Transcript

IN THE SUPREME COURT OF THE UNITED STATES

CITY OF WEST COVINA, Petitioner v. LAWRENCE PERKINS, ET AL.

No. 97-1230

November 3, 1998

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:07 a.m.

APPEARANCES:

DAVID D. LAWRENCE, ESQ., Pasadena, California; on behalf of the Petitioner.

JEFFREY S. SUTTON, ESQ., Columbus, Ohio; for Ohio, et al., as amici curiae, supporting the Petitioner.

PATRICK S. SMITH, ESQ., Los Angeles, California; on behalf of the Respondents.

PROCEEDINGS

10:07 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in No. 97-1230, the City of West Covina v. Lawrence Perkins.

Mr. Lawrence.

ORAL ARGUMENT OF DAVID D. LAWRENCE ON BEHALF OF THE PETITIONER

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

This case involves the valid service of a search warrant and murder investigation in which the West Covina Police Department lawfully seized 17 items of property which they believed were evidence in that investigation.

The residents of the home, the respondents in this case, were not at home when the home was searched. The officers left a notification of the search which provided a great deal of information. It stated that the home had been searched. It set forth the date of the search. It provided that the search warrant was issued pursuant to the authority of the Citrus Municipal Court. It identified the judge, Judge Oki, who had signed the search warrant. It identified two West Covina police officers and their telephone numbers who could be contacted if the owners of the property had inquiries, and it set forth a specific list of the 17 items of property which had been seized.

Under California law, these police officers did not have the discretion to release that property once it had been seized. Penal Code section 1536 required that they maintain custody of that property subject to an order of the court.

Shortly after seizure of this property, one of the respondents, Mr. Perkins, contacted the West Covina Police Department and advised that he was interested in obtaining return of some of that property. The record is undisputed that when he made that call and when he contacted those officers, that he was advised that he would need to get a court order to get that property back. The record is also undisputed that he was advised that he would have to contact Judge Oki in order to do so.

The record is also undisputed that at most the respondent, Mr. Perkins, went to the Citrus Municipal Court on one occasion, approximately 1 month after the seizure of the property. The record shows that he asked for Judge Oki. He was advised that Judge Oki was on vacation and might be back in a week, and he said that he attempted to find another judge who could release his property. He was told that there was no file in his name and that another judge could not do that.

The record is also undisputed that he took no further actions to obtain return of that property.

QUESTION: Because he didn't have the warrant number. And I was wondering why, since you -- as you stated, you provided notice that there had been the seizure, why it wouldn't be a good idea simply to have the warrant number on the notice that's left and then we would have avoided this great Federal case.

MR. LAWRENCE: Justice Ginsburg, I don't believe the record is clear that the warrant number or the absence of it really prevented the respondents from obtaining the return of the property.

QUESTION: But whether that's so or not, it would make it easier if you had the warrant number to look up.

MR. LAWRENCE: It might. It might, but the record is really bare as to what those procedures were at the municipal court in terms of locating a file or something of that nature.

And in fact, as we submitted, one of the postdeprivation remedies the Ninth Circuit found to be adequate in this case is the procedure of mandamus. Certainly a search warrant is not necessary for that. Mandamus is a proceeding that compels a public officer like a judge to do their duty. Penal Code section 1540 imposes upon judges who issue search warrants the obligation of returning property to those people if it has been taken without probable cause or is not the property identified in the warrant. A mandamus proceeding provided all the process that was due to the respondents in this case because they knew the name of the judge. They knew the courthouse. They knew the property that -- that --

QUESTION: Well, Mr. Lawrence, I -- that's all well and good and it may not violate the Constitution to do what the city did, but like Justice Ginsburg, I wonder why the city doesn't want to help its citizens by giving them the information that would be useful, like a correct warrant number. I mean, that's very easy to do, and the city's position seems very peculiar. Oh, go bring a mandamus action. Well, that takes legal help and all kinds of stuff. Now, why doesn't the city want to just supply some simple information?

MR. LAWRENCE: Your Honor, the record does not show that it is a policy of the city not to provide a search warrant number. The record in this case is unclear. Detective Ferrari in one part of the record said that he believed he did not give the warrant number. In another part of the record, he said that he did. In fact, Mr. Perkins in his deposition testified that he was given a number, but he felt that it was the wrong number. The record is really unclear as to what number was given to Mr. Perkins and whether he received it or not.

QUESTION: But if you have the number, as I understand it, it's the Federal practice they leave you a copy of the warrant so you have it, just a copy of the warrant, right there.

MR. LAWRENCE: That's correct. The --

QUESTION: All it takes is a piece of carbon paper and it seems so simple and would avoid snafus like this.

MR. LAWRENCE: But, Your Honor, the record also shows that the warrant number was not the only way to access that information at the courthouse. The record shows that the information was listed not only by the warrant number, but by the address where the search took place and by the date of the return. And the respondents had both of those pieces of information. So, maybe the warrant number would have assisted the respondents in getting their property back, but the record also shows that even after they were provided with that information as early as January of 1994, they did nothing to get their property back.

QUESTION: Do you think that the Ninth Circuit in this case erred in a principle of law that it stated or was its error simply an improper application of a correct principle of law?

MR. LAWRENCE: I believe it was an error of law.

QUESTION: And what was that error of law?

MR. LAWRENCE: The error of law is that notice is required in the postdeprivation Parratt-Hudson context. There is no authority for that proposition. The Ninth Circuit --

QUESTION: Well, is notice required that there has been a seizure?

MR. LAWRENCE: Pardon me?

QUESTION: Does the State have to give notice that a seizure has occurred?

MR. LAWRENCE: That's one of the issues in our brief. I believe that the Fourth Amendment, in order for the search to be reasonable, that there has to be notice of a search. And I think --

QUESTION: Well, I guess we could turn this into a Fourth Amendment case. It would seem to me that if the State has taken your property for any reason, in circumstances where you might not otherwise know -- know who did it, that the State, as a -- as a minimum requirement, ought to say that we took your property. We seized your bank account. We entered your house. We bulldozed your tree over.

MR. LAWRENCE: I agree that there are -- there are cases where a person might be unaware that a property right has been affected and that some sort of notice in that context might be appropriate. I submit that that is not the kind of notice that this Court has spoken of.

QUESTION: But even -- you know, even where you realize your property has been taken, if you come home and find your house has been ransacked, you still want to know who did it.

MR. LAWRENCE: Absolutely. I agree with that. And that --

QUESTION: Well, what if the city -- if it -- if we were in a predeprivation situation and the city wanted to take property of the -- the person, the citizen, now you agree that due process would require giving some notice to the person of the State's or the city's intention to take their property.

MR. LAWRENCE: Generally I would agree. It would depend on the circumstances. Due process is a flexible concept. But if it's not practicable, yes. Then the State does need to give notice and an opportunity to be heard before --

QUESTION: Well, at a minimum, the State --

QUESTION: Now -- and -- and -- if that's the case, then what changes in the postdeprivation context?

MR. LAWRENCE: In the postdeprivation context, the Mathews v. Eldridge balancing test has already taken place. In the search warrant context, the predeprivation process is not practicable. For one --

QUESTION: But maybe some notice is still required that the property was taken and who took it and when.

MR. LAWRENCE: And there was that notice provided in this case.

QUESTION: So, then the principle is there must be some notice which gives the citizen the basis for proceeding to claim the property that's been taken.

MR. LAWRENCE: I think --

QUESTION: Would you agree with that?

MR. LAWRENCE: I think in a case like our case where they weren't home, that it would be unreasonable to go into the home to search, to take items of property, and to leave --

QUESTION: Well, whether or not a search, it would be unreasonable to take it under any context, and then we're back in the Fourteenth Amendment not to search. You want to make this a search case. Your certiorari petition talks about due process, and that's what the -- the Ninth Circuit talked about. And I -- I think there's a substantial likelihood we're going to write the opinion -- or at least I would make my judgement -- based on the Due Process Clause.

MR. LAWRENCE: I understand.

QUESTION: And I want to know what the minimum principle is. The minimum principle is, it seems to me, you have to give notice sufficient to the citizen so that the citizen can ask for the return of the property. And if that's so, then the only error the Ninth Circuit made was, in your view, an over-application or an improper application of the principle.

MR. LAWRENCE: If this Court views that sort of notice, that factual notice, that a search has taken place and that the property has been seized as due process notice, then I agree, and I submit that the notice that was provided in this case is certainly adequate.

QUESTION: All right. Why do you draw the line there? You've conceded that it is reasonable for due process purposes to require at least an identification of the person who took the property so that the property owner doesn't have to start, in effect, searching the world for -- for the -- for the perpetrator.

Why isn't it equally sensible to narrow down things one step more and say the way to get it back is to apply to the judge for property seized under warrant number X? That prevents the citizen from having to do what this one does and that was perhaps not very efficiently, but basically sort of go from pillar to post and saying go to the judge. You go to the judge. Somebody says, well, the judge isn't there and you can't get it back this way. Nobody ever seems, until sort of the final act here, to tell him just how to -- how to do it.

Why not then -- going back to my question, why not then say fairness requires for due process purposes not only an identification of the perpetrator, but at least this simple bit of information which would make it clerically easy to do what you have a right to do?

MR. LAWRENCE: Because, Justice Souter, that -- that analysis looks at the facts of the case in a post hoc basis. In this case we know -- or at least we assumed that the owner of the property was Mr. Perkins, but when the search occurs, like in this case, the officers don't know who owns that property. They don't know --

QUESTION: What difference does -- does that make? They can't -- they can't give notice to someone who is unidentified to them, but they can give notice, as you have conceded it is -- it is fundamentally reasonable for them to do, to the person from whose premises the property is taken. If therefore that is a sensible due process result, why not take it a baby step further and say, if you want to get it back, use this number and ask X?

MR. LAWRENCE: Well, if -- if you're talking about simply providing a telephone number to call somebody --

QUESTION: I was talking about the warrant number which Justice Ginsburg and Justice O'Connor spoke of.

MR. LAWRENCE: The reason is that there are a variety of methods for getting that property back, and whether one can get it back in the method that one follows depends on --

QUESTION: Yes, but it's up to you, it seems to me. It's up to the government to decide what the method for getting the property back is. Once you've decided what that method is, go to the judge, go to the police department, go somewhere else -- that's your -- that's your choice, but once you've decided it, why don't you give the -- why isn't it reasonable to expect you to give the information that will allow the person to take an efficient first step as opposed to running the risk of getting this kind of runaround?

MR. LAWRENCE: For example, if there is a prosecution, there is a Penal Code section 1538.5, and if the Court looked at that, it is a tremendously lengthy statute and whether one can get the property back --

QUESTION: Mr. Lawrence, may I ask if you agree with the proposition that appears in the brief filed by 30 States? And it says, upon seizing respondent's property in the course of a criminal investigation, due process required the city to provide notice reasonably calculated to inform the residents where the property was and how to get it back. Would you say -- would you agree that that is the proposition of law and the question in this case is how to apply it, or do you disagree?

MR. LAWRENCE: I disagree. On the portion of how to get it back, that is legal advice that this Court has never required. This Court --

QUESTION: Well, it depends on what you mean by notice, doesn't it? I mean, you've -- if the way to get it back is mandamus and you have statutes which give notice to the entire public at large, you're given notice of how to get it back, haven't you?

MR. LAWRENCE: The public statute provides for notice, yes.

QUESTION: The public statute provides the notice.

Does the State have any obligation to provide a means of getting it back short of suing the State for it?

MR. LAWRENCE: I don't believe it does.

QUESTION: So -- so, what we're arguing about is whether the State has to leave a note that says, sue me --

MR. LAWRENCE: Exactly.

QUESTION: -- instead of having public statutes that provide for mandamus actions.

MR. LAWRENCE: A suit that says, sue me and here's how to do it.

QUESTION: Well, I take it that would be fairly difficult because there were several -- there was not just one remedy under California law, but there were several different avenues that could have been preferred. So, it wasn't just a question of you could pick out one sentence and say -- if you -- you're certainly not going to decide to choose yourself among the remedies that the State has provided.

MR. LAWRENCE: That's correct, Your Honor. There were a variety of remedies that these respondents could have used, and there were a variety of other remedies that persons in situations slightly different than those in which the respondents were in --

QUESTION: Mr. Lawrence, can I ask? Because I think when one responds to a lot of different questions from the Court, you sometimes take positions that are not entirely consistent with one another.

At one time I thought you had conceded to the Chief Justice the Constitution did require some notice, but that this notice was adequate, and other times you seem to be saying the Constitution does not require any notice. Which is your position?

MR. LAWRENCE: What I'm saying is that the Fourteenth Amendment Due Process Clause does not provide a requirement of notice in this postdeprivation context.

QUESTION: So, your position is no notice is required by the Constitution.

MR. LAWRENCE: Not -- not by the Fourteenth Amendment --

QUESTION: Well, by -- excuse me. Could I just finish? Or by the Fourth Amendment? Is there any constitutional requirement of any notice in your view?

MR. LAWRENCE: I believe the Fourth Amendment, in the context of a surreptitious search, requires that some sort of notice be provided, and that would -- that makes the -- the seizure and the search reasonable.

QUESTION: Can we be more precise? Are we talking about notice of the taking of the property or notice of how to get the property back?

MR. LAWRENCE: Notice --

QUESTION: Are we talking about both?

MR. LAWRENCE: Notice that the search has been taken and what has been taken.

QUESTION: That was my question to you. Notice as to who had taken property in the home of an absent property owner.

MR. LAWRENCE: Right, and I think -- I think it -- it is reasonable under the Fourth Amendment for the police to at least advise the absent homeowner that they have been there, searched --

QUESTION: Reasonable or required? Reasonable or required?

MR. LAWRENCE: I believe it's required --

QUESTION: Because I think you -- you answered me before that it would be reasonable to provide the warrant notice, but not --

MR. LAWRENCE: There are situations in which it would not be required because there are things such as sneak and peak warrants. So, I cannot say in all cases that the Fourth Amendment requires that notice.

QUESTION: Well, give the devil its due here. You -- you concede that it would be unreasonable not to let somebody know that the State has taken his property, and therefore it would be an unreasonable search and seizure and would violate the First Amendment.

MR. LAWRENCE: The Fourth Amendment, yes, Your Honor.

QUESTION: Fourth Amendment.

MR. LAWRENCE: Correct.

QUESTION: If you did not let them know.

MR. LAWRENCE: Yes.

QUESTION: And the reason for drawing the line between that Fourth Amendment position and the due process position that you take I assume is this, but correct me if I'm wrong. It's reasonable under the Fourth Amendment -- it is a requirement of reasonableness under the Fourth Amendment to identify the perpetrator, otherwise the -- the individual has no idea where to look, whereas it is not a requirement of reasonability to reveal the process necessary to get it back because anyone who has been deprived of property and knows the State deprived him of it can look up the law and find out how to do it. Is that the reason you draw the line?

MR. LAWRENCE: Yes, Justice Souter, I agree with that.

I'd like to reserve the remainder of my time for rebuttal.

QUESTION: Very well, Mr. Lawrence.

Mr. Sutton, we'll hear from you.

ORAL ARGUMENT OF JEFFREY S. SUTTON AS AMICI CURIAE, SUPPORTING THE PETITIONER

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

I'd -- like to ask -- answer the hardest question first raised by Justice O'Connor and Justice Souter and Justice Ginsburg. Why not just do it? Why not just put the darned search warrant number on the search? It would have solved their problems.

Well, first of all, that's not an answer that would solve the problems throughout this country in every city, county, and State. Ohio is a good example. They don't even know the search warrant number at the time they do the search. The reason is they figure out the search warrant when they come back and file the return of service.

Secondly, it wouldn't even have made a difference in this case. The problem is --

QUESTION: Excuse me. Don't the officers have to have a search warrant in order to make the search?

MR. SUTTON: Absolutely, Your Honor, and I hope I didn't misspeak. What I'm saying is that the search warrant number was the missing piece of information here, and I'm saying in many --

QUESTION: In order to have the search warrant, wouldn't it be apparent on the face of it what the number is?

MR. SUTTON: No, that's what I'm saying. Many States, Ohio being one, don't even have a search warrant number at the time of the search.

QUESTION: Yes, but it would be easy to prepare forms that have numbers on them. That can't be the that can't be a very significant due process fact.

QUESTION: Well, the point, Justice Souter -- and I want to answer your question, the suggestion, why not just let the city figure out a procedure and then align all of its notice with that procedure so you know every single item in it. And the point I would like to make is that in a criminal investigation, here a murder investigation, it's not that easy. In order to do it correctly, you need several pages of forms to spell out each of the different rights for each of the different types of people searched and the different types of remedies they might have.

For example, there's a very -- very big difference as to whether an indictment has been charged. The City of West Covina, the record shows in this case, tried itself to get the property back, filed a 1540 motion, went to the wrong court. They went to Judge Oki. Why was that the wrong court? By then an indictment had been filed, a murder charge against Mr. Marsh. They had to refile it again in the California Superior Court which has jurisdiction --

QUESTION: Mr. Sutton, you're making this seem so terribly complex, and I was thinking, well, it isn't -- whether constitutionally required, it's standard operating procedure for agencies, say, Federal agencies, to have appeal instructions. So, you lost and they give you a little statement, about five lines, that tells you if you want to appeal this, this is what you do. And that -- that is done routinely without having these horrendous complications. So, I -- I -- you could make it so, but it doesn't have to be that way.

MR. SUTTON: Justice Ginsburg, I would submit that the process and the policy that is under attack here would have worked fine, but in this case the problem that West Covina had and the Perkins had was not the policy. The problem was misadvice by employees of the West Covina municipal court and the police department. No policy is going to anticipate every blunder by a city employee in every city and county and State in this country. The policy would have worked fine --

QUESTION: What do you think is the -- is the basic applicable rule here, and is it under the Fourth or the Fourteenth Amendment?

MR. SUTTON: If I could answer the second question first. I would submit it is under the Fourteenth Amendment due process, and one hypothetical I think proves it.

If you look at the facts of Parratt, you've got a prisoner. Fourth Amendment rights don't always apply in the prison setting. Let's assume it doesn't apply. Let's say the prison warden comes into the individual's -- the chambers, takes something for some legitimate reason, doesn't leave any notice as to what has been done. That inmate has no Fourth Amendment right, let's assume for the purposes of this hypothetical, but yet the State would have a burden to let the individual know they'd taken something.

And that's why I think it really does have to be procedural due process. It may be both. As Sodall indicates, that they're not always mutually exclusive.

QUESTION: All right. So, under the Fourteenth Amendment, what is the base principle?

MR. SUTTON: The principle is this, Your Honor. One, you have got to give notice under the Due Process Clause of the fact of injury, and here there was actual notice of the fact of injury. That's exactly what the search warrant notice told them.

At that point in time, we've got two relevant traditions that I think inform the answer to this case.

The first tradition. Since 1868 --

QUESTION: No requirement as to who obtained it?

MR. SUTTON: Oh, I'm sorry. I -- I spoke too quickly, Your Honor. You're right.

QUESTION: I still would like to know what the basic principle is, like Justice Kennedy.

MR. SUTTON: The -- the basic principle is that you've got to tell them the fact of the search, what was taken, and who took it. I would submit West Covina went further here by giving information about courts and all the detectives. I would say at a bare minimum, the rule is you need to let them know there's been a deprivation, who was responsible, and I think the inventory does have to identify each piece of property taken. At that point I would submit there's inquiry notice, which would trust every citizen in this country to figure out for themselves as to what rights or remedies they may have.

QUESTION: Well, what if there were some procedural requirement of the city for return of property that is not generally known because it isn't a matter of public law? The city requires some little requirement for somebody to get the property back, but you -- you wouldn't know it by looking at the law.

MR. SUTTON: Your Honor, that's --

QUESTION: Do they have to include that item?

MR. SUTTON: That's Memphis Light, and yes, you would be under that burden. Memphis Light was a great example of that point where the internal dispute resolution procedure provided by the utility was only known by the utility, not the public or not the customers of the utility. That's like the Roman emperor that printed the laws in such fine type and so high on the wall that no one could figure them out. There you would have to give notice.

QUESTION: Well, is the warrant number in that category, do you think, here?

MR. SUTTON: No, Your Honor, because that's not all you need. You also need to know the property address which surely the residents, the Perkinses, knew. It was their property.

I would submit all you needed in this case was a written motion filed at the court.

And that goes to another problem with this case fundamentally, and that's not the notice. It's the type of procedure required in order to get the property back. California law required a court order. It makes sense to require a court order. We want to make sure that the property gets back to its rightful owners, and we want to make sure that a legitimate criminal investigation is not interrupted. It makes good sense to give an awful lot of process in that setting, and I think that -- that justifies this.

It also seems paradoxical in the 1990's to abandon a long tradition in this country that when people know they have been injured, they've got the good sense to figure out what their rights and remedies are. Rich or poor, meek or brazen, smart or not so smart, we Americans are finding ways to get to the courthouse and certainly doing it in the 1990's in droves.

QUESTION: Do you think, Mr. Sutton, that it's just surplusage or worse, pampering, or -- to have these standard notices that tell people what is the next step in a procedure if they lose at one stage? That's what it -- that's what your argument sounds like.

MR. SUTTON: Well, Your Honor, I'm not here to say that if it takes too much work, the government doesn't to do it. I'll be fired the next day if I ever made that statement in public. That's not the point. I think the question is what the Constitution requires. I -- I think democracy requires some leap of faith here and --

QUESTION: I know we have to separate those two things, but it sounded from your argument like you were going way beyond that. You were talking about good citizens should read the statute books and therefore shouldn't be pampered, indulged by telling them what their appeal rights are.

MR. SUTTON: Well, West Covina is certainly entitled to do that. I just -- I think what this Court's cases suggest is that it's condescending to require it. There -- there -- we -- I don't think we need to make the assumption that the Perkinses can't figure out what their legal rights and remedies are. They knew they had been injured. It doesn't take intelligence or money to get a remedy. It just takes an interest in self-protection, and if someone doesn't have that, I think the rule of due process I propose is going to be the least of their worries.

QUESTION: Of course, it didn't work out in this case.

MR. SUTTON: It didn't work out in this case, and Justice Stevens, the reason it didn't work out in this case was the alleged misfeasance and negligence of certain court employees and the bad luck that Judge Oki happened to be on vacation the day they went down to the courthouse. But I would submit each time a judge takes a vacation, each time an employee gives poor advice -- and poor advice was given here -- that doesn't state a due process claim and certainly doesn't state a 1983 claim.

That strikes me as the heart of this matter, and I don't think there's any policy for Monell purposes that a city, State, or county could put together that would anticipate each of the problems that led to the Perkinses' plight.

And I think the tradition here is relevant. I mean, we've been having searches and seizures since long before 1868. There's no custom nor any statute that I'm aware of from then to the present, at least prior to this decision, in which a city, county, or State has required the police not only to inform them of the fact of the seizure, but them to inform them of their rights, for example, a right under the Fourth Amendment or a right to get the property back.

QUESTION: You're not retreating in any way, or are you, from this brief that you signed that -- that says that there are two things required and one is that notice and the other -- a notice reasonably calculated to apprise the residents, one, where the property was and, two, whom. to contact about its return? You're not --

MR. SUTTON: I'm not because that's what -- that happened here. I mean, if -- it's true --

QUESTION: But that is the minimum constitutional requirement.

MR. SUTTON: Absolutely, absolutely. And that was --

QUESTION: Why -- why do you -- why do you concede that the notice of the person whom to contact is required? I mean, if -- if you give them notice that the State has taken their property on the reasoning that you were espousing a few moments ago, why isn't it enough to say the Perkins as good Americans should be able to figure out how to get it back?

MR. SUTTON: Well, I may not have spoke as clearly as I should have, and I think I made the same mistake in responding to a question by Justice O'Connor. But the question is you've got to -- you've got to make sure that the notice is enough to let them know the fact of the property seizure and who did it. If you know who did it, you know how to get -- get it back.

Thank you.

QUESTION: Thank you, Mr. Sutton.

Mr. Smith, we'll hear from you.

ORAL ARGUMENT OF PATRICK S. SMITH ON BEHALF OF THE RESPONDENTS

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

With regard to this fundamental question, what is the proper standard by which this Court should judge this case, I think it's important to understand two things. The first is, is that in this case the search warrant number was an absolute essential piece of information that the Perkins family needed in order to get their property back. That is the first requirement that they needed in order to access what is an otherwise State remedy.

QUESTION: Well, now, just a minute. You -- you make that assertion. However, the trial court found I believe that there is no evidence either way about whether one must have the warrant number in order to obtain a court order releasing seized property.

MR. SMITH: I believe --

QUESTION: Now, the court specifically made that finding.

MR. SMITH: I don't believe that the court was making a finding there, Your Honor. I believe what the court was doing at that point was indicating that the statutes in question, 1536, 1540, did not indicate that a search warrant number was needed in this case. However, the record is clear that Mr. Perkins went to the courthouse in an attempt to get the property back. He was told that he needed some identifying information in order to get the property back. He went back to the detective to get that information. They gave him maybe misinformation, but he couldn't get that essential information.

QUESTION: Well, the trial court said that Perkins was given all the information he needed to submit an informal request to the court for the return of his property, and that having the address of where the property was taken would have done it. Now, that was the finding of the court.

MR. SMITH: Your Honor, Justice O'Connor, I respectfully submit to the court that the record does not reveal that, and the record reveals that Mr. Perkins went to the courthouse to get the property, that he couldn't get the property back, that the clerk would not --

QUESTION: Are you saying the district court's finding was wrong?

MR. SMITH: I don't believe, Your Honor, that that was a finding. I believe that -- I believe that what we have here is a circumstance where the district court has indicated that it doesn't appear that he needed the search warrant number. However, I don't believe that that is a finding that is set in -- in such a way that it is binding on this Court, number one, because I don't believe it's a finding. I think it's a reference.

QUESTION: Why shouldn't we accept it whether it's binding on us or not? There's -- certainly a district judge is what we might call a neutral arbitrator rather than either of the parties to the case.

MR. SMITH: Because the record, Your Honor, that is before this Court clearly indicates that what we have in this case is -- is a family that went down, was -- was thwarted on two occasions --

QUESTION: The family all went -- are you suggesting the family all went together?

MR. SMITH: Mr. and Mrs. Perkins went on one occasion, and Mr. Perkins and his daughter on another occasion. That's correct.

QUESTION: I just can't believe that the California courts would say no ticket, no laundry.

(Laughter.)

MR. SMITH: Well --

QUESTION: They -- they -- they would -- there are procedures where if the man has lost the search warrant, if he doesn't know the number, the court is going to give it back to him.

MR. SMITH: In order to --

QUESTION: Everybody knows that.

MR. SMITH: Yes. In order to answer that question, Justice Kennedy, I think what we need to look at here is the notice that was provided. The note that was left at the residence merely gave the identity of the officers who served the warrant, who got -- procured the warrant, and the court who signed it.

Then the policy of the City of West Covina at that point was to leave it up to the discretion of the police officer to decide what information to give to Mr. Perkins.

QUESTION: Well, of course, in many cases you can't get the property back.

MR. SMITH: Well --

QUESTION: This vicious little doctrine of custodia legis means the police can hold onto it for years, if they need it.

MR. SMITH: Well, that's correct, but in this case what we have is everybody admits that it was the Perkinses' property, that it should be returned to them. And consequently, the issue is not whether the Perkinses would get their property back but whether they can access the otherwise adequate State remedy.

QUESTION: What if they left the wrong -- the wrong warrant number? You wouldn't be here. You'd say, well --

MR. SMITH: No, I wouldn't be here.

QUESTION: -- it was a good try.

MR. SMITH: Justice --

QUESTION: At least they tried to give proper notice and just made a mistake.

MR. SMITH: Right. But there's two answers to that question, Justice Scalia, because Mr. Sutton indicated that this was a case where they got wrong information. I don't agree with that. If in fact the police officers had a policy or the -- West Covina had a policy of providing the search warrant number, which they clearly didn't -- it was to leave it to the discretion --

QUESTION: If they did and gave the wrong number --

MR. SMITH: Then --

QUESTION: -- that would be okay.

MR. SMITH: That would be okay because there was a procedure in place.

QUESTION: And -- but isn't there a procedure in place here? They -- they went down to the -- to the police station and were given the wrong number at the police station instead of being given the wrong number at their house when the -- when the seizure was taken.

MR. SMITH: Well --

QUESTION: Does that make a constitutional difference?

MR. SMITH: What makes the constitutional difference, Justice Scalia, is that the City of West Covina did -- had a policy of leaving it up to the discretion of the police officer. The police officer doesn't remember. At one point he says, I may have gave -- given the number; at another point, he didn't.

QUESTION: But so what? What sent this case awry was that when they went down to the police station, they were given the wrong number.

MR. SMITH: No.

QUESTION: Was their policy to give -- was there a policy to give people the wrong number when they went to the police station? Then I could understand how you might have some problem. But it seems to me your case boils down to, I insist upon being given the wrong number at the time the property is taken rather than being given the wrong number when I go to the police station.

MR. SMITH: Your Honor, what the record reveals I think is that the policy of the City of West Covina was, one, to leave it to the discretion of the police officers to give them what information they think the person needed.

The second thing was, was that it's clear from the record that detective who gave him that information at one point indicated I didn't give them the search warrant number. At another point he indicates I may have given it. So, it's clear that the policy is to leave it to the discretion of the police officer and that --

QUESTION: Mr. Smith, just to narrow this controversy, you pointed twice in your brief to the Federal rule 41(d) as a model. That being the case, then you must also agree that the Ninth Circuit went too far.

MR. SMITH: Well --

QUESTION: The Ninth Circuit went considerably beyond rule 41(d) in what it required.

MR. SMITH: What the Ninth Circuit -- I will submit that that is certainly something that this Court could hold obviously, but what I will tell you, Justice Ginburg -- Ginsburg, is that what the Ninth Circuit did was they found a situation where the due process rights of the Perkinses was -- were violated because they weren't given the information under Mullane which was reasonably calculated to allow them for an opportunity for a hearing.

Now, what the Ninth Circuit then did is decide what standard should we apply to decide what notice is appropriate, the questions that were asked before. And the question then is what standard. The Ninth Circuit chose the Mathews v. Eldridge standard, and why did they? I think --

QUESTION: I'm not talking about the standard. I'm talking about the precise instructions that the Ninth Circuit gave. They said everything that you gave him on the form that was left and in addition -- and that was not talking about balancing this, that, or the other thing -- specific items that were supposed to be included. The Ninth Circuit said this notice is deficient because specific things have to be added to it, and I don't see any of those specific things in rule 41(d).

MR. SMITH: No, you don't see them in rule 41(d), Your Honor, but what you do see is you see that rule 41(d) requires that search warrant be left at the location. And if the Court would look at joint appendix 92 through 99, it's a copy of the search warrant, and the search warrant says at the bottom, it gives the information. It is now in the custody of the court. You need to seek the court who has the property.

The most difficult thing about this case -- and I believe that in this case is that maybe the Ninth Circuit, in requiring that information, maybe went too far, but what the court was doing was using the Mathews balancing test to determine what notice should be given. And I think that even if the Court believes that the Ninth Circuit went too far in giving all of this information, still the affirmance of the judgment in this case is appropriate because under Mullane, which everybody admits would be the standard, it was -- the information lacked the search warrant number.

QUESTION: I don't see why Mullane should be the standard here, Mr. Smith. It seems to me that Mullane is a predeprivation situation, what kind of notice you have to give prior to deprivation, not a postdeprivation at all.

MR. SMITH: The problem, Mr. --

QUESTION: Do you agree with that or not?

MR. SMITH: I agree it's a -- it's a --

QUESTION: Predeprivation.

MR. SMITH: -- predeprivation case, absolutely.

QUESTION: Then why -- why should it be applicable here?

MR. SMITH: Because we don't have, or at least this Court has not expounded, a principle that would be directly applicable to this case I believe, and I believe that under Mullane, it talks about notice. Memphis Light talked about notice, and if you can extrapolate the discussion by this Court on notice, it provides a standard of what is reasonably calculated to give adequate information to the person to access their otherwise adequate --

QUESTION: So, you say there really is no difference between predeprivation and postdeprivation.

MR. SMITH: No, there is, Your Honor. The difference -- however, with regard to notice, when you're dealing with a circumstance of what is the quintessential governmental intrusion into an unoccupied residence and seizing of property, I believe that this case where the government seizes it, clearly minimally they have to give notice that the property was seized or that -- that the police were in the house. I don't think anybody disagrees with that.

QUESTION: Well, let me just question that this -- with this example. Supposing you're parked in a no parking zone, and the police come along and haul your car away to the -- to some lot. Do they have to give you notice that they've done it?

MR. SMITH: No. You have --

QUESTION: What's the difference?

MR. SMITH: You have your driver's -- you have the license plate number of your car, Your Honor.

QUESTION: And you call the police and ask what happened to the car, and they'll tell you. Why isn't that the same remedy if somebody breaks into your house and a lot of stuff is rummaged around? Why don't you just call the police and they'll tell you they were the ones who did it?

MR. SMITH: Mr. Perkins did not have the license plate to his search warrant. He didn't have a search warrant number.

QUESTION: Well, but he had his address. He had his address. And is it the case that the clerk could have found the search warrant based on the home address?

MR. SMITH: No, it's not --

QUESTION: There's something in the record to the effect that that's the --

MR. SMITH: It is, Your Honor, that there is testimony by Detective Ferrari who indicates that there's a record or a registry at the court. However, what Detective -- what that evidence fails to mention, which is clear at joint appendix 76 and 77, is the declaration submitted by the plaintiffs that if -- if the search warrant was sealed, you couldn't get the information out of the registry. So, clearly there is perhaps a registry there. We don't dispute that there may be. However, when it's sealed, the evidence is overwhelming and clear I believe that you can't get the search warrant number even with your address, and that is the difficulty in this case.

QUESTION: Well, but the district court was very clear. It said Perkins -- the plaintiffs want the court simply to assume -- this is at E6 of the petition for the writ of certiorari. Plaintiffs want the court simply to assume that if Perkins had filed a request with the court, it would have been denied because he did not have the warrant number. There is no evidence to support that speculation.

MR. SMITH: What -- what I think the court is saying there, Justice Kennedy, is that there -- there -- that the Perkins perhaps could have filed a motion with the court. However, the evidence is clear I think from the record that the Perkins family did not have the adequate information. Now, what the Perkinses could have done with regard to filing a motion --

QUESTION: They knew where the court was. They went to the courthouse.

MR. SMITH: And they went to the courthouse on two occasions and the clerk would not allow them into the courthouse. Now, perhaps Mr. Perkins could have just filed the written motion with the court.

But the question then really becomes is what does due process or what does the notice require. Should Mr. Perkins have gone ahead and filed a writ of mandate in the court? I don't think so. The statute -- the legislative enactments by California specifically set a procedure for doing exactly what Mr. Perkins did.

QUESTION: Suppose Mr. Perkins was -- was driving his car and he was struck by a -- by a vehicle belonging to the City of West Covina. And he jumps out of the car and goes to the driver and he says, you've struck my car and -- and damaged my property. You owe me compensation. The driver says, you know, I'm -- I'm the City of West Covina. We're self-insurers. We don't have an insurance company. What-- what other information does the driver have to provide?

MR. SMITH: Well, I don't think the driver has --

QUESTION: Other than -- other than sue me.

MR. SMITH: I don't think the driver even has to tell him to sue me in that circumstance.

QUESTION: Well, why is that different?

MR. SMITH: That case is different for a couple reasons.

QUESTION: You know -- you know who's -- who's harmed you, who's taken your property. You know there's a system of law for -- for getting compensated. Does the city have to provide you with -- with legal advice?

MR. SMITH: I don't -- no.

QUESTION: That's what we're talking about.

MR. SMITH: The city does not.

But there's two distinctions, Justice Scalia. The first one is, is that Mr. Perkins can identify the problem that he is facing when he's hit by another car. He can get the license plate number, the description of the person or the car. He can't get the -- the number of the warrant. He can't get a description sufficient to allow the clerk or even Judge Oki or any judge on a writ of mandate to identify the property as being seized under which warrant so it can make a determination as to whether or not it was appropriately seized or not.

QUESTION: That -- that can all be determined in court just the way the extent of the damage to his vehicle --

MR. SMITH: Well --

QUESTION: -- and who did it can be determined in court. I don't see that there's any difference between the two cases.

MR. SMITH: Except that Mr. Perkins could not get into court. He didn't have the search warrant number.

QUESTION: But the district court said he didn't need it.

MR. SMITH: Well --

QUESTION: You keep asserting that, and yet several of us have pointed out from the bench the district court said that he had not proved that he needed it.

MR. SMITH: Well --

QUESTION: What do you mean he couldn't get into court? I cannot believe it. He could not bring a lawsuit?

MR. SMITH: Well, he could, Your Honor, get in --

QUESTION: You're thrown out of court because you don't have a number?

MR. SMITH: No. He couldn't get into court under the procedures enacted by the California legislature, 1536, 1540, a specific procedure designed for a person to get their property back. He goes to court. We need the number. The record is clear. He goes back to the detective. The detective tells him he's not sure if he told him a number or not. Perkins goes back. He still can't get into court.

QUESTION: Well, that's your denial of due process then. You can't -- you can't bring a suit to get your money back without a magic number. That's clearly a denial of due process. Now, if you had come here with that complaint, I'd be more sympathetic.

MR. SMITH: Well, what happens, though, is -- is the issue in this case really comes down to whether or not the policy of the City of West Covina -- I think that, if I can backtrack for a moment, why -- if the question is asked, why should the City of West Covina provide this information? Now, the question really is, is if you answer that they should, the City of West Covina doesn't want to admit it. The question is whether due process requires it. And if you had analyzed this case under the Fourteenth Amendment or the Fourth Amendment, they're both reasonableness standards, and so if the City of West Covina could provide that and they already leave a notice at the location and you do a balancing test that is it a burden on the City of West Covina to do that? No, it's not.

And in fact, the Los Angeles County Sheriff's Department in the motion for judicial notice of their document shows this Court that it in it shows -- it has a receipt for seized property and a notice for retrieving property. It shows a line for the search warrant number, for a URN file number by the police department. Then what has been characterized as legal advice is -- essentially comes to about 20 words, that they can --

QUESTION: What is your principle? That whenever the State takes property, it must -- it must do all those things that are reasonable to make it easy to get the property back.

MR. SMITH: No.

QUESTION: Is that the constitutional principle?

MR. SMITH: My principle is in the context of a search warrant, a seizure from someone's home, that when -- there has to be basic notice, and the basic notice has to be reasonably calculated to give the information to the Perkinses sufficient -- or anyone -- to get a reasonable access to an otherwise adequate State remedy. That would include not only the search warrant number, but who they -- they proceed before because the police --

QUESTION: An otherwise adequate State remedy could -- could be limited to suing in court. Is that right?

MR. SMITH: It could be, but the California legislature has not done that. They've enacted a specific procedure under 1536.

QUESTION: Yes, but if that -- is it your position that if that procedure has been frustrated by, for example, the failure to provide the warrant number, there is no other procedure under California law whereby this -- this property could have been recovered?

MR. SMITH: No. It -- certainly it's under a writ of mandate, and I don't dispute that a writ of mandate is another procedure which potentially could have been employed. The question is, however, if the State provides a number of remedies and there's a more specific remedy, a remedy for 1536 specifically to get your property back, and that's the avenue that the Perkins took, that's the universe of this case.

QUESTION: And that's a constitutional violation even though there is another way to get your property back.

MR. SMITH: If -- if the city has a policy of leaving it to the discretion of the officers to give what information is necessary to access that adequate State remedy, then yes. The essential thing is, Justice Scalia, is this, is that what amici and -- and the petitioner are arguing in this case is that there's this beautiful car that you have, this beautiful vehicle with which they could have gotten their property back, and there it is sitting in the driveway. The problem is, is they didn't give them the keys to engage the vehicle.

QUESTION: Well, but Mr. --

QUESTION: May I ask about those keys? Because maybe I'm misunderstanding the facts but I thought that on the side of the police, if they gave the warrant number, that would do. On the side of Mr. Perkins, if he had just said, here's my address, that that would have done. So, we're talking about just one further step on either side, and the key -- the door would have been unlocked.

MR. SMITH: That's correct, except he couldn't provide the address to the clerk because the warrant was sealed and he couldn't get that information.

QUESTION: But he knows his address.

MR. SMITH: He does.

QUESTION: And so, you're saying we -- there's something wrong about my understanding of this case, that if he had provided his address, then the warrant would have been found?

MR. SMITH: No. My position, Your Honor, is that even if he had provided the address, which I believe he did -- he provided the notice of search warrant that was left by the City of West Covina, that the clerk's office would not allow him because -- to get the search warrant number, the key to the vehicle, because the search warrant was sealed.

QUESTION: But you are arguing about the ineffectiveness of a procedure which you didn't invoke.

MR. SMITH: Except --

QUESTION: You did not go to the court. You went to the courthouse, but not to the court.

MR. SMITH: And --

QUESTION: And it seems to me that ends your case.

MR. SMITH: Except, Justice Kennedy, this, that what is it that a person has to do? And I'll admit that's what the district court found, but the question is, he goes to the court. What is a citizen to do? You can't go into the courtroom and stand up, Your Honor, I want my property back. You have to go through a procedure. He goes to the clerk's office. In order to get on calendar, in order to be heard in that court, in order to engage this vehicle, he needs to have this number to get the search warrant, and that's my position.

QUESTION: Mr. Smith, may I ask perhaps an unfair question, but supposing instead of trying to do all this himself, he'd come to you and said, they took my property. How long do you think it would have taken you to get the property back?

MR. SMITH: Well, I probably could not have gotten the property back.

QUESTION: Really?

MR. SMITH: Because the search warrant was sealed and you couldn't get the number.

Now, maybe we could have filed a writ of mandate with the court, but unfortunately, there's been no -- I would believe that there has been no indication that the court would deny him the return of the property.

QUESTION: You think he was just as effective in getting his property back as you would have been in the same circumstances.

MR. SMITH: I think the information that was relayed -- obviously, a lawyer would perhaps use a little more ingenuity. Maybe he would know somebody at the court. Maybe he could just file a lawsuit at the court or something to that effect. But that's not -- that doesn't -- the question is appropriate, but I don't think it helps in this case because of the fact that there was a procedure by California. And when he goes into court to implement this procedure, he's elected a procedure that the State of California has provided, but the City of West Covina's policy was inadequate to give him that information and he couldn't get into court.

QUESTION: No, but I thought you just conceded in the earlier part of your answer to Justice Stevens that if you had been doing it, I think the way you put it, I might have filed a writ of mandate. I might have filed -- I take it you mean by that -- a document with the court saying, look, I need a number in order to get my client's property back. They haven't given me the number. I presume you would have gotten some relief if you had filed that. And if that is so, why really isn't that the end of your case?

MR. SMITH: Because I don't believe I necessarily would have gotten the number.

QUESTION: Well, we don't know whether you would have gotten the number or not, but I think aren't we entitled to assume, in the absence of a demonstration to the contrary, that the court would have done something other than throw you out and say I'm not going to help you. Too bad.

MR. SMITH: Well, the information is in the record, is that the document was sealed, and the clerk's office, the declaration of the joint appendix, 76-77, is that you couldn't get the warrant number because the document was sealed.

Now --

QUESTION: Well, the document I presume -- and you correct me if I'm wrong -- is under the control of the court, isn't it?

MR. SMITH: Yes.

QUESTION: Okay. So, if you -- you admit that -- that there is a procedure whereby you could have gone -- you could have addressed the court with a pleading and said, I need this number that you have in order to get back property that they took from me that they're not entitled to keep. And in the absence of some demonstration that you would have been turned away arbitrarily, we have to assume, I think, that there is a process by which you could have gotten what you wanted, and ultimately you would have -- your client would have gotten the property back.

And if that is so, I don't understand what the premise would be for constructing a due process right to an alternative to that.

MR. SMITH: The question is, Your Honor, is does it require essentially -- and I don't mean to be facetious -- some herculean effort by a citizen to get the property back. Does the citizen have to invoke the services of a lawyer who could be creative in terms of getting that property back? Does the Due Process Clause require that? I don't believe the Due Process Clause requires that. In fact, I believe that what the Due Process Clause requires or the Fourth Amendment is information which would reasonably calculated to give the person --

QUESTION: Well, that's one -- that's one way of -- of stating the conclusion, but I would have thought that what you have to demonstrated to get the due process right that you claim is that it is fundamentally unfair for the State to take the property, telling you that it is they, the State, that have taken it, and then leave it to you to figure out what the procedure under State law is for its return. Is that fundamentally unfair?

MR. SMITH: No, I don't believe that that necessarily -- this Court does not have to find that as fundamentally unfair. What is fundamentally unfair is not giving him the information that is needed in order to access this remedy.

Now, the Ninth Circuit did find it's fundamentally unfair --

QUESTION: It's fundamentally unfair in a case in which there has been perhaps a -- a -- a negligent runaround, as occurred here. It's fundamentally unfair in your view to require the -- the property owner to address the court with a mandamus petition saying give me what I need to know in order to get the property back? That is fundamentally unfair?

MR. SMITH: I believe what is fundamentally unfair about it -- yes, Your Honor -- is that it is fundamentally unfair not to allow -- not to give the Perkinses the necessary information. What we have here is a policy by the City of West Covina to leave it to the discretion of the officer, and that is what's unfair. What needs to be -- what has to happen here is that the Court I think needs to indicate that the city -- that due process requires a policy where information is imparted to a person to allow him to access the remedy.

QUESTION: But we don't see any kind of abuse of that discretion, if it was that, because the -- the police officer did say the property is in -- in the court's custody, so you have to go there to get it. So, it wasn't any misleading by the police except with respect to this number.

MR. SMITH: That's correct, and the police was -- the police were right. He did have to go to court because if you got this note left at your residence, you would think you would have to go to the police department. So, I think it would be incumbent upon the city to tell them what court you have to go to. They did that, and I think that that's required.

The question is did they give them the information that was necessary to access the remedy. And I understand what Justice Kennedy is asking, but I don't believe that it is fundamental for the Due Process Clause to require the person, in order to not waive his rights, to get in and -- and talk actually to the judge in the courtroom.

QUESTION: Would we -- would it have been okay if they gave him the warrant number and it was the city's policy to give him the warrant number not at the time a warrant is left, but rather at the police station when he comes to the police station?

MR. SMITH: That would be fine, Your Honor.

QUESTION: That would be fine.

MR. SMITH: Because of the fact --

QUESTION: Well, but that was done here, only they gave him the wrong warrant number.

MR. SMITH: No. Well, that's a disputed -- that's an issue that isn't -- he says that -- that same detective who says he may have given them a number isn't sure he gave them the number. He indicated at one point I did not give them a number. At another point he says I may have.

QUESTION: But Mr. Perkins thought he got a number. And he thought he got a number and he said it was the wrong one.

MR. SMITH: He said he got a -- I think the word he used was a case number. He got some sort of a number from Ferrari, but went there and they said that was no number at all. What the problem is, is that it's an arbitrary -- it's a policy that leaves it to the discretion of the police officer. If there's a policy by the City of West Covina to leave -- not to leave it, but they have to give them that information, then I wouldn't be here because there would be a policy which implicates or somehow allows the person to go and access the otherwise adequate State remedy. That's not what happened here. What happened is they left it to the discretion of the police officer.

But I think even under a Fourth Amendment standard or a Fourteenth Amendment standard here, the policy of the City of West Covina is deficient, and it's deficient because, number one, if the Court looks at Mullane -- and I think the Court is looking for a standard on how to decide this case. We can't just stand here and say, well, if he had gotten the number, if he hadn't gotten the number, that's sufficient. The Court has given us a -- a formula by which to look at this case and judge what notice is required. That's I believe under -- under a Mullane type of standard, reasonableness.

And I think that the Mathews v. Eldridge balancing is appropriate. If you look at that --

QUESTION: If you have given us such a -- you know, examples often work more forcibly on the mind than precepts, and you have given us the example of 41(d). So, why are we talking nebulously about not using balancing and all that when we have a concrete example of what you say here's what does it, here's adequate notice?

MR. SMITH: I -- I agree that that's a concrete standard, that I believe that probably when the -- the enactors of Federal Rule of Criminal Procedure 41 probably went through what notice is required in order to adequately inform the person or give them the information to access the remedy. 41 --

QUESTION: And it's a very simple. It's a copy of the warrant.

MR. SMITH: Exactly. That's our position, that the City of West Covina should come into line with what the Federal Government does and what the rest of the country -- most of the country does, is leave a copy of the warrant at the location. If he had the copy of the warrant, we wouldn't be here today because it does have the search warrant number on it, and it has who to contact, who signed --

QUESTION: Yes, but some of these search warrants are sealed. Certainly the affidavits are. It may well have been that if this murder investigation is still underway, he's not entitled to the property back.

MR. SMITH: Well, in this case --

QUESTION: I mean, we don't know --

MR. SMITH: -- in this -- that may be the case, but I'm not asserting in this case, Justice Kennedy, that Mr. Perkins had to get his property back. He only needed to get into court in order to address the issue. In this case it's undisputed that it wasn't evidence of the crime and they were going to give it back to him, and I think that's what's critical.

But I think that this Court has indicated, albeit it in -- in -- in -- by Justice of the Court, by Justice O'Connor, and I believe also by Justice Souter, that the Mathews analysis is an analysis that can be used in this case. The burden on the city --

QUESTION: Thank you very much, Mr. Smith.

Mr. Lawrence, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF DAVID D. LAWRENCE ON BEHALF OF THE PETITIONER

MR. LAWRENCE: If I could make a couple of points.

One, my opposing counsel states that all of us agree that Mullane is the proper test here. We do not agree that Mullane is the proper test. Mullane is a predeprivation case. That's a test that's applied to determine whether or not notice is sufficient in the predeprivation context.

Further, in that case, the Court stated that notice is a necessary element of due process when there is a final adjudication, and the notice is to give the person whose property rights are at issue an opportunity to appear and to contest that hearing or to choose not to appear. That is not the case here because we did not have a final adjudication or a hearing that notice could be given up.

My opposing counsel states that they did not get the property back or they could not get the property because they did not get it, and the record shows that even after receiving the search warrant number and even after getting advice of counsel, myself, as to how to get it back, they did nothing to get it back. So, I submit that that's not a very good test to determine whether or not it was possible for counsel or the respondents to obtain the return of their property.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Lawrence.

The case is submitted.

(Whereupon, at 11:06 a.m., the case in the above-entitled matter was submitted.)