Minnesota v. Olson - Oral Argument

Argument of Anne E. Peek

Chief Justice Rehnquist: We'll hear argument next in Number 88-1916, Minnesota v. Robert Darren Olson.

Mr. Peek: Thank you, Mr. Chief Justice, and may it please the Court:

This case presents two critical and recurring issues under the Fourth Amendment to the U.S. Constitution.

First, when does an overnight visitor have a sufficient expectation of privacy in a house to enable him to challenge his arrest there?

The state contends that merely hiding overnight in a place with permission of the owners is not enough to create a privacy expectation.

And secondly, is flight of a dangerous felon believed to be armed an exigent circumstance which justifies a warrantless arrest?

The state contends that it is.

Unknown Speaker: Now, what's at issue here is a statement that was given at the police station?

Mr. Peek: That's correct.

Unknown Speaker: At the time that he was at the police station, was there not probable cause to hold the prisoner?

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

Unknown Speaker: Well then, how is it that this statement is really related to what occurred in the dwelling in any event?

Mr. Peek: Well, the respondent is claiming that his arrest was illegal under the Fourth Amendment and that his statement was a fruit of the illegal arrest.

Unknown Speaker: Well, there would have been a right, I take it, to let him go for 30 seconds and re-arrest him after he got outside of the dwelling.

Mr. Peek: I suppose that's true, Your Honor.

The state, however, has never--

Unknown Speaker: There's no right to be free from custody once they are in the station house just because there has been an unlawful entry in the dwelling, is there?

Mr. Peek: --I'm sorry, Your Honor?

Unknown Speaker: There is no right to an immediate release at the station house, a release from custody, merely because there has been an unlawful entry into the dwelling, even assuming the entry to the dwelling was unlawful?

Mr. Peek: I suppose that's true, Your Honor.

Unknown Speaker: Well, then, why is it that we really have to reach this issue?

Why isn't this just an admissible statement?

Mr. Peek: Well, the state, of course, has always felt that this is an admissible statement because the arrest was legal, and we've never really argued--

Unknown Speaker: Yes, but you don't... but you don't... you don't argue the point that the statement's not tainted in any event.

Mr. Peek: --No.

It was never argued below and we've never argued it through the process, Your Honor.

It's also the state's position that this Court would not need to reach the exigent circumstances issue if it ruled that the respondent did not have privacy interest in the home, also, and that's been the state's main contention all along.

Respondent was a getaway driver involved with his co-defendant in an armed robbery of a gas station and the cold-blooded murder of the gas station attendant.

Was respondent's temporary hideout his home?

It's clear that a person has a constitutionally protected right to privacy in one's own home.

It's also clear that one can have a constitutionally protected right to privacy in a place other than one's home under certain circumstances.

This case is about when.

This Court has stated--

Unknown Speaker: Well, doesn't an ordinary house guest have some expectation that he won't be bothered by strangers while within the home?

Isn't there some reasonable expectation there, when I'm a guest in someone else's home?

Mr. Peek: --I think there's some expectation, although whether it's--

Unknown Speaker: And isn't it a reasonable one, one that society is prepared to accept?

Mr. Peek: --Well, I think it depends on all the circumstances of the case.

Certainly, if a visitor... for instance a relative, if I stay in my parents' home for a period of time, I would have an expectation of privacy in that home.

However, if I were just a casual visitor to the home, my expectation of privacy would be much less.

Unknown Speaker: Well, don't we need some fairly clear rules for the police, things that aren't so fact specific?

How's the policeman going to know the length of the visit, or whether a key has been given, or who has given permission?

I mean, why shouldn't we try to craft and follow fairly simple rules to govern the police action?

Mr. Peek: I agree with you that a simple rule would be nice.

Unknown Speaker: Well, you're certainly not asking us to craft one here.

It's very fact-specific and very complex.

Mr. Peek: Well, I have two responses to that.

One is that I think that we probably don't want the policeman to be making standing decisions, that in fact what we would want in the society is for policemen to be concerned with public safety issues and--

Unknown Speaker: Why, here, shouldn't the police go' get a warrant?

Mr. Peek: --The police in this case didn't get a warrant because they felt that--

Unknown Speaker: Because it was Sunday.

It was a "never on Sunday" rule, apparently.

Mr. Peek: --I think if this case had occurred on the weekday that they would have done the same thing.

They were faced with a murderer, someone who they felt was dangerous, someone who they felt was armed--

Unknown Speaker: Well, that's the exigent circumstances.

But just on... on the right of the police to enter the dwelling, Justice O'Connor indicates that the rule you argue is fact specific, and I might add it's all post hoc.

You don't know about the key, and how long he's been there, and whether he has the right to exclude guests until after he is arrested and it comes out in suppression, so it's a very unworkable rule, it seems to me.

Mr. Peek: --Well, presumptively, if the police are entering the home they want them to get a warrant, that's right, but if--

Unknown Speaker: Ms. Peek, your answer is, it doesn't matter, does it?

The police are breaking the law.

The only thing we're arguing about... there's no doubt that they violated the Constitution.

The question we are arguing about today is, have they violated your right as well as his right?

It's clear that they're violating the right of the person who owns the premises.

The only question is, whether they, in addition, are violating any right of the guest, isn't that right?

Mr. Peek: --Well, that's correct.

Unknown Speaker: So predictability has nothing to do with this.

The... the police don't... the police are in the wrong no matter what, isn't that right?

Mr. Peek: Well, presumptively they should get a warrant if they're going into a private home.

Later--

Unknown Speaker: They have clearly violated somebody's constitutional right.

The only thing we're arguing about is whether they've violated the guests as well as what they clearly have violated... the owners.

Mr. Peek: --Well, that is... that is the crux of the issue in this case.

Unknown Speaker: So police predictability is really out of the case.

Well, except for the fact that they know this man isn't the owner, and they don't care if they violate the owner's constitutional rights because they're not worried about introducing any evidence against him.

They don't even care about this... the guy they're looking for.

Mr. Peek: Well, I don't think they felt that they were violating anyone's rights because they felt they had exigent circumstances to make the warrant--

Unknown Speaker: Well, forgetting exigent circumstances for the moment, is it not your position that the police can arrest a person in a dwelling if that person has no reasonable expectation of privacy there?

That's your position, isn't it?

Mr. Peek: --No, no.

What we've been saying all along is that... that we want the policemen to concern themselves not with standing but with probable cause and with exigent circumstances and the other things that they need to decide, and that they should try to proceed legally based on those facts.

Later, a judge can decide whether or not they were right, and whether or not whose rights were--

Unknown Speaker: If they were right, was there not... did they not have the authority to enter the home and make the arrest, or do you concede that they were violating the rights of the owner of this home?

Mr. Peek: --Well, the state has never conceded.

It hasn't been an issue, because there's been no evidence against the owners and the owners haven't raised it.

The issue all along has been the defendant's rights, and so the state has never conceded that the arrest was illegal, but if the arrest was illegal, the issue is, whose rights were violated?

I think--

Unknown Speaker: If there were exigent circumstances, the arrest was not illegal.

Mr. Peek: --That's correct, Your Honor.

I think our position has been that societal... the societal... public policy would indicate that we do not want policemen to make arrests based... to make entries based on whether or not someone has standing.

We want them to presumptively get a warrant if they need to, and if they don't need to they go in, and later they find out who's in the house and who has interest and later the court can sort out who has standing to object to whatever happens.

Unknown Speaker: Quite so, and in... in a way a vague and unpredictable rule is even better, right, isn't it, because then they can never be sure that even though they're violating the Constitution there will be no harmful consequence following from it?

We should really have a very, very unpredictable rule.

Mr. Peek: I don't think... I think the problem is it's very difficult to... to formulate a simple rule in this case.

Unknown Speaker: We'll resume there at 1:00.

Chief Justice Rehnquist: We'll resume the argument in Minnesota against Olson.

Ms. Peek.

Mr. Peek: I would like to, if I could, briefly summarize why the state should win in both issues.

With respect to the privacy issue, respondent has the burden of proof to show that he had a legitimate expectation of privacy in the duplex.

However, he was not the owner, he was not related to the owner, he had no key, he stayed there one night, he had no possessions there other than a few clothes, he had no toothbrush, he'd never slept there before, he was never left alone there, there was no area designated for his exclusive use, and he had no right to exclude others.

The most that can be said for respondent is that he was--

Unknown Speaker: But I thought... I thought the Minnesota Supreme Court concluded that the respondent had the right to exclude others.

Mr. Peek: --The Minnesota Supreme Court did not make a finding that he had a right to exclude.

What it merely did was state what it said the record said.

However, the record in fact did not say that.

Unknown Speaker: Well, are we bound by that determination, do you suppose?

Mr. Peek: I don't believe so, Your Honor.

Unknown Speaker: Don't we normally accept determinations of that type by state courts?

Mr. Peek: It's not a factual finding that's due deference from this Court.

It was merely a statement of what the record revealed.

If the record is not in fact... that's not in fact what the record does show.

Unknown Speaker: Well, what did the... what did one of the owners say about this matter?

Mr. Peek: I quote from the record:

"And if somebody came over to see Mr. Olson, did he have your permission to admit them or refuse to admit them? "

Louann Bergstrom answered,

"I don't know. "

"It was never discussed. "

Question:

"Had somebody come over to visit Mr. Olson, would you have allowed him to decide if that person would visit with him? "

Answer:

"If I saw no reason not to. "

We would contend, Your Honor, that that is not the type of right to exclude that this Court has required in its numerous cases on right... right to privacy.

Unknown Speaker: Ms. Peek, I don't understand what you're saying.

Is it your position that if somebody knocked at the door and the person said, "I want to come in", that he would have had to let them in?

Mr. Peek: If he and Mrs. Bergstrom were in the home and--

Unknown Speaker: No.

He's the only one home and somebody, some stranger knocks on the door and says hi, I was just passing by.

I thought I'd like to walk around and see what this apartment looks like.

Do you think he would have had to say hey, I have no right to exclude anybody?

Do you really think--

Mr. Peek: --He may or may not have had the right to exclude in that circumstance, but in this case he was never left alone so he never had an opportunity to do that.

He was never... unlike Jones, in the Jones case, who had a key and who was left alone in the duplex, he therefore could let people in and out.

Olson never had... he was never left alone there, and that's... that's real important.

Unknown Speaker: --It all depends on the accident about whether he happened to have been left alone?

Mr. Peek: Well, I think it depends on all the facts and circumstances.

In this case--

Unknown Speaker: What if you had a teenager home with the parent, would the teenager... and the parent says come on in, would that mean the teenager has no privacy interest in the home?

Mr. Peek: --No, not necessarily.

Unknown Speaker: Well, then, why is that different?

Mr. Peek: Well, we're saying that... that Olson had basically nothing but legitimate--

Unknown Speaker: Then you would have to answer Justice Scalia saying even if he were all alone he couldn't have said no.

Don't you have to look at it as though this person were the only person answering the door?

Mr. Peek: --When you are in someone else's home, your right to exclude will always be subservient to the owner's--

Unknown Speaker: Sure.

Mr. Peek: --And certainly as long as the owner is there.

Had Olson been left alone there, we might have a different case.

We are not saying that for sure that the answer would be different--

Unknown Speaker: Well, if you concede that he had standing when he was alone, wouldn't he have had precisely the same privacy interest just because someone he is familiar with is present?

Why does that lessen his privacy interest?

Mr. Peek: --It has to do with the control that he has of the apartment.

In this case, he was given no express and had no implied authority to exclude or--

Unknown Speaker: What is your position on whether he could have refused to let somebody in if he'd been there alone?

Don't you agree he had that authority?

Mr. Peek: --I'm sorry?

Unknown Speaker: What is your position with regard to his privacy interest had he been alone?

Mr. Peek: I think if he'd been alone that would have been a factor that would have been in his favor.

I think you have to look at all the rest of the factors to determine whether it's reasonable... a reasonable expectation that he would have the right to exclude.

It's the state's position that the right to exclude is not the only factor that should be looked at.

Unknown Speaker: Well, Ms. Peek, may not the factor that he was never left alone have some bearing on what authority the people who owned the house wanted him to have?

Mr. Peek: I think that's true, Your Honor.

Certainly, when I give a visitor a key, or I say,

"Make yourself at home; we're leaving for several hours. "

that type of thing confers more authority and raises your expectation with respect to your privacy in that home.

Unknown Speaker: It doesn't bother you that all of this inquiry is post hoc, consisting of facts that the police will never know one way or the other until after the arrest has been made?

Mr. Peek: No, Your Honor, because I think in every case we want the... we want policemen to assume that the defendant has standing.

We want police to not enter homes unless they have a warrant, unless they have exigent circumstances or some exception to the warrant requirement.

We don't want them to decide whether to enter a home or not--

Unknown Speaker: Well then, why don't we just enact a rule to that effect?

If that's what you want, that's what you get.

Mr. Peek: --A rule to that effect, that is the rule, but presumptively they must have a warrant if they enter a private home.

Later--

Unknown Speaker: Well, and then we'll enforce the rule by saying that if you don't have a warrant it's an illegal arrest.

Mr. Peek: --Well, subject to the exceptions of the warrant requirement, in this case, exigent circumstances was the--

Unknown Speaker: Well, let's forget exigent circumstances for the moment.

I mean, if you're saying that what we want the police to assume that they must always have warrant, absent exigent circumstances, then why don't we just enact that as the rule?

That's what exclusionary rules are for.

Mr. Peek: --Well, I think that is the rule.

That is the rule.

With respect to standing, the decision is when the cops make a mistake as to the rule, if they violate the Fourth Amendment, which we do not concede that they did in this case, the issue then is whose rights were violated?

And in this case the state's contending that while the Bergstroms' rights, if that arrest was illegal, may have been violated, the respondent's rights were not, because all he could show was legitimately on the premises, and that this Court has expressly rejected that as a basis for legitimate expectation of privacy in the Rakas case, and I think subsequent cases have reaffirmed that holding.

I'd like to just briefly mention the exigent circumstances case.

It's the state's position that the entry was not illegal because respondent was armed... was dangerous, believed to be armed, and had been in continuous flight since the crime had been committed, and under those circumstances... the exigent circumstances... exception to the warrant requirement would apply.

The facts of this case are not unusual.

Felons sought by police frequently do not return to their homes but hide out briefly with a friend, or succession of friends to elude police.

Under the Minnesota Supreme Court's holding, wherever a felon hides out overnight is his home for Fourth Amendment purposes, as long as he has permission to be there.

To broaden Fourth Amendment protection to persons like respondent who have such a tenuous connection to a place is to severely hamper law enforcement without creating any meaningful privacy protection increase.

While felons deserve privacy protection in their homes, they should not be allowed to use the Fourth Amendment as a shield to escape apprehension wherever they flea.

Unknown Speaker: It doesn't hamper law enforcement, because as you've before, the police should not have gone in, right, on the assumption that there were no exigent--

Mr. Peek: We do not concede that the police should not have gone in.

Unknown Speaker: --No, but on the assumption that there were no exigent circumstances, you concede that the police should not have gone in, if there were no exigent circumstances.

Mr. Peek: That's correct.

Unknown Speaker: So whatever we say about this rule about who can assert the right of privacy here, it's not going to hamper law enforcement.

Mr. Peek: Sure it is, because defendant's... evidence taken out of defendant's... will not... his confession will be suppressed and his--

Unknown Speaker: Oh, okay.

That's it.

I see.

Mr. Peek: --He will not be allowed to... the state will not be able to prosecute him for crimes.

Clearly, the social cost of the exclusionary rule is such that we have to balance the law enforcement interest and the privacy interest.

When the privacy interests are so thin, as they are in this case, the balance must shift to law enforcement.

If I may reserve the remainder of my time for rebuttal?

Unknown Speaker: Very well, Ms. Peek.

Mr. Marzen?

Argument of Stephen J. Marzen

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

Exigent circumstances justified the entry of the Bergstroms' unit in order to search for Olson because Olson was a dangerous suspect who knew that he had been cornered by police.

In dealing with cornered felons, the police should be allowed to move in fast and in force, before the suspect is able to have time to think of dangerous countermeasures, such as evidence destruction--

Unknown Speaker: What's a cornered... what's a cornered felon?

Mr. Marzen: --For purposes of this case we have a very narrow definition, which is one who was actually tipped off, who knew that the police were on to him.

One could construe it a bit more broadly, as we would, and say that felons who the police can reasonably anticipate will discover that the police are on to them--

Unknown Speaker: Suppose the police come out with their sirens and their lights blaring, is he then cornered, because the police have let him know that they're there?

Mr. Marzen: --The next step in the inquiry, of course, as respondent argues, is that there was in fact no exigency here because it was manufactured by police.

There is an insinuation in that that it was improper, what the police did, in telephoning the Bergstroms' residence, in talking to Julie Bergstrom and in having Respondent Olson overhear that conversation.

In this case, there was no manufacturing of exigent circumstances, Justice Kennedy.

The homicide detective had every reason to call upstairs to the unit to confirm that Olson was in fact present.

Prior to that telephone call, the only information that he had that Olson was in fact upstairs was the uncorroborated tip from the occupant of the lower unit that said that Olson had returned.

That may well not have been sufficient probable cause to justify going out for a search warrant to search the Bergstroms' unit for Olson.

In any event, the homicide detective was certainly reasonable in not pushing the limits of probable cause and either trying to go in or get a search warrant on that basis.

The only alternative to calling upstairs, in fact, would have been to mount an impromptu stakeout to try to find out... to try to hold... preserve the status quo.

Unknown Speaker: Mr. Marzen, let me just be sure I understand one thing.

Assume they did not have probable cause at the time of the entry.

Would the exigent circumstance doctrine have defended... to justify the entry?

Mr. Marzen: No.

My understanding of exigent circumstances is that you need probable cause and the urgent need or emergency situation in order to make that--

Unknown Speaker: So it is your position there was probable cause at the time of the entry, but arguably not before the phone call?

Mr. Marzen: --Arguably not before the phone call, so that is why he needed to call up.

In fact, you could see that without any basis, other than someone saying that, by the way, in the apartment next door there's a dangerous felon, you wouldn't want the police, in the ordinary run of the situation, to go into homes on that basis.

In this case, there's arguably a little bit more, because the police had talked to the occupant of the lower unit before, and what she said was corroborated by what the telephone tipster said.

So there's arguably a little more corroboration there.

But I think the police... the homicide detective was... was justified in not pushing that probable cause to the limits.

If the detective had not called inside, he would have had to mount an impromptu stakeout.

That was not reasonable, because the detective could reasonably anticipate that Olson would have discovered it.

There were eight uniformed police officers in marked patrol cars outside the unit.

The odds were overwhelmingly likely that Olson, a fugitive from justice and on notice that the police were after him because he had just escaped from them the morning before, would have peeked outside and discovered the stakeout.

In that event, you would have... all the dangerous things would have happened of evidence taking, armed resistance... or evidence destruction, excuse me... or hostage taking, or armed resistance.

Nor should, I think the loan homicide detective on duty that Saturday and Sunday be faulted for failing' to seek an arrest warrant, because the police did not plan the arrest of Olson at any home.

Even if the police thought that Olson would return to the Bergstroms' unit for some reason, an arrest warrant would not have been sufficient to justify the intrusion on the Bergstroms' privacy.

They would have needed a search warrant to search for Olson under Steagald v. United States.

And again, there would not have been probable cause to obtain that warrant at least until the occupant of the lower unit had called detective... the homicide detective at the police station at 2:30 p.m., at which time, of course, it was too late to have the couple of hours it would have taken to get a search warrant, enter the Bergstroms' unit, and find Olson in that case.

Therefore, we submit that in this circumstance where the police reasonably believed that Respondent Olson was armed, that he was implicated in a violent crime... you know, felony murder, for which he was convicted... and knew that the police were within moments of surrounding him and getting him, that exigent circumstance justified the immediate entry.

Unknown Speaker: Mr. Marzen, do most jurisdictions today have provisions for getting search warrants by telephone?

Mr. Marzen: Yes, Justice O'Connor, they do, and Minnesota in fact has that availability.

Unknown Speaker: So why... why are you saying it inevitably would take hours to get the warrant?

Mr. Marzen: Well, Detective DeConcini actually testified, I believe it was on either 116 or 118 of the record, that even during the normal business hours of 8:00 to 4:00 it takes an hour or two to get a warrant.

In this case, I think there was only--

Unknown Speaker: Using the telephonic procedure?

Mr. Marzen: --He spoke generally.

There's no specific information in the suppression hearing transcript about specifically how long it would take to get a telephone warrant.

In this case, even if it was during normal business hours and they had the telephone warrant available, the only time there was was the time between the homicide detective at the station got the phone call from the occupant of the lower unit to the time that he... the police officers actually converged on the scene.

That was an extremely short amount of time, and no one, not even respondent, has contended that in that short time frame there would have been time to get a warrant by any means, including by telephone.

Even if exigent circumstances did not exist in this case, we would submit that the exclusionary rule should not be applied, because Olson, as an overnight guest in the Bergstroms' unit, did not have a legitimate expectation of privacy.

The legal standard for defining an expectation of privacy, in our view, should be principally determined by whether the defendant had a right to exclude.

Rather than revisit the reasons in our brief why we maintain that that is supported by history in the text of the Fourth Amendment, I would like to address the principal argument by respondent, which is that the right to exclude test is simply inadministerable.

In our view of this Court's cases, that would not be the case.

In fact, the Court already applies the right to exclude test, in... at least as we view it, in determining whether parties can consent to a search.

Consent, or a right to admit, is really just the corollary or converse of a right to exclude.

Put another way, consenting to a search is just another way of saying that a person has waived his or her legitimate expectation of privacy.

So that in adopting the government's submission, it would be... all the cases interpreting consent searches would apply to this case as well.

There is a whole body of case law.

The right to exclude test is also easier to apply even in consent doctrine in joint control situations.

Because no one has consented in a case like this one where police think that they have exigent circumstances to enter, everyone who could have consented to the search has a legitimate expectation of privacy.

Unknown Speaker: I... I am not sure that they are flip sides of the same coin.

I may have a right to admit without having a right to exclude, which is always the case where there is joint occupancy.

I have a right to admit... and let's assume I... I'm leasing an apartment jointly with a friend.

Mr. Marzen: Uh-huh.

Unknown Speaker: I have a right to admit my guests.

He has a right to admit his guests.

I don't have a right to exclude his guests, and he doesn't have a right to exclude mine.

Mr. Marzen: Well, in the absence of the other co-tenant or occupant you have a... you clearly have the right to admit and exclude.

In a joint control situation where... you would also have the right to admit his guests, too.

The only question that arises in the case law is if you are both present and one says that I want to admit person X and the other co-tenant says I want to exclude person X, then you get into a difficult situation of whose consent trumps another's but--

Unknown Speaker: So the right to admit does not... I mean, that's the point.

You're saying the right to admit is just the flip side of the right to exclude, and it isn't.

Mr. Marzen: --Well, if you... for just purposes of a thought experiment, eliminated the other persons there, they have a right to admit or exclude on their... I guess I don't fully understand the question in that you do have a right to admit and exclude.

It can be subject to or conditioned by rights of other people who use the property, but one doesn't have to get into those sticky things for purposes of determining a legitimate expectation of privacy.

Because no one has been asked to admit a certain person on the property, they all have a legitimate expectation of privacy for purposes of the Fourth Amendment.

Unknown Speaker: It seems to me your flip side argument suggests that we should analyze this as though he's the only person with an interest to be examined.

Mr. Marzen: Yes, and--

Unknown Speaker: And if that's true--

Mr. Marzen: --my answer to your question--

Unknown Speaker: --What's your answer to the question?

Mr. Marzen: --My answer to the question you gave my co-counsel is that Olson would not... if a stranger knocked at the door, Olson would not have had any right to admit that person and therefore would have had no right to exclude him or her either.

If a door-to-door salesman had dropped by, or a motor cycle gang, or whomever, he would not have been able to allow them in the house, no more than if you had a baby sitter, or a plumber, or anyone else working on your home, that you have given them some part of your right to admit and exclude people so that they can have other parties on the premises.

This is not to say that you may not have... as your agent you may have told your baby sitter or someone that you would expect the plumber to come by and, you know, they would be able to admit the person to that extent, but they do not have any of your rights that they are exercising.

If the Bergstroms had left Olson at their house while they went to church on Sunday morning, Olson would not have been allowed to let people in.

Thank you.

Unknown Speaker: Thank you, Mr. Marzen.

Mr. Bruder?

Argument of Glenn P. Bruder

Mr. Bruder: Mr. Chief Justice Rehnquist and may it please the Court:

Before beginning my argument today: I'd like to respond briefly to a question that was raised by Justice O'Connor with respect to the telephone search warrant.

The only testimony with respect to the time involved in obtaining a warrant I believe appears at page 130 of the transcript.

It is in response to my questioning and it is dealing with an arrest warrant.

There was never any testimony directly from Detective DeConcini with respect to the time necessary to obtain a search warrant.

That aside, the seminal issue before the Court today is whether an overnight guest can have a reasonable expectation of privacy sufficient to invoke the protection of the Fourth Amendment.

Respondent's position is that an overnight house guest can, and does, have a legitimate expectation of privacy which this society, through custom and practice, is prepared to honor.

Unknown Speaker: You refer to him as an overnight guest, Mr. Bruder.

Was he given a bed to sleep on?

Mr. Bruder: No, Your Honor.

The testimony is that he slept in the living room.

Whether he slept on the couch or the floor, I don't recall if the record indicates that.

Unknown Speaker: Well, was the living room a place where he, and he alone, had dominion, so to speak?

Mr. Bruder: I believe the living room was a common area.

I think there was some testimony that they had had common activities there the night before and that he and another house guest had stayed in the living room that particular night.

Unknown Speaker: This is not quite like the case, then, where one goes to someone's house to visit and they say, here's your room and here are your towels and so forth, and you're given at least a room over which you have some dominion?

Mr. Bruder: Well, in some ways, Your Honor, I think it's exactly like that.

It depends on the size of the house, and I don't think that we can qualify somebody's right to invoke the Fourth Amendment based on the size of the dwelling that he resides in.

From personal experience, I can tell you that the last time I had an overnight house guest, it was my former roommate from California and he slept in the living room because we don't have a spare room for him.

And I would suggest that the mere fact that he doesn't have a bedroom that they made available to him doesn't necessarily impact on his right to have an expectation of privacy in that dwelling that society is willing to honor.

Typically speaking, an overnight house guest is somewhat different from a mere transitory visitor.

An overnight house guest is treated as more akin to a member of the family.

He has a right to go throughout the common areas of the house, to go into the kitchen, to go into adjacent areas, areas that a mere transitory visitor might not normally be expected to stay at.

Unknown Speaker: Can you really generalize that much about an overnight house guest, that you have the run of the house?

I have certainly visited in people's homes where I didn't feel I had the run of the house.

I... haven't you had a similar experience?

Mr. Bruder: I hate to disagree with the Chief Justice of the United States, but no, Your Honor, I have not had that experience.

[Laughter]

Unknown Speaker: And you say you think that a common experience is much more like yours than like mine?

[Laughter]

Mr. Bruder: I would suggest, trying to get out of this as diplomatically as I can, Your Honor, I would suggest that common experience has to take in all gambits of society, large houses as well as small houses, and that there are certainly situations, and quite common circumstances in this country, where an overnight house guest may not have an area segregated to them, but nonetheless has, in essence, rights that are akin to members of the household and in those circumstances it's our position that that house guest has a reasonable expectation--

Unknown Speaker: Is this man truly an overnight house guest?

Didn't he have a whole extra suit of clothing there?

Mr. Bruder: --He did indeed, Your Honor.

He had an extra suit of clothing.

Unknown Speaker: Does the average overnight guest have an extra suit of clothing?

Mr. Bruder: I think it depends on the circumstances by which they arrive at the house.

Unknown Speaker: How many overnights did he stay?

Mr. Bruder: He stayed there one night.

He was there approximately a day and a half before his arrest, Your Honor.

Unknown Speaker: Well, he was a day-and-a-half nighter.

Mr. Bruder: He was a day and a half, Your Honor, and he did also testify at the pretrial suppression hearing that he had no other place to reside and he intended to stay there.

Unknown Speaker: xxx stayed there one night.

Mr. Bruder: I don't give up to... well, Your Honor, the fact is, unfortunately he was arrested before he could stay there more than one night--

[Laughter]

But there was testimony... there was testimony before the... at the suppression hearing that indicated that he intended to stay there for an indeterminate future.

Unfortunately, in the interim the police decided--

Unknown Speaker: Did his host indicate that he could have stayed longer?

Mr. Bruder: --Yes, Your Honor.

Both Mrs. Bergstrom and her daughter Julie, who had given him permission to stay at the house, indicated that as far as they were concerned he was welcome to stay for the indeterminate future.

Unknown Speaker: Well, you don't need to go that far.

Mr. Bruder: No, but my position is that one night gives him enough standing, so to speak, to come before this Court and avail himself of his Fourth Amendment privilege.

In challenging the Minnesota Supreme Court's decision, both the petitioner's counsel and the Solicitor General emphasize the fact that the respondent did not have a formal tenancy interest or an ownership interest in the duplex where he was arrested, and while those might certainly be factors, I don't believe that they're wholly determinative factors.

In Jones and Rakas and in Katz, this Court repeatedly rejected the notion that concepts of property law control an individual's right to assert a Fourth Amendment claim.

Nonetheless, the Solicitor General in particular argues that an individual does not have sufficient right to assert a Fourth Amendment claim unless he has some type of property interest or quasi-property interest in the dwelling where he was arrested.

That particular model is not--

Unknown Speaker: It's not any Fourth Amendment claim, it's the particular Fourth Amendment claim that your home has been invaded.

Mr. Bruder: --I believe that the... what the Solicitor General is in essence arguing is that unless it's your home or your tenancy, you don't have a right to object to your arrest in that particular dwelling, and that particular model does not work very well based on the common sense living arrangements that we have in society.

We have to recognize the simple fact is that couples choose to cohabit, that individuals take on roommates to share rental tenancies, and that friends may briefly reside with one another for a day or longer.

And in each of those models, to some degree the person coming into the living situation has to subordinate his or her right to exclude others to that... to the desires of the people that they're with at the time, and under the Solicitor General's model, that would suggest that those individuals' privacy expectation should be swept aside.

I'd suggest that that... that is unsupported.

Our position is that where an individual is claiming Fourth Amendment protection and is part of a sufficiently small and intimate group sharing living quarters, that he or she has an expectation of privacy that should be recognized by this Court.

That particular expression will not extend Fourth Amendment protection beyond its reasonable scope.

For example, it's not going to suggest that everyone living in a homeless shelter has a right to invoke the cloak of the Fourth Amendment, because that is neither a small, a private nor an intimate setting.

Similarly, it will not necessarily extend it to persons who are casual or transitory guests who are there for a very brief duration, but it will preserve the respondent's cloak of Fourth Amendment protection.

Unknown Speaker: Why... why should it make any difference whether you're transient or not?

Mr. Bruder: Your Honor, I--

Unknown Speaker: Well, let's... let's assume you're... you're in the same... you know, the friend's house that you say you occasionally stay at.

You're just there for dinner.

Why... why should your expectation that you won't be burst in upon be any different?

Mr. Bruder: --I would welcome the Court holding that, but realistically I think that the difference is that when you're there for dinner, again, it deals with the freedom that you're given over the premises.

When you're an overnight house guest, if you wake up in the middle of the night, you go into the kitchen, you fix yourself a snack, you may go into the living room and watch TV if you're restless and can't sleep.

When you're a visitor for dinner, your use of the premises is basically restricted to the dining room, to the den if you have an after-dinner drink, in essence--

Unknown Speaker: What if you've been given the run of the place, if the person said mi casa es su casa, and really meant it?

Mr. Bruder: --That's correct, Your Honor.

Unknown Speaker: Then you'd be all right.

You'd have the whole run of it.

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

Unknown Speaker: xxx.

Mr. Bruder: I think that that would obviously be a very fact-specific circumstance, and I don't know if this Court, in laying down broader holdings, can necessarily articulate that in any sort of a general standard, but I certainly think that that would be, you know, a foreseeable result if that were the circumstance.

However, obviously we have to be concerned about the... you know, the... whether or not that is in fact something that's commonly found in the situation where you do have a transitory visitor, or something that's just derived solely for the purpose of invoking a Fourth Amendment claim for a person's self-interest.

Unknown Speaker: What was the relationship here?

I don't mean necessarily, you know, blood or marital relations, but factual relationship here between the defendant and the people who owned the house?

Mr. Bruder: They were friends.

Julie Bergstrom was a friend of Robert Olson, and Robert Olson was also acquainted with the mother, Louann Bergstrom.

Both of them gave him permission to stay there, and he intended to stay for the indeterminate future.

Contrary to the claims advanced by petitioner, exclusive, or even primary control of a given area, I believe has never been regarded as a prerequisite for the assertion of Fourth Amendment rights.

In particular, in Jones v. United States, this Court recognized that Jones had standing to contest the search even though his interest in the property was subordinate to that of his friend Evans, and although the petitioner argues mightily to the contrary, I believe this case amounts... by the prosecution amounts to a direct attack on the factual holding of Jones v. United States, as subsequently limited by Rakas, and only by expressly overturning Jones can this Court overrule the Minnesota Supreme Court.

The Minnesota Supreme Court at great length expressly relied on Jones v. United States in making its determination.

The factual circumstances of Jones are that Jones, on the day of the incident in question, admitted himself with a key, had a suit and a shirt at the apartment, that his home was elsewhere, that he paid nothing for the use of the apartment, and that he'd slept there for but a single night.

The only distinguishing factor between this case and Jones is that Jones had possession of a key.

And while that was certainly one of the factors examined by the Court in that decision, I don't think that it can be elevated to the sort of crucible level that the state would suggest.

For example, if possession of a key was wholly determinative, it could lead to bizarre and absurd results.

The cleaning woman who comes in and cleans my house every other week has... has a key to the premises, and since she's there during work hours, she has exclusive dominion and control over the premises, and under the model constructed by the Solicitor General and by the petitioner, my cleaning woman would presumably have a greater privacy expectation than would Mr. Olson at the home of his friends.

And I would suggest that this is an untenable result from this model, and that accordingly it should be rejected.

I think that consequently--

Unknown Speaker: Suppose we changed it and just added the one qualifier, that you have to have had a key which you were permitted to use generally and not for the one specific purpose that your cleaning woman is allowed to use it... that is, to come in and clean.

Mr. Bruder: --Your Honor, I think there are some--

Unknown Speaker: Surely, when you give somebody a key and say here, the apartment is yours, it means the apartment's yours.

Mr. Bruder: --Your Honor, I think there are several problems with that.

First of all, it's not going to give any guidance to the police officers because they're not going to know whether or not the individual involved has a key.

Second, it elevates--

Unknown Speaker: For the first... we've gone over it again and again.

It doesn't matter.

They shouldn't have gone in, anyway.

Mr. Bruder: --Right.

Unknown Speaker: Okay?

Mr. Bruder: Well, the second problem is that it to some degree supplants privacy expectations for a mechanistic concept, and it evaluates... it makes standing from Fourth Amendment purposes basically a luck of the draw situation.

If you happen to be let alone and have a key, you have standing, but if you don't, because your guest is... your host is showing you around town for the entire duration of your stay, you don't have standing, and that doesn't seem to be a particularly sensible result.

So I'd say that at least from those two measures, there are significant problems with giving the key that kind of primacy importance, and I'd add that because Mr. Olson, in contrast to Mr. Jones, indicated that he intended to stay at this particular dwelling for the indeterminate future, that any attempt to reverse the Minnesota Supreme Court's decision is implicitly an attack on the remaining validity of Jones v. United States.

Unknown Speaker: Mr. Bruder, the state also argues there were exigent circumstances.

Did you intend to address that issue?

Mr. Bruder: I will do so right now, Justice O'Connor.

Assuming that the Court affirms the respondent's right to challenge his warrantless arrest, that seizure under Payton and under Welsh is presumptively unlawful unless accompanied by exigent circumstances.

Generally, the type of urgent need that constitutes exigent circumstances is some sort of demonstrable danger to the public or the police which will be minimized by a warrantless arrest, and it's the state's burden to come forward with proof that there was an exigent circumstance here.

At the outset, let me point out that I'm not certain that this is a very good case for this Court to decide whether or not exigent circumstances existed, because the Solicitor General and the petitioner both agree that one of the prerequisites for the determination of an exigency is that there be probable cause at the time of the respondent's arrest.

In its decision, the Minnesota Supreme Court expressly decide... determined that they would not decide the probable cause issue but simply assume that probable cause existed for the purpose of answering his constitutional challenges and ultimately reversed his conviction.

Accordingly, if this Court wishes to look at exigent circumstances, I think that the appropriate resolution here would be to remand it... remand this decision back to the Minnesota Supreme Court with instructions to determine whether or not probable cause in fact existed.

Unknown Speaker: What is your position, Mr. Bruder?

Was there or was there not probable cause?

Mr. Bruder: My position is there was not probable cause, Your Honor.

Unknown Speaker: There was not.

So you don't claim they should have gotten a warrant earlier, then.

They couldn't have, obviously.

Mr. Bruder: My position is, Your Honor, there was not probable cause, and even assuming there was probable cause, as did the Minnesota Supreme Court, that there were no exigent circumstances that warranted my client's arrest.

Unknown Speaker: Are you saying we could decide the exigent circumstances question on the same basis that the Supreme Court of Minnesota did?

I.e., assume there was probable cause without deciding it, and then remand to the Supreme Court of Minnesota to see whether there was probable cause?

Mr. Bruder: I think that would be very difficult for this Court to do, because in... yes, Your Honor.

The answer to that question is yes.

You could assume for the purposes of this opinion that there was probable cause, but ultimately remand it back to the state court to determine whether in fact that was the case.

What I ask you to do, obviously, is to simply affirm the Minnesota Supreme Court.

Unknown Speaker: But we wouldn't... we wouldn't do that unless we decided that there were exigent circumstances.

Mr. Bruder: That's correct.

You'd have to make two decisions, Your Honor.

First, you'd have to decide that my client had standing, and second you'd have to decide that there were exigent circumstances.

Unknown Speaker: Was it ever suggested in this case, or ever... did the state ever... ever make the claim that this statement that the after arrest was not a fruit of the illegal arrest?

Mr. Bruder: Your Honor, that was... the state never made that claim.

It was argued at the trial court level, and I was furiously flipping through my trial court memorandum.

I relied on Dunaway v. New York, which is a 1979 decision of this Court, to suggest that if his arrest was unlawful that the statement that he made was the fruit of that arrest.

It was never contested by the state throughout the proceeding, so I submit that it's... it's not an issue that's before this Court.

Unknown Speaker: I take it you agree that a search warrant would have been necessary to effect this arrest?

An arrest warrant would not have sufficed, would it?

Mr. Bruder: I'm a little troubled by the question, because from the construct that I began this defense at, it was with the notion that Mr. Olson simply had no other place to reside, so that an arrest warrant would probably be the appropriate one, because this is as close as he had to a dwelling.

But upon reflection and upon reading the Solicitor General's brief, and upon rereading Steagald, I think perhaps a search warrant may have been the appropriate warrant for the police to procure.

But then it doesn't--

Unknown Speaker: I wonder if that's... is that really right?

What you're saying is that he has a reasonable expectation of privacy in the house.

Mr. Bruder: --That's correct, Your Honor.

Unknown Speaker: And... but the owner of a house, if you want to go arrest him in his house, all you need is an arrest warrant.

Mr. Bruder: That is... that is correct.

Unknown Speaker: So why wouldn't you... all you'd need is an arrest warrant, insofar as your client is concerned?

Mr. Bruder: I don't have any problem with the finding that all that would be needed in this case is an arrest warrant.

I began the defense with the assumption that all that was necessary was an arrest warrant.

However, even if a search warrant was necessary, that doesn't very well... that doesn't very much help the state's claims as far as exigent circumstances, because their entire position in this proceeding is that an arrest warrant is very difficult to get it and a search warrant is very easy to get.

So if all that was necessary was a search warrant, it would have been very easy for them to get one to arrest my client.

Certainly on the day before the police were able to obtain one in a relatively brief period of time.

As far as the state's argument is concerned that an arrest warrant was more difficult to obtain, they're very hard-pressed to come forward with any proof of that, Your Honor, because they made no effort to obtain one.

Indeed, the investigating detective testified that in his 20 years as a police officer, he'd never before tried to obtain an arrest warrant on a weekend.

So there is nothing before this Court that suggests that respondent's arrest would have been delayed, if the police would have simply taken the step of approaching a neutral and detached magistrate and requesting some type of warrant be issued.

More than that, I would suggest that it's basically conjectural to believe that the respondent was armed at... when the police made the decision to arrest him.

Certainly the crime involved was a grave one.

I'm not about to deny that.

But at the time he fled from the police, the respondent was observed to be unarmed, and even the police anonymous tipster made no allegation that the respondent was armed.

In essence, what we have here is a situation whereas the prosecution and the Solicitor General hope to define exigent circumstances, it will in effect strike away at the heart of Payton v. New York.

The Solicitor General comes in here and says that whenever a dangerous felon is known to be... knows that he's cornered by the police, the police have a right to go in and arrest him without making the presumption... without going before a judge and attempting to obtain a warrant.

But consider the implications of that.

In this case, the police called up the respondent and said, come out and surrender yourself to us, and when he refused to do that, they used that as an exigency to suggest, having done that, now that he knows we're here, we can come in and arrest him, rather than simply trying to go before a judge at the outset and obtaining a warrant to authorize to authorize the respondent's arrest.

If exigency is defined as the Solicitor General hopes to define it, there will be no situation... absolutely no situation... where an arrest warrant will be required for a felon, because in every instance, the prosecution will be able to establish an exigency simply based on a phone call demanding that the suspect surrender himself voluntarily.

And if he refuses to cooperate, then there's an exigency and they can go in and make an arrest.

That will in essence sweep away most of the protection offered by the Fourth Amendment, at least in an arrest context.

I would like to briefly conclude by mentioning something to the Court that occurred to me as I was rather nervously preparing for this argument yesterday.

It's almost exactly two years ago that I stood before a jury and that I told that jury that they had a young man's future in their live... in their hands.

Well, this Court's decision will still have an immediate impact on Rob Olson's future.

This case is now about something more than Rob Olson.

It's about us.

It's about what authority our Constitution gives to police officers.

It's about who is protected by the Fourth Amendment, and it's about the judiciary's role in supervising the police exercise of their authority.

I submit to this Court, the Fourth Amendment protects and cloaks me when I travel to California later this spring and stay with my friend and former roommate.

I suggest that it cloaks my friends and associates who have come to watch me make this argument and are staying with their friends in Virginia, and I contend that it protects petitioner's counsel when she visits the home of her own parents.

I suggest and suspect that each one of us has a privacy expectation in these living arrangements, and I suggest that it is one that our society is prepared to honor, and that I ask that this Court recognize in its decision.

Thank you.

Unknown Speaker: Thank you, Mr. Bruder.

Ms. Peek, you have two minutes remaining.

Rebuttal of Anne E. Peek

Mr. Peek: Your Honor, it's not the state's position that Mr. Bruder's privacy expectations will be eliminated by... when he stays with a friend.

Not all guests have no expectation of privacy.

It's important, however, to realize what the facts were in this case.

In answer to the Chief Justice's question, he slept on the floor.

There was no evidence that he'd been given the run of the place.

Although he said that he had permission to stay indefinitely, the Bergstroms testified that he asked if he could stay a couple of days, and Louann Bergstrom testified that he could stay until she asked him to leave.

He could have been evicted at any point.

That, I think, is different than the situation when you stay at a relative's home, or you stay at a friend's for a specific length of time.

In this case, furthermore, the Bergstroms were asked:

"Miss Bergstrom, counsel just said that Mr. Olson was living there. "

"Was he living there? "

Answer:

"No, he wasn't living there. "

"He stayed there one night. "

Moreover, it's true that police bear a heavy burden when attempting to demonstrate an urgent need for a warrantless home entry arrest... to arrest.

Such an urgent need is shown, however, when police must prevent an armed suspect, wanted for murder, from escaping into the community.

We ask that this Court reverse the holding of the Minnesota Supreme Court.

Chief Justice Rehnquist: Thank you, Ms. Peek.

The case is submitted.