NEW YORK v. HARRIS

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Argument of Peter D. Coddington

Chief Justice Rehnquist: We'll hear argument next in Number 88-1000, New York v. Bernard Harris.

Mr. Coddington.

Mr. Coddington: Mr. Chief Justice, and may it please the Court:

Your Honor, I know you're all aware of the facts in this case so I'm not going to dwell on them.

Rather, we believe the New York Court of Appeals erred on four fronts in this case.

And, if I may, I'd like to concentrate on our first two arguments primarily while I'm at this podium.

We believe that the New York Court of Appeals misunderstood Brown and its progeny by holding that a precinct confession, totally voluntary, given outside of a man's house, should be suppressed because the police arrested him in his home without a warrant.

Now, I believe they misapplied Brown.

Brown merely holds that Mirandas will not attenuate a Fourth Amendment violation in every case.

The opinion says so, that Miranda warnings by themselves will not always attenuate.

However, Brown also did not adopt any "but for" standard... but for a Fourth Amendment violation a confession so be suppressed.

Brown, Taylor and Dunaway, the three cases on which the court of appeals relied, hold merely that when the confession is the product of prolonged involuntary detention without probable cause, then a confession should be suppressed.

In those cases, the confession comes as a result of the Fourth Amendment violation.

That is, holding a man without probable cause in violation of his Fourth Amendment rights.

Where, however, in a case like this where there is ample probable cause, I submit that the vice that led to the Brown, Dunaway and Taylor holdings is absent.

Once this man was taken outside of his house, the detention was completely lawful for Forth Amendment purposes.

Therefore, the perfectly voluntary confession given later at a public place, the police precinct, I submit should have been admissible.

Now--

Unknown Speaker: Without regard to any other factors?

What I mean is do you agree with what I think is the Solicitor General's position in his brief that the vice of... going inside the house in this case to arrest the person was that you might have seen things inside the house that could be used as evidence, not the mission to... to arrest him?

Mr. Coddington: --Yes, sir.

Unknown Speaker: And, therefore, so long as you're not using any evidence that you saw inside the house to prove your case, the arrest itself is okay?

Mr. Coddington: That's... that's precisely... that's my second point, Chief Justice Rehnquist.

We believe also that the--

Unknown Speaker: Well, but just... but just on the first point, to follow-up to the Chief Justice's question.

If you assume that the rule is you must exclude the statement that's given in the house, then do you make the same argument here?

Or is it just a factual inquiry as to whether or not there's... the taint's been attenuated?

Mr. Coddington: --Well, I believe we get into attenuation.

With respect to the Brown holding, my position is that if there is probable cause, Miranda warnings by themselves should attenuate and there's no need to go through the three-fold factors.

Okay?

But I also agree that the Payton rule... I think there should be a bright-line rule here that Payton applies to evidence that is seized or perhaps observed in the home, and that evidence that is taken outside the home should not be suppressed as a violation of Payton.

If that answers Your Honor's question.

Unknown Speaker: So your first point is that probable cause plus Miranda warnings attenuate without more?

Mr. Coddington: That's right.

That's right.

And my second--

Unknown Speaker: And your second point is what?

Mr. Coddington: --My second point is that Payton applies only to evidence seized in the house, and that evidence seized outside the house should not be suppressed under Payton.

Unknown Speaker: That's the Solicitor General's argument.

Go back to your first point a minute.

I'm not sure I understood your response to Justice Kennedy.

Under your first point, you would say the first confession in this case is also admissible, wouldn't you?

Mr. Coddington: Well, if there is a Payton violation, and as you--

Unknown Speaker: Well, we're assuming there is.

I mean--

Mr. Coddington: --Okay.

Unknown Speaker: --isn't that where we start?

At least for purposes of decision we assume violation, don't we?

Mr. Coddington: Well, as you know, my fourth point is that the entry was consensual, and if so, there would be no Payton violation.

Unknown Speaker: Well, if you're right on that--

Mr. Coddington: If you... for the moment--

Unknown Speaker: --there's not... then we didn't really need to take the case.

Mr. Coddington: --Okay.

Assuming there is a Payton violation, I believe... and we've agreed in the state courts... that the confession in the apartment probably should be suppressed.

Unknown Speaker: Why?

Under your first argument--

Mr. Coddington: That's right.

Unknown Speaker: --there was probable cause and they got Miranda warnings.

Didn't he?

Mr. Coddington: Well, that's an extension that I was not... did not make in my brief.

However--

Unknown Speaker: I know.

But it seems to me it's a logical... a logical conclusion--

Mr. Coddington: --I would... I would certainly adopt that--

Unknown Speaker: --for your argument.

Mr. Coddington: --here.

But--

Unknown Speaker: And maybe you're right, but I don't know why you'd differentiate between the first and the second confessions.

Mr. Coddington: --Because that's the way it was litigated in the state courts.

But, however, I'm perfectly willing to adopt that position here.

Unknown Speaker: Well, you might... you might consider that confession to be evidence seized in the house.

Mr. Coddington: That... that was the point I was making.

But--

Unknown Speaker: xxx.

Mr. Coddington: --Well, I think Wong Sun answers that.

Evidence, I believe, of confession.

Unknown Speaker: Wong Sun?

Mr. Coddington: Well... that's what this all stems from.

Actually, in Wong Sun, by the way, the amicus makes the point Wong Sun is completely different.

Wong Sun was released on his own recognizance by a magistrate.

Unknown Speaker: Yeah.

Mr. Coddington: Which is quite different than the facts of this case.

The amicus argued as... against one of our arguments that perhaps the police should have released this man and then rearrested him.

I submit that would have been inappropriate and would not follow under Wong Sun.

Back to Justice Stevens' question.

I do submit that probable cause plus Mirandas under normal circumstances should be enough to render a confession voluntary.

And if we can get over the Payton violation, then I submit the confession in the apartment actually should have been admissible.

However, as I say, that was suppressed by the state court, and we only admitted the precinct confession.

The man was convicted with it.

So, that's not really a question that's before the Court.

Unknown Speaker: Did the police have the drawn guns when they went in there?

Mr. Coddington: That's a close question, Your Honor.

The testimony was that one officer had a gun in his pocket; one had a gun down by his leg.

The defendant was looking through a peep-hole in the door.

So I don't think that he ever saw the guns when he opened the door.

Unknown Speaker: Do you think that was consensual?

Do you think that to admit somebody with a gun is consensual?

Mr. Coddington: If he sees the gun, perhaps not.

But I don't think there is any evidence that this man saw the guns when he opened the door.

And the police testified they holstered their guns as soon as they went in.

When he opened the door... you know, they knocked on the door.

They said police.

I mean, this is not Gulag.

This is not Johnson.

Unknown Speaker: Well, then he was in.

Then he could do whatever he wanted to do.

Mr. Coddington: Well, I think he said,

"I'm glad you're here. "

"Come on in. "

I mean, I think there--

Unknown Speaker: What else do you do with a man with a gun?

[Laughter]

Mr. Coddington: --Well, I think you can shut the door.

That's what I'd do.

Unknown Speaker: You... you would shut a door with a man with a gun?

Mr. Coddington: Shut the door and duck, yes.

Unknown Speaker: Try it sometime.

[Laughter]

Mr. Coddington: No, I think you can do that, Your Honor.

Unknown Speaker: You won't be around to talk about it.

[Laughter]

Mr. Coddington: Well, I don't know, Judge... Justice.

Unknown Speaker: But, I mean, this rule in New York to me is not proper under the Constitution.

That you don't get a warrant of arrest.

Mr. Coddington: Well, let me touch on that, Your Honor.

Unknown Speaker: There's nothing.

There were five days--

Mr. Coddington: That's right.

Okay, let me--

Unknown Speaker: --And there was... there was no reason at all except the rule.

Mr. Coddington: --Well, under New York, law, as Your Honor knows... as Your Honor knows, the police cannot question a defendant without an attorney once they have an arrest warrant.

But as I read these--

Unknown Speaker: There's nothing wrong with that.

Mr. Coddington: --Well, I have no quarrel with that either.

But there's nothing in any of this Court's decisions that says that the Sixth Amendment requires the police to file charges so the man has an attorney just when they have probable cause.

Unknown Speaker: Well, Mr. Coddington, is it the policy then in New York that arrests are made without warrants to avoid that problem?

Mr. Coddington: No, Your Honor, it's not.

It's not.

Unknown Speaker: Well, that certainly is... is the argument made in part by the other side.

Mr. Coddington: It certainly is and--

Unknown Speaker: Do you think that's the custom or practice in any agencies in New York?

Mr. Coddington: --It may have been the custom of this particular police officer.

But, as I deal with at length in my reply brief, it certainly is not the policy of the New York City Police Department.

I mean, I'm not going to say that some police officers don't delay arrests so they can obtain confessions.

But I submit that that's perfectly proper.

I mean, there's one thing to flagrantly disregard a constitutional right.

It's another to tailor your conduct in conformance with the Constitution.

Unknown Speaker: Yes, but to make an arrest without a warrant in a home certainly violates the Constitution, does it not?

Mr. Coddington: If that was their intent when they entered--

Unknown Speaker: I mean, you... you concede that the arrest without a warrant was unlawful inside the house?

Mr. Coddington: --I agree that if it was non-consensual, it violated Payton.

But I submit to Your Honor that... I mean, the record here shows that these police were not--

Unknown Speaker: Well, do you think Payton was articulating a constitutional requirement?

Mr. Coddington: --I think so.

Yes.

Unknown Speaker: Uh-huh.

Mr. Coddington: Yes, I agree.

Unknown Speaker: So you would agree there was a constitutional violation?

Mr. Coddington: Well, understand, in Payton the police broke in the door when the man wasn't there and searched the apartment.

Here, in this case, at page 380 of the record, the detective, Detective Rivers, went to this man's apartment--

Unknown Speaker: Do you think Payton was determined only because the door was broken in?

Mr. Coddington: --Well, there was no warrant and it was a forceful entry.

Unknown Speaker: Uh-huh.

Mr. Coddington: So far as I know, none of this Court's opinions deal with anything like the circumstances of this case.

In Welsh v. Wisconsin they came late at night.

The same is true of Riddick.

In Payton and in Brown the police broke in the door.

Here, there is a knock on the door and an apparently consensual entry.

Unknown Speaker: Well, are you suggesting there's some sort of halfway house between consent to entry and a violation of Payton?

Mr. Coddington: No, I'm not.

I'm just suggesting that on this record it's a most unclear question.

Unknown Speaker: But the New York Court of Appeals found there was no consent, didn't they?

Mr. Coddington: That's correct, and that was a factual finding that was binding on them which I do not believe binds this Court.

At least, not as to the legal conclusion.

Unknown Speaker: No, but we--

Mr. Coddington: Which is why--

Unknown Speaker: --didn't grant certiorari on any... on any question like that, did we?

Mr. Coddington: --No.

No.

I think--

Unknown Speaker: I think you might be well-advised to assume that we're very unlikely to relitigate that question here.

Mr. Coddington: --Okay.

So then we will assume a Payton violation.

Okay.

Assuming a Payton violation, I believe, again, that... okay, back to Justice Stevens' question.

Assuming a Payton violation, I believe probably that the confession in the apartment should be suppressed.

I submit that the confession at the precinct should--

Unknown Speaker: Well, the only issue we've got is the station house.

Mr. Coddington: --That's just what I'm getting to.

Unknown Speaker: So we don't need to argue anything else.

Mr. Coddington: I was just trying to follow... follow-up on Justice Stevens' question.

I believe the confession at the precinct should not be suppressed.

One, that was taken outside of the house.

I believe that Payton should extend no farther than the house.

This is a nice bright-line rule that the Court can enact.

I think it has an ease of application that will aid police, prosecutor, defense counsel and state courts in application.

I believe... touching back to Justice Marshall's question... that the police behavior here was not designed to violate the Constitution.

In Hoffa and in Levasco, which I believe Your Honor wrote, the Court has held that the police do not have to file charges at the moment they have probable cause.

The Court has recognized that it is perfectly reasonable for police to go to a man's house, knock on the door, and attempt to question him before they make an arrest.

This is perfectly reasonable behavior.

And, as the Court knows, reasonableness is the test under which all Fourth Amendment decisions are rendered.

I submit that the conduct here was perfectly reasonable.

So, I submit that the confession at the precinct--

Unknown Speaker: Well, let me just stop you on this.

Don't you have to assume that a police officer's version of the arrest, rather than the defendant's version, in order to reach that conclusion?

Mr. Coddington: --Oh, yes, but--

Unknown Speaker: But were there findings that they told the truth and he was lying--

Mr. Coddington: --Yes.

Unknown Speaker: --when he said they barged into the apartment with their guns drawn?

Mr. Coddington: Yes, there was.

Unknown Speaker: Oh.

Mr. Coddington: When the court rendered its verdict, it expressly discounted... discredited... the defendant's version.

I can get the cite for that.

It's... I believe it's... well... it is at... it would be page 27, I believe, of the joint appendix.

No, excuse me, page 29 of the joint appendix.

"I cannot accept the defendant's version with respect to the course of nature in this statement or that his statement was other than voluntary or true. "

Unknown Speaker: Well, that's not... that's not with regard to how... what the behavior was at the time they entered.

Mr. Coddington: No, but I think--

Unknown Speaker: That's the course of--

Mr. Coddington: --I think that's the court's ruling on the entire testimony of the defendant.

Unknown Speaker: --I see.

Mr. Coddington: And I think the defendant's testimony at trial started with an involuntary entry, gunpoint questioning, so on and so forth, culminating in an involuntary confession at the precinct.

I submit the court specifically rejected--

Unknown Speaker: What did the court of appeals say about it?

What did the court of appeals say about it?

Mr. Coddington: --The court of appeals didn't precisely reach that issue.

The court of appeals applied the Brown factors, which is the next point I'd like to get to.

Unknown Speaker: The court of appeals did... said that Payton applied, didn't it?

Mr. Coddington: Oh, yes.

Yes.

We... we agreed on that now.

Unknown Speaker: And you agree that Payton applied?

Mr. Coddington: I agree now.

Yes, I do.

Unknown Speaker: Well, I wonder why we're sitting her for.

Mr. Coddington: I'm sorry, Judge, I didn't hear you.

Unknown Speaker: I wonder what's up left.

Once you agree on Payton, aren't you in trouble?

Mr. Coddington: Well... no.

Okay.

Excuse me.

I... I agree that the police violated Payton here.

However, I do not agree that the precinct confession should be suppressed.

I think that Payton should not apply to a precinct confession.

I submit that because there was probable cause Brown does not apply the way the court of appeals applied it.

I submit that because there was probable cause and Miranda warnings that should attenuate the precinct confession.

And in any event, I believe that the court of appeals misapplied the Brown factors in finding this confession was--

Unknown Speaker: xxx New York ever approved this rule of the police department that you did not need a warrant?

Mr. Coddington: --Oh, yes.

In People v. Lane, which is cited in my brief... I believe it's 64 N.Y. 2d.

Unknown Speaker: I only saw one case.

Is that the one?

Mr. Coddington: Yeah, Lane.

Now, see, in New York... under New York law one has to file--

Unknown Speaker: This rule is a rule of the police department, not the New York courts.

Mr. Coddington: --Well, okay.

I don't believe it's--

Unknown Speaker: Well, this opinion says that.

Mr. Coddington: --Yeah, that's true.

I think that was an unfortunate mistake, frankly.

As you notice in my reply brief... I mean, the policy of the department is emphatically to the contrary.

Unknown Speaker: Well, what does the policy of the New York Police Department have on us?

Mr. Coddington: Absolutely not--

Unknown Speaker: Are we bound by it?

Mr. Coddington: --Oh, no, no, no, no.

But I don't want to leave the Court with the impression that the policy is other than it is.

I mean, I would not like a factual mistake to color this Court's judgment.

But with respect to New York law, a search warrant can only be obtained once the police have filed an accusatory instrument.

This commences the action.

It triggers the New York right to counsel.

In Lane the felony complaint had been signed but had not been filed, and the court of appeals approved an admissible confession there.

The action hadn't commenced.

So, that is the law of the State of New York.

Now, back to the Brown standards.

For the reasons I'm arguing, I don't believe that the police conduct here was purposeful or flagrant.

In Brown, after all, they broke into the man's house and arrested him at gunpoint as he was coming home.

Here, the Payton violation was of the most minimal nature.

It was nothing like Payton, where they'd broken the door.

This is a knock on the door, we're the police.

He says,

"Come on in. "

"I'm glad you came for me. "

Now, had the hearing court found a consensual entry, which what we'd argued below, there would have been no Payton violation at all.

The Payton--

Unknown Speaker: xxx hopeless case?

Mr. Coddington: --Oh, yes.

Yes.

Unknown Speaker: You know, there is no consensual entry even if you just walk up to the... knock on the door and show your badge.

Mr. Coddington: They said they had a warrant, or misrepresented they had a warrant, if I'm not mistaken, and the court held that where there's a warrant there can't be consent.

If I'm not mistaken, that's Bumper's.

You know, here... I mean, had the court found its facts a little bit differently, there would have been no Payton violation.

My point is the Payton violation occurred here, or was found here at the hearing, some months after the entry.

As Justice Stevens said in the Garrison case... I mean, we have to judge these circumstances as they appear to the cops at the door.

Knock on the door, come on it, I'm glad... glad you came for me.

I mean, I submit that on an objective view to any reasonable police officer that would sound like an invitation to enter.

That's certainly the way it appeared to these police officers.

Unknown Speaker: That's why they had their guns drawn.

Mr. Coddington: Their guns were down where the defendant couldn't see them.

I... I would admit that, you know, if they were pointing them at his head, it would be different.

But the record is clear that he could not see the guns and the guns were holstered as soon as they went into... went into the defendant's apartment.

Unknown Speaker: I know, but even if they had them unholstered and concealed, they weren't entirely convinced that they would be welcome, were they?

Mr. Coddington: Well, they were prepared.

This... this was, after all, a homicide investigation and there were three knives within easy reach, as it appears once they got into the apartment.

But the defendant was completely congenial.

I mean, as soon as they saw each other, any coercive atmosphere disappeared.

They holstered their guns.

They immediately read him his Miranda rights.

Unknown Speaker: Again, that's... that's if you accept the police officer's testimony.

Mr. Coddington: Well, that was the... yeah, the testimony--

Unknown Speaker: And as I read over the trial... what the trial court said, he really was concentrating on the second confession, not what went on at the time of the... the entry.

Mr. Coddington: --Well, I submit, though, that in order to find attenuation--

Unknown Speaker: And also it's also clear that all the courts in the New York system agreed that the entry was not consensual.

So, I think that means we have to accept at least some degree of credibility to the other side's version of the facts.

Mr. Coddington: --Well, okay.

But, I mean, in terms of the flagrancy of the police conduct here, I think it militates on my side towards that.

I mean, this is clearly not, you know, a flagrant violation as has occurred in Brown.

This is--

Unknown Speaker: Well, of course, it depends on what one means by the word flagrant.

If there is a deliberate policy to violate the Constitution in order to avoid the effect of a New York rule that would make it improper to interrogate the person, one might say that's flagrant too--

Mr. Coddington: --Well, there's--

Unknown Speaker: --if that's the case.

Mr. Coddington: --There are two answers to that.

One is California v. Greenwood, of course, in which the Court held that notions of state law should not control for Fourth Amendment purposes.

And also... I mean, the flagrancy... at least as I understand the case, it has to be flagrant violation of the Federal Constitution.

I mean, a state rule of law, I submit, probably is not a flagrant violation within the meaning of the Fourth Amendment.

Unknown Speaker: But this is not state law we're talking about.

Mr. Coddington: Well, the--

Unknown Speaker: This is the police department of a city's law.

Mr. Coddington: --To avoid--

Unknown Speaker: They are... aren't they different?

Mr. Coddington: --Well, yeah.

To avoid a New York state constitutional requirement, not a Federal constitutional requirement.

Patterson v. Illinois, that's--

Unknown Speaker: --police procedure is wrong.

Yeah.

Mr. Coddington: --I am not trying to condone the police procedure, Your Honor.

I am merely saying that it is not a flagrant disregard of the Federal Constitution.

This Court has recognized--

Unknown Speaker: xxx flagrant and violations of my Constitution.

Mr. Coddington: --Well, the difference has to do with the police officers' intent.

Unknown Speaker: Well, what would have made it flagrant?

For them to have cursed him or something?

Mr. Coddington: No.

What would have been flagrant would have been what happened in Brown.

Unknown Speaker: If they'd hit him in the head with a blackjack, would that have been it?

Mr. Coddington: That sure would have been flagrant.

Unknown Speaker: Would that... well, what... what below that is flagrant?

Mr. Coddington: Below that would be the facts as in Brown, where they break into the man's apartment, wait for him to come home.

As he walks up to the door, arrest him at gunpoint.

That's flagrant.

That's clearly flagrant.

Unknown Speaker: I guess shooting him would be flagrant too, wouldn't it?

Mr. Coddington: It sure would.

But, I mean, here--

Unknown Speaker: Well, are we obliged to find what is flagrant in this circumstance?

Because the City of New York... I mean, the State of New York in its opinion has already said it was a violation.

They didn't need to say flagrant, I didn't think.

They said it was a violation.

Mr. Coddington: --Well--

Unknown Speaker: Now, why can't we say the same thing?

Mr. Coddington: --Well... okay.

I do believe if you are going to apply the Brown attenuation standards, you do have to come to grips with the question of whether or not it's flagrant.

As I read the Court's opinions, the flagrancy of the police conduct is one of the most important considerations.

So, I submit the Court is going to have to answer that question.

I mean, there are violations.

For example, take United States v. Leon where the taint is the good-faith reliance on what turns out to be an invalid award.

There should be no suppression at all.

I mean, now, there is a violation that's not flagrant.

The same may be said of Crews and Ceccolini and in Michigan v. Tucker where the Fourth Amendment violation leads to the testimony of a live witness.

Again we have a violation that's not flagrant.

I submit the same thing should be said here.

Here there is a Payton violation, but under the circumstances of the entry and the police behavior and the fact that they can go to a man's apartment and attempt to gain entry to question him, plainly the violation is not flagrant.

Your Honors, if there are no further questions, if I may, I'd like to reserve the remainder of my time for rebuttal.

Unknown Speaker: Very well, Mr. Coddington.

Mr. Parker, we'll hear now from you.

Argument of Barrington D. Parker, Jr.

Mr. Parker: Mr. Chief Justice, and may it please the Court:

On January 16th, 1984 three New York City police officers, each with 18 years experience on the force, went to Bernard Harris' home both to question him and to arrest him in connection with a homicide five days earlier.

Five days earlier, on the 11th, the police officers, specifically Detective Rivers who was in charge of the investigation, had probable cause to arrest Harris.

In addition, they knew on that day, the 11th, where he lived.

The officers were apparently not concerned that Harris was a threat to anybody else, nor were they concerned that he might flee because between the 11th and the 16th, insofar as the record shows, they made no effort at all to apprehend him.

Now, the specific purpose in going to Mr. Harris' house was to question him.

Both officers testified to that.

McCarthy and his partner, Rivers.

Both of these were 16-year detectives.

The officers did not have a warrant, no effort had been made to obtain a warrant.

Furthermore, the record shows... excuse me... the record does not suggest that the arresting officers in connection with their efforts to arrest Mr. Harris went anywhere other than to his house.

Now, obviously the police officers in this case are presumed to have knowledge of and be bound by the district court's decision in Payton, a decision which, of course, in the first instance talked directly to New York City Police Department.

In addition, there is a memorandum which is not part of the record but which is quoted in the state's reply brief.

That memorandum apparently was circulated to all police department... all police force members and specifically to detectives at about the time Payton was decided.

So, I think the record is clear that these officers knew what Payton required.

So, it was after dark.

There were no exigent circumstances at all.

And although the arrest took place four years after this Court's decision, Detective Rivers, the 18-year veteran, testified that it was not the custom in his department to comply with what this Court said the Fourth Amendment required in Payton.

He was asked by the court if it was the custom in his department to get warrants.

Detective Rivers said no.

And I suggest to this Court that there is nothing in the record which contradicts or qualifies Detective Rivers' admission about the existence and the application of the custom.

Unknown Speaker: Was he... can you tell from the question and answer whether he was referring to search warrants or arrest warrants?

Mr. Parker: The questioning... it was not specific, but in context they were talking about arrest warrants.

I think the... there are several important things about--

Unknown Speaker: The police here would have been no better off with an arrest warrant, would they?

Mr. Parker: --Pardon me?

Unknown Speaker: The police here would have been no better off with an arrest warrant than with probable cause, would they?

Mr. Parker: They would have been... they would have been better off... they could have lawfully arrested him at home with an arrest warrant.

A simple... simple probable cause would not have done that.

I think one of the ironies of this case is that the petitioner could have been arrested anywhere except in his home.

The police made no effort to arrest him anywhere except in his home.

Now, Rivers' testimony and--

Unknown Speaker: But do you think that makes the person arrested somehow more likely to confess than if he were arrested outside his home?

Is there something about that fact that enhances the exploitation of that illegality?

Rebuttal of Peter D. Coddington

Mr. Coddington: Well, I... I don't think the... I think they are obviously both... potentially... potentially coercive events.

I think the fact that he was... that an arrest in the home is not for Fourth Amendment purposes of any less significance than an arrest on the street.

We're not making that argument.

But to return to Detective Rivers--

Unknown Speaker: Or any more significant?

Rebuttal of Barrington D. Parker, Jr.

Mr. Parker: --I'm sorry?

Unknown Speaker: Or any more significant?

Mr. Parker: Or any more significant.

To return to--

Unknown Speaker: Well, but... but that is the point... that is the point of your case, isn't it?

Because I... I take it you would concede... maybe you wouldn't... I take it you would concede if there is an arrest outside and the warrant is somehow defective, that the statement is nevertheless admissible.

Mr. Parker: --I think this Court's decisions indicate that that's... that's... that rule... that result would obtain, Your Honor.

Unknown Speaker: Well, then it is the fact that he was arrested in violation of Payton in his home that establishes the invalidity that you must rely on here, is it not?

Mr. Parker: The... it's our position that the statement... the statement given later at the station house must be suppressed as a result of the illegal arrest in the home as a result of a Payton violation.

Unknown Speaker: And why is it that a statement taken at home is deemed to be more coercive than a statement taken someplace else?

Mr. Parker: Well, I'm not saying that's a per se rule.

I think you have to look at all of the facts.

It--

Unknown Speaker: You're... you're not saying it's a per se rule--

Mr. Parker: --I'm sorry, I--

Unknown Speaker: --that a... that a statement taken at home in violation of Payton is... is inadmissible?

Mr. Parker: --No, no.

I'm not saying that a statement taken at the home is necessarily more coercive than a statement taken somewhere else.

I am saying, of course, that a statement taken at the home or a statement taken as a result of a Payton violation becomes inadmissible.

Unknown Speaker: Well, suppose there hadn't been any statement taken at the... in the house at all but there was an entry without a warrant, without an arrest warrant.

And you go to the station house, give him the Miranda warnings and then you get a statement.

Would you be here then?

Mr. Parker: Yes, I would, Your Honor.

Unknown Speaker: You would say it's just the fact that there was an illegal entry that's coercive?

Mr. Parker: Well, I think in those circumstances the... the... the rule that applies is that a confession obtained through custodial... interrogation after an illegal arrest should be suppressed unless the state shows sufficient attenuation.

Unknown Speaker: Uh-huh.

That's the Brown--

Mr. Parker: That's the Brown rule, Your Honor.

Unknown Speaker: --v. Illinois rule?

Mr. Parker: And it's--

Unknown Speaker: So we need... you needn't focus on the statement taken at the house at all, as to whether it might contribute to the coerciveness?

Mr. Parker: --Well, I think that's not in this case.

I believe this Court granted certiorari only with respect to the station house statement.

But there obviously are circumstances where the... a statement given earlier might be on of the factors considered under Brown that made the second... second statement less attenuated.

But I don't believe that's something that is presented for this Court's decision here.

Unknown Speaker: The Solicitor General in a brief filed in this case suggests that we shouldn't... we should limit Brown v. Illinois and its rules on attenuation to circumstances of arrests without probable cause.

Mr. Parker: Two things about that, Your Honor.

First of all, I do not adopt and I do not believe that what this Court was concerned about in Brown and Dunaway and Taylor were arrests without probable cause.

I believe that in those cases what the Court wrestled with was the notion of how best, how most efficiently to deter an illegal arrest.

Arrests can be illegal for a variety of reasons.

They can be illegal because there is no probable cause.

They can be illegal because there happens to be no warrant.

I believe that there is no good policy reason to focus on one type of arrest and exclude another type of arrest that because of the circumstances might be more flagrant.

What you have in the usual circumstance of no... what it seems to me complicates the cases involving arrests without probable cause is this Court's recognition of the difficulties police officers have in making spontaneous or difficult on-the-spot judgments.

But here we don't have that situation.

This case, I suggest, is far more flagrant than Dunaway or Brown.

It... it, I would suggest, creates a substantially more compelling justification for the absence... excuse me, for the application of an exclusionary rule than Brown, Taylor and Dunaway.

It was a home arrest.

They knew they had to get a warrant.

The policy manual told them.

Five days, no effort to get the warrant.

They could have arrested him anywhere.

They intended to arrest him without a warrant.

The officers made no effort to look for him anywhere but in the home.

And as the New York Court of Appeals found, this series of steps by the police was intended to avoid restrictions on interrogation... custodial investigation imposed by the New York State Constitution--

Unknown Speaker: Well, why should that interest us, what the New York Constitution imposes on the New York state police officers?

Mr. Parker: --Well, I... it... I think it... it adds... what it does, simply, Your Honor, is it... it... I think it makes more plausible the existence of the custom.

It indicates why that custom probably arose, and why it is plausible to assume in New York... to assume, as the court of appeals did in New York, that the custom was followed.

Unknown Speaker: But you're saying is that it rules out other possible explanations.

Mr. Parker: It tends to rule out--

Unknown Speaker: Yeah.

Mr. Parker: --other possible explanations.

Unknown Speaker: If the... if the reasoning behind Payton is that the wrong there is the entry of the home without a warrant, why... why isn't that wrong satisfactorily compensated for or protected against by simply excluding whatever the police might have seen or seized when they came into the home?

Mr. Parker: It does not do that, Your Honor, because in many instances what the police officers are likely to be looking for when they go to make a Payton... to make an arrest is not simply tangible or testimonial... excuse me... is not simply tangible evidence, but they go, as they did here, to try to get some sort of statement.

And the Solicitor General's approach to the problem doesn't address that concern.

Unknown Speaker: But... but they can get that by arresting him on the street, can't they?

Mr. Parker: They could have arrested him on the street.

No question about that.

Unknown Speaker: But--

Mr. Parker: But they chose to... but it... excuse me.

I'm sorry.

Unknown Speaker: --If... if you're trying to figure... as I take it all of us are trying to figure out exactly what happened here and why it happened, it seems to me the only... the most logical explanation for why the police did this at home rather than on the street... if they were trying to pull something off... was to get inside the house and see something.

That they could do inside the house, and they couldn't do it on the street.

They could talk to the talk to the fellow on the street just as they could inside the house.

Mr. Parker: Well, I... I cannot really fully reconstruct what the thinking of the police officers was here, but if you look at the kind of information they had when they went to his house and what may have been missing, I think it's... what it looks like they, as we've said, had probable cause but may not have had enough to convict this man.

And what they needed was a statement.

And maybe after... based on their experience they thought the best way, the easiest way to get the statement was to confront him at home.

I... I don't know.

I'm speculating about that.

But the record certainly doesn't definitively answer that.

But if you assume that in some instances... for example, in this instance... the police wanted to get a statement, then they would not be deterred from Payton violations by the Solicitor General's rule.

Unknown Speaker: May I ask a question of New York practice?

As I understand it, if they had gotten a warrant, that would be an accusatory instrument which would have required the appointment of counsel and precluded questioning until the lawyer was appointed.

But without going... without getting a warrant... say, they just picked up a man on the street on probable cause... would they... would that same prohibition against questioning apply?

Mr. Parker: They could have arrested him on the street without a warrant.

The accusatory instrument would not have had to have been filed on the--

Unknown Speaker: At what--

Mr. Parker: --Excuse me.

Unknown Speaker: --At what point in the process would there have been... would it have been necessary as a matter of New York law to file something that would have terminated their ability to go ahead and question him?

Mr. Parker: I believe he would have been arrested, he would have been arraigned, and at arraignment... or shortly after arraignment some kind of information, a felony complaint or a misdemeanor complaint--

Unknown Speaker: I see.

Mr. Parker: --would have had to have been filed and at that point, at arraignment, the right to counsel would have attached.

Unknown Speaker: So that until they either get an arrest warrant or some kind of a formal complaint is filed leading to an arraignment they could go ahead and question him?

Mr. Parker: That's correct, Your Honor.

I believe that the... the really principal difference that separates the prosecutor's and our position is whether a Brown attenuation analysis really applies in these circumstances.

It's our argument that it certainly does because if the primarily rule of the... primary thrust of the exclusionary rule is going to be deterrence, stopping a... not applying it to a... not applying to a situation here where you have an arrest that is... has been found to be purposefully flagrant is not going to... is... is not going to deter police or eliminate this custom.

In view of the Court's position on consent, I will not address that.

I believe I've covered most of the... covered the main points I have.

I will... if there are no questions, I will surrender the balance of my time.

Unknown Speaker: Mr. Parker, maybe... maybe you can explain to me what I really don't understand.

What... what is attenuated under Brown?

I... I... if the object of excluding the confession was to exclude something that has been coerced, I could understand that you would look for attenuation of coercive impact.

But that's not the... that's not the... the object of the exclusion, as I understand it, is it?

Mr. Parker: I think the object of the exclusion in Brown is to eliminate the incentive to violate the Fourth Amendment.

Brown wrestled... in addition to wrestling with the issue of how Miranda warnings fit in there, also following Wong Sun and the older cases, wrestled with the... a notion of where you draw the line following an illegal event in order to bring about deterrence.

Unknown Speaker: So you think the most significant factors are how flagrant was the... was the event which ought to be sanctioned by the exclusion and... it's just sort of strange to refer to that as attenuation.

I... I... that's... that's what--

Mr. Parker: I'm not sure... I'm not sure I could think of a better term.

It's a... it's a shorthand that we're all familiar with.

Unknown Speaker: --Well, you... yeah.

Doesn't... doesn't it mean in part letting the defendant get back to normal from whatever effect the wrongful action might have had on him?

Mr. Parker: It means that in part, I believe, and that's why it looks to the temporal factors.

But it... it's complicated because I believe this Court's opinions have now indicated that as far... insofar as attenuation analysis is concerned the most important factor is the flagrancy of the police misconduct.

Unknown Speaker: Haven't we said that it's not a Fifth Amendment principle?

Mr. Parker: It's a Fourth Amendment principle.

Unknown Speaker: It's a Fourth Amendment principle so really what we're looking to is not how coerced was the confession.

And that's what gives me the difficulty in... in conceptualizing it as attenuation.

Mr. Parker: Well, I... I realize that the... that there are gray areas around these principles, but I think that in terms of setting doctrine that courts can apply and have now experience with applying and are comfortable with applying, the attenuation analysis seems to be working.

There is no indication here, in the record here... in this case that it's not.

Unknown Speaker: Well, the question is whether... I suppose in general whether this statement at the station house was a product of the arrest in the house without a warrant.

Mr. Parker: Well, I believe under this Court's controlling doctrine that burden--

Unknown Speaker: Yeah, well isn't that... isn't that the issue or not?

Mr. Parker: --Yes, I would agree.

Yes.

Unknown Speaker: Yeah.

Mr. Parker: But it--

Unknown Speaker: Are you sure you would agree?

I think that makes it a Fifth Amendment principle.

I think when you say a Fourth Amendment principle, you--

Mr. Parker: --Well, that's a factual question certainly.

But--

Unknown Speaker: --Well, would you... if you say it is a product there of the illegal entry, I would suppose it would be the same product if a statement was taken two weeks later.

Mr. Parker: --But there it might be... there might be other intervening factors.

And, of course, they'd begin to implicate Fifth Amendment concerns.

But here, of course, the police went to Harris' house for the purpose of getting a statement and... and they got a statement.

Unknown Speaker: Well, but... they got a statement in the house and they got one at the station house.

But the issue is the one... is about the one at the station house.

Mr. Parker: That's correct.

Unknown Speaker: Mr. Parker, can I ask you... are you through +/?

another question about New York law that I'm just not entirely clear on?

This rule about the accusatory instrument makes it impermissible to question the suspect without a lawyer until a lawyer is... and he can't waive that right except in the presence of a lawyer which, as I understand it, is a holding in your Samuels case in 1980.

Was that the law prior to Samuels?

Mr. Parker: Oh, I--

Unknown Speaker: Is this an old New York rule or is this kind of a by-product of Payton is what I'm really asking, I suppose.

Mr. Parker: --Now, I believe this body of law existed before Payton.

It went back to some decisions in I believe the mid to early '60s.

Unknown Speaker: I see.

Mr. Parker: And, of course, when Payton came along the body of law imposing the restrictions was suddenly confronted with this new element, this requirement that this Court set in Payton.

I think what is significant there is that following Payton the legislature was asked to reconsider the requirement of accusatory instrument filing as a predicate to an arrest warrant.

And the argument was made that some difficulties might be created... some difficulties had been created because of this Court's Payton decision, and the legislature rejected it.

So here we have a case where the New York legislature... it's not... of course, the legislative history is not as complete as you would have for a congressional action.

But there is some indication that the legislature in New York was aware of this position... aware of this situation and did not change... did not change the law having been advised of these concerns.

Unknown Speaker: Thank you, Mr. Parker, and thank you for serving as an amicus curiae for the Court in this case.

Mr. Parker: Thank you.

Unknown Speaker: Mr. Coddington, you have eight minutes remaining.

Rebuttal of Peter D. Coddington

Mr. Coddington: Thank you, Your Honor.

I have no intention of taking all eight minutes.

I expect to be very brief.

If I may, I'd like to begin by answering Justice White's question.

I submit that the precinct confession here is by no means the product of the entry at all.

I think the Payton violation here is completely addressed the seizing whatever evidence might have been found in the house, and to extend it further than that I think would be to apply a "but for" rule which this Court in Brown said was not the law.

So, I submit that it is not a product whatsoever of the entry.

And I think in terms of attenuation you can look to the second statement for evidence of attenuation.

It was much more... much more detailed than the first.

The first statement essentially said, I killed her because she was an unfit mother.

The second statement, about an hour later, went through the detail of the prior affair with her, the abduction, that she lied to him, so on and so forth, and none of these details were given to the defendant by the police.

This all came from his own recollection, his own independent act of free will.

That's what I believe attenuates this confession.

With respect to the time factor, here it's about an hour.

In Rawlings I believe it was about 45 minutes.

So, I mean, there is precedent in this Court's opinions for the time factor serving the effects of attenuation.

Finally, back to the non-policy... I'll call it... of the New York state police department.

Remember, in the record only one police officer testified that it was the custom to not get warrants.

McCarthy at joint appendix page 8 said that if the defendant hadn't opened the door, he'd have left.

Rivers himself at page 380 of the record testified that he'd been there once before.

Nobody was home.

He left.

And why they went to this man's house?

Unknown Speaker: This isn't really the issue where you say there is a Payton violation and whether it's a product of a policy or not.

Mr. Coddington: Okay.

Fine.

Good.

Then that's--

Unknown Speaker: Isn't that right?

Mr. Coddington: --That's the point I'm trying to make.

And if this goes to the flagrancy of the police conduct, which is what most of the thrust of the amicus' argument was.

That's what I'm responding to.

It is not flagrant.

I believe it was... had the facts been found slightly differently, it would have been in all respects lawful.

It was not flagrant.

This is, frankly, I think a clean case.

This is a case where a hearing court with the benefit of hindsight found the facts differently than they appeared to the police.

And that's why we're here.

For all of these reasons, Your Honors, I think that the court of appeals misapplied this Court's precedence and I ask you to reverse their judgment.

Chief Justice Rehnquist: Thank you, Mr. Coddington.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinions of the Court in five cases will be announced by Justice White.

Argument of Justice White

Mr. White: Opinions have been filed with the Clerk explaining the actions taken in the following five cases.

First, in No. 88-1000, New York against Harris, we reverse the decision of the New York Court of Appeals by a five-to-four vote.

Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, has filed a dissenting opinion.