make regarded inevitable discovery.

My position would be that is a trial court determination, and I base that on Nix.

The case first came to this Court in Brewer v. Williams.

The Court reversed on the basis of the invalid confession and hinted that perhaps inevitable discovery might get the body back into evidence.

At that time there was a second suppression hearing.

Isn't it Iowa, isn't that the state?

Then... then argued inevitable discovery at the trial, and so when it came back to this Court, we had a record whereupon this Court could make a determination if the inevitable discovery rule did apply in those facts.

And such is not the case with Hayes v. Florida.

Chief Justice Warren E. Burger: But if your friend is right on his theory that there was probable cause at the time they went to the man's home, then the inevitable discovery claim evaporates from the case, is that not right?

Michael E. Raiden: Yes, Your Honor.

That's correct.

Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

We'll hear arguments next in Ball against the United States.