Warren E. Burger: We will hear arguments next in Washington v. Chrisman. Mr. Carpenter, I think you may begin whenever you are ready.
Ronald R. Carpenter: Mr. Chief Justice, and may it please the Court: The petitioner in this matter, the state, feels there are three principal issues which the petitioner feels necessary to discuss in detail. The first issue is whether or not exigent circumstances existed in this case that would have excused the officer of first procuring a search warrant prior to his entry into the dorm room and seizure of the marihuana seeds. Secondly, whether or not it was proper for the law enforcement officer to accompany the arrestee, Mr. Overdahl, to the dorm room when he asked to be allowed to return to that premises to secure ID from the premises. And thirdly, if this Court should determine that the officer acted in violation of the Fourth Amendment on the first two questions, whether or not this is an appropriate case for the Fourth Amendment exclusionary rule to be applied to. In other words, whether or not the Court should look at the good faith of the officer in this particular case and apply a good faith exception to the exclusionary rule.
Speaker: Is the basic predicate of your case that if an arresting officer has probable cause to make an arrest and does so, he may keep the arrested person at least in sight if not in hand from that point on?
Ronald R. Carpenter: That is correct, Mr. Chief Justice. Our approach is that in order to protect both the officer and protect other members of society, protect the arrestee himself and protect the evidence from being destroyed, it is nonsensical to suggest that the officer should allow the arrestee out of his immediate control and presence. And in order to that, if he wants to be a reasonable, polite, courteous officer, wants to do what this officer tried to do, try to conduct himself in a low key, professional manner particularly on a college campus, he needed to afford the arrestee the opportunity to return to his premises, and that's basically what we're saying.
Speaker: It was a return to the premises for the benefit of the arrested person.
Ronald R. Carpenter: That's correct, it was to expedite the release of the arrested person, Mr. Overdahl.
Speaker: From your point of view, from your position, the officer could have appropriately walked in the room and stayed within two or three feet of this man at all times. Is that your position?
Ronald R. Carpenter: That's correct.
Speaker: Wait a minute. If a man is arrest out on the street, you could carry him across town and go into his room?
Ronald R. Carpenter: No. I'm not saying that. Only if he requests to return to his premises.
Speaker: But the man didn't invite him, did he?
Ronald R. Carpenter: Well no, that's not really true. The officer asked for ID and the individual indicated, Mr. Overdahl indicated that he did not have ID. He asked the officer if he could return to the premises. The officer indicated well, in light of your custodial status I can't let you return to the premises unless I accompany you, and Mr. Overdahl said okay.
Speaker: Well, what else could he do?
Ronald R. Carpenter: Well, he could have said no, that's not okay. Take me down to the station house and book me, handcuff me.
Speaker: And gone to jail.
Ronald R. Carpenter: And gone to jail. The officer was trying to allow him the opportunity to--
Speaker: That was his choice. It was either let the officer go with him or go to jail.
Ronald R. Carpenter: --That's right.
Speaker: Mr. Carpenter, I gather the officer had wanted the ID, did he not, to find out his age, to use as evidence?
Ronald R. Carpenter: Well, that's part of the reason he wanted an ID, but you have to remember--
Speaker: Well, he wanted it for at least that much, didn't he, for that reason?
Ronald R. Carpenter: --Well, that's true.
Speaker: Did he give Miranda warnings?
Ronald R. Carpenter: No, he did not.
Speaker: Shouldn't he have?
Ronald R. Carpenter: No, I don't believe so.
Speaker: Why, if he was going to use this as evidence, wasn't he?
Ronald R. Carpenter: Well, there were three reasons.
Speaker: He was going to use it as evidence, wasn't he? That's why he wanted it.
Ronald R. Carpenter: Well, that may have been a collateral reason. But the principal reason he needed it, anytime you arrest an individual you have to ID that person.
Speaker: Well, if we think he should have been given Miranda warnings and he didn't have them... you agree he didn't... wouldn't that taint everything after that?
Ronald R. Carpenter: Well,--
Speaker: Well wouldn't it? Under our cases?
Ronald R. Carpenter: --Not necessarily, because--
Speaker: Under our cases, that he should have had them?
Ronald R. Carpenter: --Well, what would be Mr. Chrisman's standing to complain about Mr. Overdahl's violation of his Miranda rights? That would be my answer. Plus, the officer had a right to be out in that public hallway, regardless of whether or not he asked for his age. The dorm room and public hallway of Orton Hall was public area; it constitutes an unprotected area, he had a right to be there. And that's where he saw the principal observations before he went in under what we say was exigent circumstances.
Speaker: Mr. Carpenter, before you leave the point, I'm still a little uncertain. Why was the ID important?
Ronald R. Carpenter: You have to remember... and you can look at pages 7, 9 and 10 of the Joint Appendix and read through those pages, and you will see that the officer had three violations he was aware of. He was aware of a violation of being in possession of alcohol and in violation of a Washington statute, not being 21 years of age.
Speaker: Right, but he didn't need the ID to establish that because the young man had admitted he was 19.
Ronald R. Carpenter: At the elevator before they ascended to the 11th floor.
Speaker: Once he admitted it, then why did he need the ID?
Ronald R. Carpenter: Because he has two other violations.
Speaker: And what were they?
Ronald R. Carpenter: One was a violation of the Washington Administrative Code which prohibits from having alcohol on the campus--
Speaker: Well, he's on the campus; he didn't need an ID for that.
Ronald R. Carpenter: --And the third one would be he had an open container of alcohol, another criminal violation.
Speaker: He didn't ID for that either, did he?
Ronald R. Carpenter: Well, you need it... I would gently suggest that you need an ID anytime you arrest a person.
Speaker: Why? If I'm arrested out on the street somewhere, do I have to have an ID?
Ronald R. Carpenter: Well sooner or later, when you get booked in you are going to have to identify yourself, aren't you? Are we going to book him in as a John Doe and hold--
Speaker: He knew his name. Do you have to have an ID in writing in order to identify yourself?
Ronald R. Carpenter: --Well, in 1978 there were approximately 16,000 students on WSU campus.
Speaker: You're not suggesting that this man didn't know his own name, are you?
Ronald R. Carpenter: No, but I would suggest that it would be rather foolhardy for an officer to take his word as to what his name was. There are a lot of students on that campus. We see a lot of John Smith's.
Speaker: But didn't he intend to take him to the station?
Ronald R. Carpenter: Well, no, he was trying to allow him to be released.
Speaker: Does the record show that?
Ronald R. Carpenter: I believe it does.
Speaker: The man is a man that admits he's under 21, with a half a gallon of liquor.
Ronald R. Carpenter: That's right, a half a gallon of gin.
Speaker: And the policeman is going to let him go?
Ronald R. Carpenter: Well, he would issue--
Speaker: Yes or no.
Ronald R. Carpenter: --He would issue him a uniform citation--
Speaker: Is it your story that he was going to turn him loose?
Ronald R. Carpenter: --Sure, he would issue him a uniform citation for a minor violation and then he would have to appear in District Court.
Speaker: I thought you said a minute ago he had a choice of taking him to the room or jail.
Ronald R. Carpenter: That's right, if you don't furnish some ID, you're going to jail.
Speaker: Now you say he wasn't going to take him to jail; he was going to give him a slip of paper.
Ronald R. Carpenter: No, let me back up an explain.
Speaker: I hope so. [Laughter]
Ronald R. Carpenter: His choices are that if I can't resolve this with some adequate ID so I can identify you and issue you a uniform citation so you can appear in seven days in Whitman County District Court to answer the criminal charge of minor possession... it's not something that they routinely book people for--
Speaker: When he first encountered this young man, did he have any way of knowing whether the young man was, in fact, a student?
Ronald R. Carpenter: --No. Other than that he came out of Orton Hall, he appeared to be very young, appeared to be obviously under 21.
Speaker: There's a great many people of that age who might come out of that hall and have no connection with the university.
Ronald R. Carpenter: Sure. He has no idea. As you remember, Mr. Overdahl suggested that he be allowed to return without the officer, and I think it would be rather naive to think that a young man disappears... now maybe this young man would have come back, but I would suspect good police procedure would lead one to be a little cautious about letting a man on a campus with 16,000 disappear in the dorm. I doubt he'd ever come back. I mean, that's just my personal reaction. If I was a law enforcement officer I wouldn't let him out of my sight.
Speaker: Well, why didn't you give that answer to me when I asked you that question?
Ronald R. Carpenter: I thought I did, but I--
Speaker: Well, you didn't give it until you got it from the Chief Justice.
Ronald R. Carpenter: --I apologize.
Speaker: Well, I thought you gave it to him, you gave it very clearly in response to my question. Mr. Carpenter, when he got upstairs, did I understand you to say earlier that there were exigent circumstances which justified his entry into the room?
Ronald R. Carpenter: Right.
Speaker: And had there not been is the implication that he could not have entered the room?
Ronald R. Carpenter: Well, I--
Speaker: In the absence of exigent circumstances?
Ronald R. Carpenter: --I believe he could have entered on either one of the state's principal theories. Either as... you have to remember, he was only at the doorway 35 to 45 seconds.
Speaker: I know, but what I'm trying to get, Mr. Carpenter, do I understand your position to be that in the absence of exigent circumstances, he should not have entered the room?
Ronald R. Carpenter: No, that is not my position. I believe there are two ways he could have entered that room. One, to accompany the arrestee, and I argue in the brief that if it is not a simultaneous entry, it's a contemporaneous entry. I think it's... 35 seconds while he's standing there and then walks in. It seems to me that the fact that he paused at the door for 30 to 45 seconds is not a great deal of constitutional significance.
Speaker: And what are the exigent circumstances, assuming that there--
Ronald R. Carpenter: Okay. The state could argue that the exigent circumstances in this particular case are simply that if the officer had left, the tray of marihuana seeds which he observed approximately eight feet in the room from where he was standing would have I think clearly been gone when he came back. Or it's reasonable to assume that they would have been gone. There were two people in the room; they could have eaten them, they could have hidden them in body cavities, they could have thrown them out the window, and I won't speculate what the dispersion pattern from the 11th floor of marihuana seeds if you flip them out the window. But I think it's reasonable, as the trial court and the Court of Appeals both concluded, that it was not reasonable for the officer to leave that room to get warrant.
Speaker: --Now, incidentally, the officer had a radio, didn't he?
Ronald R. Carpenter: That is correct.
Speaker: And it was after he entered the room that he summoned help on the radio.
Ronald R. Carpenter: That is correct.
Speaker: Why do you suppose he didn't summon held while he was at the door where he could see everything?
Ronald R. Carpenter: Well, he could have summoned Lieutenant Kenny--
Speaker: He could see both the people, he could still see the seeds--
Ronald R. Carpenter: --Then we'd have two officers standing at the door if he can't enter.
Speaker: --What was the rationale used by the court below in this decision?
Ronald R. Carpenter: Which court? The Washington Supreme Court or the Court of Appeals or the trial court?
Speaker: I said the court below, the one immediately below is the Washington Supreme Court.
Ronald R. Carpenter: Oh, excuse me. Their rationale was one that we never... that there were not exigent circumstances and we didn't argue them, which is clearly erroneous because the record is replete from our trial memorandum that we argued exigent circumstances. The other was simply that New York vs. Payton and Reddy prohibited entry without a warrant.
Speaker: Would it be your position that if the office was accompanying this young man down the hall and he was headed from room B, which was another few steps, but he walked by room A and he glanced into the room and saw the very same things that he saw in this case; namely, whatever it was on that stand.
Ronald R. Carpenter: Everything from that point forward proceeds the same?
Speaker: And then he enters that room, saying these things are in plain view, I can enter this room and seize them because of exigent circumstances. Is that your position?
Ronald R. Carpenter: Well, you have to remember in this particular case--
Speaker: No, just take my facts.
Ronald R. Carpenter: --Well, are the facts the same? I mean, in this case Mr. Overdahl opened the door all the way.
Speaker: Well, the door is standing open and they are both walking by, add all of a sudden the officer sees what he saw in this case sitting on the stand. Would that authorize his entry into the room.
Ronald R. Carpenter: And he sees the occupant who responds to him?
Speaker: No, no occupant at all. He just sees on the stand what he sees here.
Ronald R. Carpenter: Well, there's a lot more here.
Speaker: Well, how about my question?
Ronald R. Carpenter: Okay, he walks by an open room and he sees the seeds.
Speaker: He sees those seeds standing there... he sees what he saw in this case. He doesn't really know they were seeds. He had to go over to find out.
Ronald R. Carpenter: Assuming no one associated with the room or otherwise sees the officer and knows he has seen something, no, there wouldn't be.
Speaker: It's just like if you were walking by a house and looked through the window and saw them.
Ronald R. Carpenter: That's right, you need a warrant.
Speaker: Exactly. [Laughter]
Ronald R. Carpenter: But here there is an appreciable distinction. Here, he looks in that room, sees the contraband in plain view or open view I guess is the terminology we use--
Speaker: Yes, and then what?
Ronald R. Carpenter: --He sees a nervous reaction of Mr. Chrisman, he sees Mr. Chrisman moving the box around to the medicine cabinet, and then when he sees the officer in uniform gets all nervous and moves it back.
Speaker: Well, if he saw the same thing through... if he was walking by on the street, he looked in the window and he saw what he saw and he saw a man in there looking nervous and was about to destroy them, could he go in?
Ronald R. Carpenter: Assuming that... are you assuming, Justice, that--
Speaker: I'm not assuming anything. I just tell you what he sees.
Ronald R. Carpenter: --Well, if it's apparent the man realizes the officer has seen it, I would think so, yes.
Speaker: Well, does the university dormitory room necessarily occupy the same status as a single family dwelling or an apartment for purposes of the Fourth Amendment?
Ronald R. Carpenter: Well I'd like to say it doesn't, but I think it probably does, in the sense that it's a premises, a living quarters, like--
Speaker: It's his home, isn't it, for--
Ronald R. Carpenter: --It is his home for all practical purposes. I would like to say it isn't, but I think, to be candid, sure it does.
Speaker: --Mr. Smith, so long as we're into hypotheticals, suppose we take Justice White's hypothetical, and instead of seeing some seeds in this room with which he had no concern... that is, he had no concern about the room... he saw a sawed off shotgun. Do you mean to tell me that he shouldn't do anything about it?
Ronald R. Carpenter: I'm not telling you that. I think, Chief Justice, he clearly should.
Speaker: Well, I just wanted to eliminate any idea that a policeman should ignore that. Or suppose he saw a body that appeared to be a dead body, and on reaching in and feeling the pulse, thereby violating the premises to that extent, he finds that the person is dead. He's certainly going to do something about it, isn't he?
Ronald R. Carpenter: One would hope. I would think he should be suspended or fired if he didn't do something.
Speaker: Yes.
Ronald R. Carpenter: It's correct police procedure. I don't think the Fourth Amendment requires officers to disregard things. And all the state's position is on the first issue in this case is that there were, in fact, exigent circumstances.
Speaker: If they see the evidence of an unlawful, criminal act, they must do something, whatever that something is.
Ronald R. Carpenter: Well, with the additional that when the occupant or occupants of the premises appreciate the officer's... the word is out, so to speak, the know the thing is up, if the officer leaves I just don't think it's reasonable to expect under the Fourth Amendment that--
Speaker: Well, your premise for this position is that he knew what he saw.
Ronald R. Carpenter: --Well, the Court of Appeals and the trial court believed that. They believe there was a reasonable basis--
Speaker: But you think that he did know exactly what he saw. He didn't have to go over and find out what was there.
Ronald R. Carpenter: --No, no, I think--
Speaker: He may have suspected it, but did he really know.
Ronald R. Carpenter: --The respondent tries to argue, Mr. Justice, that--
Speaker: Mr. Carpenter, at that point let me ask how far did you say, again, he was?
Ronald R. Carpenter: --Okay, he's 8 to 10 feed from the doorjamb to the black tray with the marihuana seeds and--
Speaker: Which is less than the distance between you and this bench.
Ronald R. Carpenter: --That's right. And this is an experienced officer, trained and experienced in controlled substances. There's no question in my mind from reading the record that the officer knew and believed that he had probable cause that it was marihuana.
Speaker: Mr. Carpenter, my understanding is that this respondent was under arrest at the time.
Ronald R. Carpenter: That's right.
Speaker: The Supreme Court of Washington so held.
Ronald R. Carpenter: That's correct.
Speaker: And you've been talking now for quite a while, or responding to some questions about situations where officers looking through windows and standing at doorways, as to what rights they may have. I would think you would argue this case as to the rights of an officer where he has made a lawful arrest to stay with the party arrested and to observe anything that he could observe in those circumstances.
Ronald R. Carpenter: I think that's correct, Justice.
Speaker: Doesn't the fact that this involved a lawful arrest and a search incident to arrest distinguish this case from much of what we've been talking about?
Ronald R. Carpenter: I think that's correct, and that's the second principal issue in this case. I think this case can be decided either on the first issue or the second issue.
Speaker: Mr. Carpenter, I'm confused now. I have heard you talk about exigent circumstances, I have heard you talk about search incident to a lawful arrest, and I think I've heard you talk about plain view. What is it you're really relying on? Are you relying on the fact, as you allege it to be, that the officer was in a place where he had a right to be and he saw items, contraband, in plain view? Or are you relying on exigent circumstances, or search lawful... incident to a lawful arrest, or all three or what?
Ronald R. Carpenter: Yes, Justice O'Connor, unfortunately, the last court before this Court, the Washington Supreme Court... and not to criticize that court, but I think it improperly labeled where the officer was as a nicety, and they said we're not going to decide that issue. I think it's pretty important.
Speaker: Well, what are you relying on?
Ronald R. Carpenter: Our position is... and I suppose the prosecutor wants the best of both worlds... I think we can rely on both the exigent circumstances; one, what he saw in open view while he was standing out in a public place and the occupant's reaction to him; and two, that he had a right, regardless of that, to accompany the arrestee into the premises to start with. And so, pursuant to the arrest status, for his protection, the protection of the public, the protection of the evidence, protection of veracity, so I think I'm arguing that we have the best of both worlds.
Speaker: And he sees something in plain view? I'm still confused what the thrust of your argument is.
Ronald R. Carpenter: Well, I guess the first argument is in open view, he sees it, it's in a public place, that's exigent circumstances. Now even setting that aside, I think that... the state would like to believe that answers the issue. But setting that aside and forgetting about exigent circumstances for a moment, we also would argue that if he was, in fact, in the room, or when in the room to accompany the arrestee, once he got in the room, it's in plain view, clearly he had a right to go into the room, attendant to the arrest status of Mr. Overdahl, and that it comes under, you know, proper police procedure to accompany Mr. Overdahl in that room, and what he sees there is in plain view.
Speaker: Well, unlike Justice O'Connor, who has recently joined our Court, do you think that any of the courts in the country or any prosecutor or any defense lawyer can be faulted for being somewhat confused about the state of Fourth Amendment law?
Ronald R. Carpenter: Well, I've been practicing law for ten years, and the cops always call me up at 3:00 in the morning and want me to give them a precise answer to the Fourth Amendment, and I can't do it. I think it's so enamored with constitutional subtleties and what I like to call the crafting of legal technicians that we've totally confused not only the lawyers and the judges, but the police officers who are supposed to be constitutional lawyers out in the street and making a 15-second decision to decide what the U.S. Constitution means. All I'm saying in this case is that the conduct was reasonable. The officer did what was reasonable under the status of the law clearly in 1978, in any event. That was before Mincey vs. Arizona and before Payton. It's a very confusing area. This case is important maybe to clarify what... first of all, what is an exigent circumstance. I, for the life of me, could not find a real good U.S. Supreme Court case that clearly found an exigent; I found a lot that said it wasn't and said what you should be looking for.
Speaker: Mr. Carpenter, on the question of exigent circumstances, the Chief Justice gave you examples of seeing a gun or a dead body or something like that. Is it your view that the character of the crime, the degree of violence associated and so forth has anything to do with the exigent circumstances inquiry?
Ronald R. Carpenter: No, I don't--
Speaker: You would treat this case involving--
Ronald R. Carpenter: --I don't prescribe to the theory that it has to be a serious crime--
Speaker: --involving the use of marihuana as equally as serious as a murder or anything else.
Ronald R. Carpenter: --And particularly when we get into the second issue in this case about arrest, I just don't think it's reasonable to say a officer can only take reasonable precautions to protect himself when it's a serious offense. It's not uncommon for officers to be shot on a minor traffic stop. All kinds of minor things. As the amicus points out in their brief, arrest status sort of brings out the worst in some people, and in the most low key looking situation, an officer may find himself in a very precarious position.
Speaker: I guess it's not uncommon to find marihuana in college dorms, either.
Ronald R. Carpenter: Oh, no, very common. It's a way of life at WSU, I believe.
Speaker: Mr. Carpenter, are you familiar with a case we decided last June, I think the title of it was New York against Belton?
Ronald R. Carpenter: Yes, I am. And I think you decided Robbins or something like that the same day.
Speaker: Yes. But the Belton case, as I recall, involved an officer who stopped an automobile and made a lawful arrest and the Court held that the officer was entitled, without a warrant, to search anything in the driver's compartment of the car... passenger compartment of the car.
Ronald R. Carpenter: That's right. And I believe that case made--
Speaker: Anything that he could find there. Now, the plain view doctrine certainly applies... I've always understood it... when an officer makes a lawful arrest. Why do you avoid relying primarily on that issue? Am I overlooking something?
Ronald R. Carpenter: --I excuse myself. I don't mean to... I guess like I said, I'm trying to have the best of both worlds. I think this case can be decided on both issues.
Speaker: You're trying to argue three cases at one time.
Ronald R. Carpenter: Well, I suppose if you can find three ways to hang your hat on it, I... you know, in Washington state, the prosecutor loses 80 % of the time on all issues before the Washington Supreme Court in the last two or three years, so we try to cover the issues. We try to find some way to sustain our-- [Laughter]
Speaker: I guess you can hang your hat on which ever one you want.
Ronald R. Carpenter: I'd like to have my convictions sustained.
Speaker: Now, there is a difference between the Belton case and this. There we had the mobility of an automobile, which had a special character. Here you have an immobile place.
Ronald R. Carpenter: But the language I find particular significant maybe to this case and Belton and maybe the Robinson and Gustafson cases, are the Court's observations that arrested people are very unpredictable. You know, an officer has to do enough to protect himself.
Speaker: Well, this officer might reasonably be reprimanded for not having gone in and followed him around to be sure he wasn't going to come out to the door with a sawed off shotgun in his hand.
Ronald R. Carpenter: I would not have done what this officer did. I would have gone in immediately. Because if you look at the record you will see that the young man gets into a drawer or a closet or something. Who knows there's not a pistol or something in there? I just think that he should have done a little more to protect himself than he did, but like I said, they're trying to act low key on the campus. They don't want to get a lot of bad publicity. That's pretty clear from the Joint Appendix.
Speaker: Counsel, does the record show when this man was given his Miranda warning?
Ronald R. Carpenter: Okay, he was first given his Miranda warnings after the officer seized the tray of marihuana. At that point, he gave both the occupants their Miranda warnings, and at that juncture asked if there was anything else in the room, and at that point Mr. Chrisman went ahead and volunteered the little box the officer had seen him carrying around. It had $112 and some marihuana in it.
Speaker: So he wasn't given Miranda warnings--
Ronald R. Carpenter: Not prior to the entry.
Speaker: --until he was arrested for the marihuana.
Ronald R. Carpenter: That's correct.
Speaker: He wasn't given Miranda warnings about the liquor.
Ronald R. Carpenter: That's correct.
Speaker: And yet, the purpose of the ID was for the liquor.
Ronald R. Carpenter: Well, the purpose of the ID, the state would like to say is that you have to ID anybody that you arrest.
Speaker: Where did you get that idea that you have to get an ID everytime you arrest a man?
Ronald R. Carpenter: Well, I believe it's correct police procedure. You have to ultimately book them under a name, and you have to verify them, and when you have... we do have a problem with people even appearing in our district court under phony names. I prosecuted a couple young men a couple months ago on just that. They went clear through the conviction stage using a phony name.
Speaker: Is there a requirement that you identify yourself?
Ronald R. Carpenter: Well, I think it's reasonable for an officer to ask them; I don't know if you can force somebody to identify himself, but I think it's reasonable police procedure--
Speaker: Is it reasonable to take a man back to his home after you arrest him?
Ronald R. Carpenter: --If he wishes to go, whether it's for a coat or drugs or ID, you know, prescription medicine, why ever he wants to go back. I think it's the humane thing to do.
Speaker: But you don't have a right to go there, do you?
Ronald R. Carpenter: Well, I think he doesn't have a right to go home, either, unless he allows you to accompany him. And if he says okay, I want to go back--
Speaker: But you don't have a right to accompany him unless--
Ronald R. Carpenter: --That's right, that's our argument. It seems that if he's going to go back, then he has to have a modified right there. It's not reasonable to let him go back by himself. At least, that's the state's position.
Speaker: --Mr. Carpenter, can we be certain the Washington court based its decision on the Fourth Amendment to the federal Constitution rather than on the Washington constitutional provision?
Ronald R. Carpenter: Justice O'Connor, that's one issue the respondent argues in their brief, and, of course, we argue that there's absolutely no discussion of Article I, Section 7 in the Washington state constitution in our decision. They talk about the Fourth Amendment and they talk about Payton and Rettig, and it seems to me clear that that's what they decided the case on. Now, looking at the Simpson case cited by the respondent, we argue that's really just a limited case on standing in response to this Court's case Racus. Looking at, I think it's State vs. Smith, it's in my reply brief, the Court clearly a couple years ago in Washington said that the two sections, Article I, Section 7 of the Washington constitution and the Fourth Amendment of the U.S. Constitution should be substantially interpreted the same. And so, it's the state's position that they should be, and that's what was done. I think it's mere speculation on respondent's part that it could have been. Whether it could or couldn't, it doesn't appear that they ever talked about the Washington state constitution in this case. If there are no further questions, I would like to reserve the remainder of my time for rebuttal.
Warren E. Burger: Very well, Mr. Carpenter. Mr. Patrick?
Robert F. Patrick: Mr. Chief Justice, and may it please the Court. If this case is to be decided on federal constitutional grounds, I would submit to the Court that a fundamental precept of the Constitution, that possibly this case should be considered in conjunction with or determined, is a portion of the Constitution which is seldom cited and neither counsel has cited, frankly, but seldom cited because it's part of the Preamble, and that part of the Preamble says "to secure the blessings of our liberty to ourselves and our posterity. "
Speaker: Well, the Preamble has never been considered part of the Constitution for adjudication purposes, has it?
Robert F. Patrick: No, Your Honor, no, it has not. But I think that the Fourth Amendment was adopted in part to give rise or life to that portion of the Preamble; that is, "to secure the blessing of liberty. " and part of the blessing of liberty would be the right to be free from unreasonable search and seizure.
Speaker: Well, are you suggesting that, Mr. Patrick, to negate the thought that the policeman, once having placed this man under arrest, had a right, if not a duty, to keep him within arm's length at all times until he had completed all the formalities? Any question about that in your mind?
Robert F. Patrick: I have to say to Your Honor that it is my judgment that the police officer probably had, as long as he had placed the individual under arrest, that the police officer could be with him as he went wherever this individual went. I do not believe, however, that the police officer had the right to accompany this... to have this individual go to his room to secure the identification. I also would submit to the Court that the police officer did not have the right to accompany him specifically into the room--
Speaker: Whose idea was it to go to the room? The officer's or the arrested persons's?
Robert F. Patrick: --I believe it was, in essence, the officer because the officer left the individual no choice.
Speaker: Isn't it ambiguous from the Supreme Court of Washington where it says at rage 35 of the Petition for Certiorari, "The officer noticed the bottle of gin and suspected that Overdahl was under the age of 21. " "He stopped Overdahl and requested his identification. " "Overdahl stated that he would have to go upstairs to his room to get the identification. " "Officer Daugherty required that he would have to accompany him to his room. " It's kind of hard to say from that description, isn't it, who... whether there was insistence on one party or the other?
Robert F. Patrick: Not from our standpoint, Your Honor. I submit that the insistence was for ID, and the officer wanted that ID. Not having advised Mr. Overdahl of his Miranda rights, he did not have the right to insist on ID.
Speaker: Was the arrest lawful, do you concede, even though he had no Miranda rights?
Robert F. Patrick: Your Honor, I'll be frank with you in this. I have vacillated back and forth in my own mind on it. The officer--
Speaker: It makes a difference, doesn't it?
Robert F. Patrick: --The officer... I believe at that point, at that point.
Speaker: What point is that?
Robert F. Patrick: The point where the police officer said, I will have to go with you to the room--
Speaker: At the elevator? Was that near the elevator or something?
Robert F. Patrick: --Yes. He was in the lobby. He motioned Mr. Overdahl over and he said, I'll have to see some ID for that gin, or words to that effect. Mr. Overdahl then I said I don't have it with me, I'll have to go up to my room and get it. If you'll wait for me, I'll bring it back. And the officer said no, under these circumstances I will have to go with you. And later on during cross examination--
Speaker: Well, at what point was he arrested?
Robert F. Patrick: --I believe at that point.
Speaker: That was a lawful arrest, even though there were no Miranda warnings?
Robert F. Patrick: No, I do not believe at that point that the arrest was lawful, Your Honor, because the police officer at that point knew that he could not get past basically a motion to dismiss at the trial if all he came before the judge was... if all he brought before the judge... was I've arrested this individual and this individual looks like he's under 21, to me.
Speaker: Wasn't he charged for just having liquor on the campus?
Robert F. Patrick: I beg your pardon?
Speaker: Wasn't one of the charges just being in possession of liquor on the campus?
Robert F. Patrick: That was in violation of a Washington Administrative Code, Your Honor, but the police officer indicated that he would not have arrested that individual, in essence, for that; there would be no criminal actions.
Speaker: What the officer's subjective intent was I don't know is controlling. He had, in fact, committed a violation of that regulation.
Robert F. Patrick: Of the Washington Administrative Code apparently, yes.
Speaker: And was that not a violation for which he could have been issued a citation of some kind?
Robert F. Patrick: He could have... frankly, I'm not really sure that he could be issued a citation.
Speaker: Pardon me?
Robert F. Patrick: I'm not really sure that he could be issued a citation as such. He would certainly go to... it would go to the office of the dean of students, and there would have been initiated... I do not believe there would have been initiated any criminal sanctions for that. They would have gone to the dean of students and he may have been disciplined through whatever university disciplinary procedures.
Speaker: On page 35, the Supreme Court of Washington again says, as they were waiting for the elevator, the officer asked Overdahl how old he was. Overdahl responded that he was 19.
Robert F. Patrick: Yes. At that point I believe he now had the probable cause to arrest. But I believe that the custody of Mr. Overdahl--
Speaker: What about Miranda warnings?
Robert F. Patrick: --I believe the custody of Mr. Overdahl--
Speaker: No. What about when he conceded, I am 19. Was he entitled to Miranda warnings if--
Robert F. Patrick: --Yes, Your Honor, he was entitled to the Miranda warnings.
Speaker: --Well, do you make any point of the fact he didn't get them?
Robert F. Patrick: Yes, Your Honor.
Speaker: Even though he conceded he was 19, without the Miranda warnings you suggest, or you argue, that the arrest was still unlawful?
Robert F. Patrick: Yes, Your Honor. I am arguing that when the officer said, I will accompany you to the room, that he now had put... he had so restricted Mr. Overdahl's freedom of movement that he was now under arrest. And at that time he had a duty to advise Mr. Overdahl of his rights under Miranda. I believe it happens that that arrest may--
Speaker: I'm sorry, but how can the respondent take advantage of the failure to give Miranda warnings to his roommate?
Robert F. Patrick: --Because it is the--
Speaker: The failure to give Miranda warnings doesn't vitiate the arrest, does it?
Robert F. Patrick: --But that's what led directly to... as indicated in our brief, that's what led directly to the opening of the door, which was a giving up of the right of privacy to the room. And under... then that brings into play Bumper and, I believe, Crewes that--
Speaker: I simply don't follow this argument. If the arrest is valid, it doesn't matter whether he gave Miranda warnings or not, does it?
Robert F. Patrick: --I believe that... yes, Your Honor, I believe it does because he wanted to get that ID for proof of an element of the offense.
Speaker: Well, you would infer that; your opponent infers something different on that. But regardless of his motive, if he made a valid arrest, as Justice Powell has suggested, what difference does it make whether... I just don't follow your argument.
Robert F. Patrick: The reason that it becomes important, Your Honor, is that the sole reason for going to that room was for identification. The identification would have--
Speaker: Done two things. He could have ticketed him without taking him to the station, and he would have had written as well as oral proof of age.
Robert F. Patrick: --Yes.
Speaker: Granted all that, still, now what's your argument?
Robert F. Patrick: I believe that at that point, not having advised him of his rights to Miranda, he did not have a right to, in essence, insist that the individual goes to his room, or even, there was no need for the individual to go to his room. And I believe that the police officer then took advantage of the situation to get the individual to his room.
Speaker: I still don't follow. The failure to give Miranda warnings makes subsequent statements inadmissible in evidence. Is there any doctrine that says that failure to give Miranda warnings makes it wrong for a police officer to take a person in custody to his room?
Robert F. Patrick: Yes, Your Honor, when going to the room is to obtain that evidence. I believe that having put the individual under arrest, having failed to advise the individual of the rights under Miranda--
Speaker: And so the evidence is inadmissible. Even though it's not the person who was ultimately charged.
Robert F. Patrick: --Yes, the concept, from my view anyway, Your Honor, the concept is that the police officer could not have stood outside the door and beaten Mr. Overdahl to a pulp and said open the door, and Mr. Overdahl finally opens the door. I believe that Mr. Chrisman could argue and just as effectively would have standing to assert the manner in which that door was opened. Because his privacy to the room was invaded because of a violation of his co tenant's right to privacy. I believe that's in essence what Bumper ruled when the mother allowed the police officer to come in.
Speaker: But what about this expression that was raised by the Chief Justice a little while back. Under all the circumstances you say he comes in the room and finds a loaded, double barreled, sawed off shotgun.
Robert F. Patrick: I believe, Your Honor, at that juncture there is, in fact, I believe, a difference in the quality of the item; not... at that point the officer is at least is interested in his personal safety and the personal safety of the people around as he would be evidence. And I believe that the sawed off shotgun could just as easily be confiscated under exigent circumstances--
Speaker: But he wouldn't have seen if, to quote you, he hadn't violated the roommate's rights.
Robert F. Patrick: --That is correct, that assumes that he is properly at the door.
Speaker: Well, doesn't that cut back on your point a little bit?
Robert F. Patrick: Yes, Your Honor.
Speaker: It's not absolute, is it?
Robert F. Patrick: No, it is not, Your Honor. I believe he would have a better case to go in to seize it for his own protection. But still and all, it was there because of a violation of constitutional rights.
Speaker: Well, suppose it was poison there.
Robert F. Patrick: I beg your pardon?
Speaker: Poison, which can kill just as easily as a shotgun. And which can also be poured down the toilet and disposed of.
Robert F. Patrick: In this case, there was no toilet in the room, Your Honor.
Speaker: Was there a window in the room?
Robert F. Patrick: There was a window in the room.
Speaker: It could be thrown out of the window.
Robert F. Patrick: Yes, if they wanted to break the window.
Speaker: No, they could raise the window; they weren't crippled, were they?
Robert F. Patrick: I believe at that point, once the window was raised--
Speaker: I just don't understand how you can bootstrap these arguments. Even if you admit that you... if the prosecutor here admits that he had no right to follow the man but he did follow him, that he should have given him Miranda warnings but he didn't. I don't see how that helps your client. That's my problem.
Robert F. Patrick: --Your Honor,--
Speaker: Even if I think it helps the other guy, I don't think it helps your client. Now, does that make it clear?
Robert F. Patrick: --Yes, Your Honor, but as I indicated, I believe that the police officer, as far as my client, Mr. Chrisman, is concerned, if the police officer secured the opening of the door by beating up on Mr. Overdahl until he finally, through an act of submission, opened the door,--
Speaker: Which is not here.
Robert F. Patrick: --No, but the principle I think is going to be the same. A violation of a constitutional right should give the co tenant the right to object to the manner in which the privacy was given up.
Speaker: You mean the right... looking into an open door is the same as breaking the door down.
Robert F. Patrick: For constitutional--
Speaker: There's a little bit of difference.
Robert F. Patrick: --Well, Your Honor, if you--
Speaker: Mr. Patrick, I wonder if even that follows. Supposing he lawfully arrested him downstairs, and on the way up he beated him up in the elevator and violated his constitutional rights. And then said, I still am going to follow you into the room. If he has a right to follow him into the room, the fact that he beat him up in the elevator wouldn't destroy that right, would it? I mean, there would be remedies for what he did, but I'm not sure one of the remedies is that he has to turn him loose.
Robert F. Patrick: --I don't believe he has to turn him loose, Your Honor, but I'm not sure that he can--
Speaker: Well, if he can keep him under arrest and if you can stay with your arrestee and go into a room, it doesn't seem to me that if you did something else that's very wrong on the way in has changed the legal posture at all.
Robert F. Patrick: --I think that if you fail... if you violate the individual's rights and in violating those rights of that individual, the constitutional rights of that individual--
Speaker: Beat him up in the elevator.
Robert F. Patrick: --Right, Your Honor. If that goes to the validity of the consent to go to the room--
Speaker: Under the theory, at least the one Justice Powell has been suggesting, he didn't need consent. He had the man under arrest, and the man goes in the room, he has a right to follow him in. And I'm just suggesting that he doesn't lose that right because he did something terrible in the elevator; if he has the right.
Robert F. Patrick: --You may be right, Your Honor, unless it goes to the consent of the individual to go to the room, and then I have to go back to the proposition--
Speaker: But see, it you have the arrest situation, then you don't need the consent.
Robert F. Patrick: --Except that, Your Honor, just simply because an individual is under arrest doesn't mean that the police officer has to take him to the room.
Speaker: I see what you're saying. One more hypothetical. He does everything you say to one of the men, and as he gets to the door, the wind blows the door open and he sees all of that. He can't seize it. Do you want to bet?
Robert F. Patrick: Where the wind has blown the door open?
Speaker: Yes. Just as he got there. Fortuitous wind.
Robert F. Patrick: I think that's a fortuitous event all right, Your Honor, but constitutionally... well again, we go back to the proposition... I have to go back to the proposition that the police officer was there because, under our theory of the case, he had not adequately advised the individual of his rights under Miranda, and therefore--
Speaker: Well the police officer employed by the university sure had a right to be standing in that hallway.
Robert F. Patrick: --He had a right to be in the hallway, that's true.
Speaker: And the door blew open, on my hypothetical.
Robert F. Patrick: I think, Your Honor, that when the doorway was blown open, it has not now come open by an event which one of the defendants was in control of. None of the parties was in control of. It's a little bit like the Chief Justice's question I think where the police officer is bringing Mr. Overdahl down the hall and the police officer sees some marihuana in another room. And in that case, I would say he could go in.
Speaker: But the Chief Justice says you might have to get a warrant, but you said he doesn't even have to get one.
Robert F. Patrick: No, no, I'm sorry, Your Honor, I don't mean to infer that he didn't have to get a warrant.
Speaker: I thought that you just said that that would be a different case and the officer could do it. But failure to give Miranda warnings does not vitiate an otherwise lawful arrest, does it? It just means that a motion to suppress may be granted, but we'll suppress items that were surrendered by the victim under the... because of the failure to advise him of his rights. It doesn't mean that the state can't prove its case by other evidence.
Robert F. Patrick: That's my understanding, Your Honor, that is correct. I do not believe that the state can prove its case by evidence that would arise from the individual.
Speaker: Well, that's... but this isn't the same individual.
Robert F. Patrick: But it is an individual who is in the same position, as I indicated earlier... at least I would submit to the Court that when the individual has... when a co tenant has given up the privacy of the premises because of a violation of that co tenant's rights, the non consenting co tenant should, I submit, stand in the same shoes, because it is the protection of the privacy of the premises that I believe is at stake. And this Court has on several occasions indicated that it will certainly assert and recognize the rights of the people who are... who have possessory interest in the property, although that is not necessarily the key. But again I believe that Bumper handles the standing question in which the mother, I believe it was, who owned the premises gave... acceded to the request of the police officers to come in under the proposition that they had a search warrant. And it was the defendant then who was given standing to assert that the entry was invalid because it was under the mistaken hypothesis that the police officer did have a search warrant.
Speaker: Tell me, Mr. Patrick, assuming there is no infirmity whatever in the arrest of Overdahl and they went up to the room, as they did, might not... or do you think the officer could accompany Overdahl into the room?
Robert F. Patrick: Under the facts of this case, Your Honor--
Speaker: No, I suggested them. If there is no infirmity whatever in the arrest of Overdahl. You go up to the room because Overdahl has said, I want to get the ID for you. Could not the officer accompany him into the room?
Robert F. Patrick: --The Washington Supreme Court said no.
Speaker: What do you think?
Robert F. Patrick: Ah--
Speaker: And why not, if you're going to answer he couldn't? I would suppose the officer would be able to be sure that he wasn't going to be attacked or assaulted.
Robert F. Patrick: --That's why I said I didn't think so under the facts of this case. I can understand why a police officer would want to be in a position where he could protect himself from an attack or an assault. The problem is, in this case, a police officer's actions did not give any indication that he had any concern about that.
Speaker: Because he stood in the doorway instead of entering, is that it?
Robert F. Patrick: He stood in the doorway, he had not frisked the individual before he got there, at least the record doesn't disclose that he did.
Speaker: Let's suppose, however, that he had entered. Would there be anything wrongful about that entry?
Robert F. Patrick: If he had gone into the room?
Speaker: Yes. If he had gone in with Overdahl.
Robert F. Patrick: Under our Supreme Court's decision, which we submit could be supported under the Washington constitution, and under State vs. Seiss, a New Jersey decision we cited in our brief, the theory is that there are some types of arrests which are so insignificant that it is not valid for the police officer to accompany the individual into the room.
Speaker: Incidentally, there is no suggestion that the Washington Supreme Court decided this case under the Washington constitution, is there?
Robert F. Patrick: The Washington Supreme Court cited State vs. Daugherty, which is a Washington case.
Speaker: Well, do you think they rested this on the state constitution rather than the federal?
Robert F. Patrick: I think that they could have and I'm not 100 % sure.
Speaker: Well, did they?
Robert F. Patrick: I'm not really sure, frankly, whether they did or did not.
Speaker: If they did, we would have no jurisdiction over this case, obviously.
Robert F. Patrick: That is correct, Your Honor.
Speaker: Well, do you suggest they did?
Robert F. Patrick: Yes, I'm suggesting that this Court... if this Court believes that the search could be upheld under federal constitutional grounds, I believe that the case should be remanded back to the State Supreme Court to see if the State Supreme Court decided the case under the state constitution.
Speaker: Why did the State Supreme Court cite all the federal constitutional cases if it was deciding it under the Washington constitution?
Robert F. Patrick: I believe, Your Honor, that the concept that the states can interpret their own constitution and can grant additional rights over and above those granted to the federal Constitution frankly is of relatively recent origin, and I don't think it's been thoroughly thought out, frankly. I believe in Mr. Justice Brennan's Law Review article he propounded that proposition. And I think that frankly, part of the reason would be, although it's up to the state supreme court to say for themselves, but I would think that part of the reason is that the state supreme courts have grown so accustomed to examining questions in light of what they think the United States Supreme Court is going to rule, that they are very used to taking precedent from the U.S. Supreme Court. And I believe, however, that in the future, as this theory is... we all have more experience with this theory, it would not surprise me to see state supreme court decisions resting their decision on their state constitutional grounds where it is their view that additional rights are granted under their respective constitutions.
Speaker: But we're reviewing a judgment here that's not in the future but was rendered in the past.
Robert F. Patrick: That is correct, Your Honor. But one of the authorities cited by the state supreme court was, as I say, the State vs. Daugherty. Now, State vs. Daugherty itself cited some federal cases and some state cases, and I did review some of those state cases and again, those cases cited are also state and federal cases. I believe that the state supreme court could have decided this case under the state constitution, and as I indicated earlier, if this Court feels that the state constitution... or rather, that the federal Constitution was not violated by the search, then I would request the Court, again, to remand it back to the state supreme court for a determination as to whether or not the search could be sustained under the state constitution.
Speaker: Isn't the test whether it did decide it rather than whether it could have decided it, under Privda and Minnesota vs. National Tea and those cases?
Robert F. Patrick: Your Honor, I think that may well be, but I think that where the supreme court, or where the case... if the case were to be reversed and go back to the trial court, I would think that if the trial court then were to sentence the individual and impose a sentence, that again, we would probably be faced with trying to go back up to the state supreme court and give the state supreme court an opportunity to rule on the constitutionality of... under the state constitution. And I believe it would avoid a lot of circular action if it were simply to go back to the state supreme court.
Speaker: Of course, this business of deciding cases on state constitutional principles rather than federal is nothing new. We've been doing it up here for a long time.
Robert F. Patrick: Yes, Your Honor, that is true. But I think in the... I believe certainly in recent history under the state court... under the constitutional principles, the state supreme courts have... particularly after Mann... have become accustomed to following the precedent of the U.S. Supreme Court, and feel... I believe for a time felt pretty much locked in by the precedents set by this Court. And the state supreme court then should be allowed, I submit, to decide this case on state constitutional principles, if the Court determines that this case should not be decided as incorrect under federal constitutional principles.
Speaker: Mr. Patrick, on that point, did you tell us... I want to be sure I understood what you were saying... that there is a state constitutional doctrine that more or less classifies certain offenses as very petty offenses and that if this offense is in that category, that as a matter of state law, the entry into the room might not have been justified by the fact that the man was under arrest.
Robert F. Patrick: That's my... the state supreme court said that this type... an arrest for this type of offense did not justify the police officer accompanying the individual into the room.
Speaker: That's in the... is that the Daugherty case the courts have found that--
Robert F. Patrick: No, that's my understanding of the Chrisman case.
Speaker: --Of the holding in this case, I see, all right.
Robert F. Patrick: Yes. The Simpson case, which we cited for the proposition that the state court can interpret its own constitution and indeed has interpreted in some instances the state constitution to give the additional rights than those given under the federal Constitution, we submit was not simply standing, because standing is not a constitutional interpretation, as I see it. So I believe the state constitution could vindicate the holding of the state court.
Speaker: Mr. Patrick, may I review with you just a moment to be clear, are you now willing to concede that Mr. Overdahl had been lawfully arrested before the officer accompanied him to his room?
Robert F. Patrick: I believe that when... yes, Your Honor, when the police officer found out that he was under the age of 19, I believe that at that point--
Speaker: The answer is yes?
Robert F. Patrick: --Yes.
Speaker: And do you concede that the officer was lawfully at the doorway of the room with Mr. Overdahl?
Robert F. Patrick: No, Your Honor, because I do not believe that the police officer had given Mr. Overdahl his Miranda rights, and therefore, did not have the right to accompany him to get evidence against Mr. Overdahl. And that if anything--
Speaker: But you would concede there are circumstances which would justify an officer in accompanying the person arrested to his dwelling, into the dwelling.
Robert F. Patrick: --I believe the case authority is that the police officers, on certain occasions where there... and all the cases cited by the state indicate that the request was for a purpose of the accused rather than a purpose of the police officer, where that is permitted. I believe that... I haven't touched yet on the knock and announce rule, and I would like to just touch very briefly on the knock and announce rule. If the police officer were outside the room and had accompanied Mr. Overdahl to the room and were at that point outside the room, now the nature of the situation when he determines to enter the room, it seems to me, has been changed. He has now... he was at the room for one purpose and is outside that room and has now decided for whatever reason to go into the room, and I submit at that point, under the knock and announce rule, he should... while he might not have had to knock; I don't think he would have had to knock, but I do believe that he should have announced his purpose to enter the room.
Speaker: Well, Ker in California held that the knock and announce rule was not a constitutional rule, didn't it?
Robert F. Patrick: It was my understanding that it was of constitutional proportion, or at least it's my understanding that the state--
Speaker: That's what the dissent said in Ker and California.
Robert F. Patrick: --I believe that our state supreme court has determined that it is of constitutional proportions. In summation, if I could simply say to the Court that in this case, if the police officer were outside the room, and if the Court finds exigent circumstances, he created his own exigent circumstances. He could have maintained the status quo and did not. He could have maintained with his radio a guard at the door while a search warrant was obtained, and we submit that where we are talking about protection to the dwelling, the protection in maintaining the right to privacy, that where a reasonable opportunity exists to obtain a search warrant and preserve the status quo, that this Court will require that the status quo be maintained and that a search warrant be obtained and that the entry be made pursuant to a search warrant. Thank you, Your Honors.
Warren E. Burger: Do you have anything further, Mr. Carpenter?
Ronald R. Carpenter: Mr. Chief Justice, and may it please the Court--
Speaker: Do you think that opinion can be read as resting on your statement?
Ronald R. Carpenter: --Which, the Chrisman opinion?
Speaker: Yes.
Ronald R. Carpenter: No, I believe it cannot. And I particularly believe it cannot because of State v. Smith.
Speaker: Do you think it's even ambiguous--
Ronald R. Carpenter: No, I don't think there's anything ambiguous. It's true that it did cite a state case, State v. Daugherty, which cites a whole series of other state cases, but those state cases are talking about interpretation of the U.S. Constitution primarily; they're not talking about the U.S. Constitution. The only case of recent times that is helpful to underline any disparity in the two constitutions is State v. Simpson which talks about the standing problem. State v. Smith decided in 1977 clearly makes the point that the two constitutional provisions should be given the same effect. And it's only that point of departure on standing that our court made a difference. I think the record is helpful in some of the things we've been talking about. I'd ask the Court when it has a chance to look at the Joint Appendix Page 35, and I think that clearly shows the trial court's findings of fact, which show that it was Mr. Overdahl's desire to go back to the room, and that his response to the office was okay, he could accompany him. Also, a fact that got maybe lost in the wash a little bit here is that the third violation, also a criminal violation, was that... and it's replete in the Joint Appendix references... is that it's a violation of criminal law and Washington law to have an open container out in public, and that's another reason the officer could have arrested him, and one of the reasons he cites at the suppression hearing in the trial court.
Speaker: --An open container of gin?
Ronald R. Carpenter: Of alcoholic beverage. The gin--
Speaker: In this case, gin.
Ronald R. Carpenter: --Yes.
Speaker: However old you are.
Ronald R. Carpenter: However old you are, if you're 65 it doesn't matter.
Speaker: Mr. Carpenter, what about-- --That isn't old. [Laughter]
Ronald R. Carpenter: I didn't imply it was old.
Speaker: What about Mr. Patrick's suggestion that there are certain very minor offenses with respect to which when an arrest is made, the arresting officer could not follow the man into the room?
Ronald R. Carpenter: No, I don't subscribe to that theory and I don't think our court said that. I think our court just felt that the U.S. Constitution required... I think they may have thought in their principal opinion that the U.S. Constitution made some distinction between serious and non serious cases. I think that is sort of ludicrous because the officer is threatened, his protection is just as much at stake.
Speaker: Well, in the opinions last spring, Justice Stewart referred to custodial arrests. Do you remember that in one of the cases?
Ronald R. Carpenter: Yes, I remember.
Speaker: Do you think that was kind of nonsensical?
Ronald R. Carpenter: Well, let me just say it this way in the most diplomatic way I can, I think that it is unrealistic to say that officers have to articulate some specific threat to them. Because by the time they find out about the threat, they are probably either Going to be dead or severely injured. Maybe that's a very callous look at society, but we have some bizarre things going on in today's society. It's not the peaceful society of 200 years ago.
Speaker: So your view would be all arrests are considered--
Ronald R. Carpenter: All arrests. There's jeopardy, as the amicus points out in their brief, in all arrests.
Speaker: --Until you get on bail.
Ronald R. Carpenter: That's correct. The other thing is I really don't think this Miranda issue, the question at the elevator... I would suggest is somewhat of a red herring. You have to remember that they were already going back to the room to get ID when he asked him about his age and he said it was 19. Now, what effect does the fact that he may have violated his Miranda rights at that point? They were still going back to the room, that's where they started, that's where they were headed when they went into the elevator and ascended to the 11th floor. So it doesn't add or subtract anything. He was never prosecuted, the state never attempted to use that statement against him for any criminal prosecution. I think it just doesn't naturally follow that that somehow affects the arrest in this case. As the Court of Appeals aptly observed on page 24 through 26 of our Petition for Certiorari, the section where the Court of Appeals talked about that, and they say it's just of no constitutional significance. I see my time is up. Thank you.
Warren E. Burger: Thank you, gentlemen, the case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock [= 10:00].


Earl Warren: Number 13, Commissioner of Internal Revenue, Petitioner, versus Fred N. Acker. Mr. Spritzer.
Ralph S. Spritzer: Mr. Chief Justice, may it please Your Honors. This case comes here from the Sixth Circuit and involves construction of provisions of the Internal Revenue Code of 1939. Shortly after the decision below came down, the identical issue came before three other Courts of Appeals those of the Third, Fifth and Ninth Circuits and all three of those courts have expressly disagreed with the result which was reached in the instant case. And presumably to resolve that conflict, this Court granted the writ. The issue is a narrow one and the facts of this case are very simple and I take it undisputed. For the years 1947 through 1940, respondent taxpayer, who incidentally is an attorney, failed to file a declaration or estimate, as it is sometimes called, of income tax, pursuant to the now familiar requirements under our scheme of pay-as-you-go income taxation. This failure to file the declaration was willful and without any reasonable cause or excuse in the statutory sense. There are specific findings as to that by both the Tax Court and the Court of Appeals at record 8 and 16, respectively. I pause to mention in fairness to taxpayer that there is no suggestion that the reason for the failure to file the declaration was a tax evasion or a fraudulent motive, rather it appears from this and from other cases as well in which the taxpayer has been involved, that the reason for non-filing was a desire to bring a test case in which taxpayer might challenge the constitutionality of the federal income tax laws in their present form. In any event, taxpayer was liable for taxes in fairly -- in substantial amounts in each of the years involved. And the question here is simply what additions, what additions to tax were properly imposed by the Commissioner by virtue of the taxpayer's delinquency in the respect I've indicated. The Government's position, which, as I say, has the support of three circuits and the Tax Court, is that respondent was liable under the statutory scheme for two distinct additions to tax in each of the years involved. Whereas, taxpayer's position, which was adopted below and has also been followed by a number of District Courts, is that the statutes permit but a single addition each year. And that brings me, of course, to the statutory provisions themselves and to the pertinent Treasury Regulation. They are set out in our brief --
Speaker: (Voice Overlap) presented issue does not involve as such or anything?
Ralph S. Spritzer: No. Not as such. The question is whether the 6% and --
Speaker: It was on top of it.
Ralph S. Spritzer: On top of the 10%, yes. I think to give the scheme, I -- I need to indicate the various addition provisions though only one of them is here in dispute. Those provisions are set out beginning at page 29 of the Government's brief. The first one in point, Section 294 (d) (1) (A) which is at the bottom of 29 under the caption, “failure to file declaration,” that provision provides in substance that if there is no filing of the declaration unless such non-filing is excused by reasonable cause, there shall be added to the tax 5% of the amount due, but unpaid. And then the provision goes on to state that each additional month of that delinquency continues, there shall be an additional 1%, but not to exceed an aggregate of more than 10%. And that provision I shall refer to as the 10% penalty provision. I used the term penalty because this addition is intended to apply as the statute says. Only where there is fault where there is lack of excuse a -- a willful or defiant failure to file the declaration and also of course, because the 10% figure is itself, obviously a -- a penalty kind of figure. It has not been an ordinary interest charge. Subparagraph (B), which immediately follows on page 30, is not involved in this case as such, but perhaps calls for a brief word to give the full picture. And it provides in substance, that if a declaration of estimated tax has been filed, unlike the situation here. If one has been filed, but the installments thereunder have not been paid in accordance with the declaration, that once again additions which may aggregate 10% maybe imposed. Here again, the breach of duty is excused, if it's shown that there was reasonable cause for the non-payment. And this provision is of course, alternative to (A). This applies when there's a declaration and no payment thereunder. (A) covers the situation where there has been no declaration. I come now, then to the third addition provision which is set forth in a separate section. This is 294 (d) (2), which is captioned, “substantial underestimate of estimated tax.” And it is the application of this provision which -- which gives rise to the exact dispute that we have here. As the caption indicates, this deals with the situation where there has been a substantial understatement in the declaration or a “substantial underestimate”. A -- an underestimate incidentally, is deemed substantial under this statute, if the final tax as figured at the end of the year, exceeds by more than 20%, the amount which the taxpayer has estimated. Now, if there is such an understatement, the statute provides that there is to be added to the tax 6% of the difference between the final tax and the estimate. In short, if a taxpayer's final tax liability of $1000 and he has estimated $800, he has satisfied the provision. If he estimated $500, the provision would call for an addition of 6% of the difference between $500 and $1000. Now this addition, as we view it, is in the nature of an interest charge, though it is designated like the other, an addition to tax. The important consideration to note here, I think, is that this provision applies irrespective of whether there is fault or no fault. There's no provision in -- in this section for excusing the addition to tax.
Potter Stewart: Well -- perhaps not on this very section that there is a provision, is there not, that provides as follows, if my tax last year amounted to $500, even if my tax this year is going to amount to $40,000, if I filed a declaration based on last year's estimate, I'm completely insulated from this penalty or this interest, I'm I not?
Ralph S. Spritzer: Yes, Your Honor. But that is not a -- the answer to the reason that is so, is because that is not a substantial understatement as defined in the tax effect.
Potter Stewart: (Voice Overlap) definition. But this -- this is also true even if I -- it's irrelevant even -- that -- that I had knowledge that this year my tax was going to be $40,000, is it not? It's to the -- after the Government to show that even.
Ralph S. Spritzer: Well, this -- the provision to which Your Honor refers is designed to give taxpayers who find difficulty in estimating. A means of meeting the requirement and if they estimate last year's tax, they have satisfied for purposes of this addition provision statute. Similarly, a taxpayer can elect to file an estimate every three months on the basis of his experience for that quarter of the year. He can annualize his tax. The point I was making is that if there is a substantial underestimate as defined in the statute, then there is no defense of reasonable cause or over side or mistake, or other form of excuse.
Potter Stewart: Well, it's part of my question only went to your argument that this amounts to interest, because under my supposititious case, I could knowingly be withholding $38,500 of money due the Government for a substantial portion -- period of time and -- and be liable for no interest whatsoever, isn't that true?
Ralph S. Spritzer: That is true under these addition provisions. And that is so because I think --
Potter Stewart: Because the definition of --
Ralph S. Spritzer: Because of the definition and because Congress wanted to take care of the taxpayer who -- whose business was such that he had special difficulty in estimating. I think if in fact, a taxpayer can estimate and he knows that his income in the current year is going to be substantial -- substantially higher, I think it's questionable whether he should take advantage of this provision. Because he is required to set out his estimate over a declaration that these facts are true to the best of his knowledge and belief and while the addition provision doesn't apply in terms, I doubt if that provision is intended for his benefit. The point I was attempting to stress is that I think the 10% provision is designed to deal with the situation where there has been a specified breach of a particular requirement and that breach has been knowing and willful. Hence, it applies only where there is fault for willfulness. Whereas, the other provision is apparently designed to compensate the Government in the situation where has not received a reasonably accurate estimate and according -- and payments in accordance therewith. And that latter provision would apply to a taxpayer who perhaps had a perfectly good excuse for not filing a declaration. The 6% addition would apply. Similarly, the 6% addition applies to the taxpayer who has filed a declaration, but one which is inadequate, even though there was no willfulness or willful neglect in making the inadequate estimate. I'd like to refer the Court at this point to the regulation. I -- I might perhaps say, one word first. The taxpayer's argument is essentially this. That where a taxpayer doesn't file a declaration or estimate, there can be no underestimate -- having been no estimate, there can be no underestimate. Now, the -- the regulation --
Potter Stewart: What is the, in that connection, what -- well, I'm asking this for information on page 30 of your brief, this statute is set out --
Ralph S. Spritzer: Yes, sir.
Potter Stewart: I'm -- I'm interested in the meaning of the sentence beginning toward the top of that page, “For the purposes of this subparagraph, the amount and due date of each installment shall be the same as if the declaration had been filed within the time prescribed, showing an estimated tax equal to the correct tax reduced by the credit under Sections 32 and 35. And this is in the statute relating to failure to file any declaration at all.
Ralph S. Spritzer: You're reading at the end of that paragraph, Your Honor?
Potter Stewart: At the end of that paragraph, yes, on the top -- toward the top of page 30.
Ralph S. Spritzer: Yes. The 32 and 35 refer to the withholdings and other credits and that would enter into the base to which this 10% was applied. It's -- it's 10 -- the 10% has to be applied to a figure, of course, the correct tax figure and that is reduced by these credits. So that to the extent there has been a withholding, this 10% penalty would not take hold of that portion of the taxpayer --
Potter Stewart: It had been withheld?
Ralph S. Spritzer: -- and the tax laws and other portion that's been withheld.
Potter Stewart: So, what troubled or what interested me about this language was the fact that it was contained in that part of the statute which relates the failure to file any declaration. And it says that for certain purposes, it will be assumed that this -- the result will be the same as though a declaration had been filed.
Ralph S. Spritzer: Yes. And that is done, I think, to take care of the problems of credits and withholdings, and to bring that into the -- into the computation. The -- as if the declaration had been filed that it comes into play more -- more precisely in the regulation itself, to which I was about to refer the Court. And the crucial sentence in that regulation is the last sentence appearing on page 34, “In the event of a failure to file the required declaration, the amount of the estimated tax for the purposes of this provision is zero.” Now, this regulation was adopted in 1943, very promptly after Congress in the Current Tax Payment Act of that year, adopted the scheme of pay-as-you-go income taxation. It remained in the regulations from that time until the new Code of -- was adopted in 1954.
Potter Stewart: Incidentally, under that Code this problem doesn't arise?
Ralph S. Spritzer: It does not. The importance of this case such as it has is that there are several thousand cases still pending under the 1939 Code. I referred the Court to the sentences or regulation which takes care of this case precisely. The Sixth Circuit viewed that aspect of the regulation as invalid. It said that it didn't consider the regulation to be consistent with the statute. Now, we urge that it is at least a permissible interpretation of this statute that the concept of substantial underestimation is broad enough to cover the case of the taxpayer who has substantial income, but fails to estimate that any tax at all, is due. And the three other circuits which have passed upon the question have said, “The statute is not free from ambiguities. That it is necessary and proper to refer to the history and to the consistent administrative practice.” And they have concluded that that history in practice compelled the conclusion that Congress contemplated that the 6% addition was applicable in situations where no estimate was filed as well as to situations where an inadequate estimate was filed. Now, in that premise, let me refer the Court very briefly to the relevant history which we set out at 19 and 20, of our brief. I would call the Court's attention particularly to one sentence which is quoted on page 20 and appears in both the House Committee Report and the Senate Committee Report on the Current Tax Payment Act. And that sentence is this, “In the event of a failure to file any declaration where one is due, the amount of the estimated tax for the purposes of this provision,” And the discussion there was the addition for substantial under estimation. “For purposes of this provision, will be zero.” And so, we have a case here in which the Treasury Regulation was adopted verbatim from the Committee Reports of the two Houses of Congress.
Felix Frankfurter: Mr. Spritzer, may I ask you to tell me what the setting of that sentence in the reports was.
Ralph S. Spritzer: Yes, if Your Honor will go back to page 19, the Committee Reports begin with the quotation toward the bottom of that page. These paragraphs contain sanctions relating to the filing of declarations, payments of installments of estimated tax and to the proper estimate of tax.
Felix Frankfurter: You say it was directed towards I think, to the enforcing provision that was part of the elucidation of the enforcing --
Ralph S. Spritzer: Yes. After saying that there are three additions to tax, the Committee Reports have a brief discussion of each paragraph. And when they come to the substantial underestimate, one they say in effect, no declaration is for purposes of this provision tantamount to a declaration of no tax due. Between 43, when this provision went into the regulations in 1954, numerous changes we're made from time to time in the additions provisions. At no time, was there any disapproval implied or otherwise, of the Treasury Regulation. When the 1954 Code was adopted, Congress made a change which does away with this problem and in doing so, it observed and we quote the passage on page 23 of their brief, “It observed that under the 1939 Code, the charge for non-filing and the charge for failure to file a declaration or paying installment of estimated tax may run concurrently.”
Hugo L. Black: What change is made?
Ralph S. Spritzer: There is now a single addition for all types of delinquency in connection with declarations and payments thereunder.
Hugo L. Black: What amount?
Ralph S. Spritzer: 6%, Your Honor. There is a single 6% whether the failure is non-fling of the declaration, inadequate estimate or non-payment. And it is measured from each quarter what the new law provides is that you determine what the correct figure is, then you take one-quarter of that and if that quarter wasn't paid when that installment was due, you compute six -- you add 6%, measured from that due date.
Hugo L. Black: It cannot run from Government.
Ralph S. Spritzer: There is no provision for a concurrent addition of any kind in the 1954 Code. This applies strictly to cases arising under the 1939 Code. Congress in the 1954 Code continued the existing provisions in effect, until a specified date -- that date, until January 1, 1955. So this set of additions -- the set of additions provided for in the 1939 Code, must be applied to all cases up to all tax cases arising prior to January 1 of 1955. I would like to point out by two examples quite briefly that this isn't the case of two additions for the same thing depending on the same elements. And I can illustrate that by pointing out to the Court that there are cases in which the 10% addition applies and the 6% does not. There are cases in which the 6% addition applies and the 10% does not. First case, suppose that a taxpayer fails to file a declaration and makes no payment during the tax year.If this was the result of a mistake or passive neglect, the failure is excused. The 6% addition nonetheless, applied in our view. Indeed, if it did not apply, the taxpayer who was ignorant of the filing requirement would be better off from the taxpayer who complied with the filing requirement, but submitted in estimate that was too low. The reverse situation is covered by this example. X again fails to file a declaration. However, he's a salaried employee and the portion of his pay is withheld under the withholding provisions by his employer each week and transmitted in due course to the Commissioner. His final return let us suppose is $1000 -- shows a correct tax of $1000 and withholdings during the year amounted to $800. Now, in that event there is no 6% addition to tax, because there has been no substantial underestimate, because under Section 294 (d) (2) credits or withholdings are taken into account in determining whether there has been a substantial understatement. On the facts I gave, the withholdings amounted to 80% of the ultimate tax liability, hence no statutory understatement.
Speaker: Is it used for a purpose contrary to enforce this understatement penalty or understatement addition or do they --
Ralph S. Spritzer: The 10% provision?
Speaker: No, the 6% provision, or do they --
Ralph S. Spritzer: I am --
Speaker: -- used to it, when they get a taxpayer that -- been in trouble with them.
Ralph S. Spritzer: I think they have attempted to enforce --
Speaker: To cross the board --
Ralph S. Spritzer: -- consistently in recent years. I understand that in the early years when the scheme was a novel one, that there was very little effective enforcement of these additions to tax, if that may have proceeded from a billing that the country needed a certain amount of time to accustom itself to the new scheme. But apparently, the -- the cases didn't begin to come into the courts until some years after pay-as-you-go taxation started.
Charles E. Whittaker: Mr. Spritzer, it's not true that an entirely -- Section 294 (d) (2) alone, there could be no means of confusing the amount -- the addition for the amount would not be ascertained, upon which the computation should be made. And in order therefore to make the computation, you have to look to the regulation which fixes the estimate, when none was filed at zero. And is it not the holding of the Fifth Circuit that because of that fact, it is not the statute, but the regulation that imposes this penalty.
Ralph S. Spritzer: Well, our question I think is whether a filing of no declaration at all can be deemed to be equivalent to an estimate of no tax due.
Charles E. Whittaker: When Congress didn't speak on the subject.
Ralph S. Spritzer: Congress used the term in the statute, substantial understatement. Now, I think it's open to argument whether one can be said to have substantially underestimated, when he has filed nothing.
Charles E. Whittaker: Well --
Ralph S. Spritzer: But I don't think it's foreclosed -- that were foreclosed from determining what Congress meant by underestimate.
Charles E. Whittaker: Well, doesn't -- do we not say the word, substantial underestimate appear only in the subheading of that subsection, the section starts off saying at 80% of the tax in the case of individuals, etcetera, exceeds the estimated tax, there shall be added to the tax --
Ralph S. Spritzer: Yes.
Charles E. Whittaker: -- an amount.
Ralph S. Spritzer: Well, has a man who has filed no piece of paper and not estimated pay zero tax. I think that's certainly, the -- the statute doesn't foreclose that interpretation. I'm not saying that it compels it, but I think that the statute is at least sufficiently ambiguous, so that resort maybe held to legislative history. And in this case, we have Committee Reports of both Houses, which contain a statement which shows that Congress necessarily contemplated that the non-filing would be treated as a declaration of zero. Those are the very words that both Houses used. We have combined with that a Treasury Regulation which has been in effect from the beginning of pay-as-you-go taxation and has been followed for 11 years until the Code has been revised, a -- a more concrete and persuasive history I -- I think is hard to find.
Earl Warren: Mr. Acker.
Fred N. Acker: Mr. Chief Justice, Associate Justices of the Supreme Court, may it please. I would first address myself a little out of order. Justice Stewart asked a question where a man had a return or an income of $2500 in a certain year and the following year he had $50,000. Under the law as it is enforced now, there would be no penalty. Now, if I understand correctly and I'm willing to be corrected on the proposition, because the statute requiring a declaration involved a prophecy, that is a main at the beginning of the economic year, had to prophesy two things. He had to prophesy what his taxable income would be and that involved a double guess, it involved a guess by him as to what his income would be and it also involved a much more difficult guess as to what the tax rate would be when Congress got around to enacting the tax for that particular year. Therefore, the courts in interpreting this provision, this reasonableness provision ignored the expressed wording of the statute and they said that, “We, as a court, won't construe any man who does that as having complied with the statute.” In other words, this was a case where the statute itself was so extreme that the Court by a long series of decisions avoided or voided the effect of this statute in that situation. And finally, after they magnified and buildup and multiplied, I think the Commissioner then said, “That we will accept that definition and I think that that is the history of that situation.” Now, I want to go to a point that counsel was making his very last point that he made. And he was saying there that there would be a situation in which a man could be in complete default and he wouldn't pay any penalty and that situation grows about in this situation. The man files no return at all, that is no estimate. And therefore, strictly speaking, he should pay a 10% penalty. But if he could show that that was reasonable, he would escape that penalty. Then we come to the second provision, the so-called 6% provision and since he had filed no estimate and since it's very difficult to underestimate something that he didn't file at all, that you can't file an estimate and not file at -- you cannot file an estimate and file an estimate that's an understatement at one of the same time, this man would be excused from the 6% penalty under my definition. Now, counsel says that that is an ambiguity, but in that he airs, “Because that is not an ambiguity, it is an omission by the drafter of the Act.” It's some omission to cover it. It's not an ambiguity, it's an omission. And of course, you can't create a liability, because the drafter of the Act created an omission. So he calls it by the wrong name. He didn't cover all of the possible situations that could exist. And therefore, what he's complaining about is not an ambiguity, he is complaining about an omission.
Felix Frankfurter: Suppose that Congress had put that census that Mr. Spritzer quoted on top of page 20, into the Act itself --
Fred N. Acker: Then my answer would be, Your Honor, is this. That Congress would find itself in the very irrational proposition of having two penalties for one and the same thing. And one of them would be 10% and the other one would be 6%, and with all due deference that sometimes Congress does do things that are irrational, I don't think that they would do a thing so completely irrational as that. In any event, they didn't do it.
Felix Frankfurter: Well, the question is whether the definition in the report has in the illegal significance to a definition or in a statute.
Fred N. Acker: It does not unless there is an ambiguity in the statute. Now, we -- we get down to --
Felix Frankfurter: And -- and Congress and they don't see, will say now, we can use this place and the statute living in this (Inaudible)
Fred N. Acker: Yes, they can, up to a point -- up to a point. But since they didn't say it, we don't need to --
Felix Frankfurter: (Voice Overlap) needed a report, didn't they?
Fred N. Acker: In the Conference Report, there is such language, Your Honor. Now, let's get down to the essence of this case. Here, we have an exceedingly simple statute, an abstract legal question. And we have a requirement on the Income Tax Law that said, “That you must file a declaration and they created two kinds of penalties, just two kinds of penalties for two possible situations.” The man who says, “I will make no report” and the other man who makes a faulty report. And judging the weight of those two defaults, they'd say for the major default which is in defiance of the law itself, we'll make it 10, but the man who does it just badly, we will make it 6. Now, if you will read the statute, I defy anyone to get any other conclusion out of it or any other possibility. The wording is plain, it is unmistakable, it is -- I go so far is to say, it is inescapable. And therefore, I say, Your Honor, there can be no resort either to the Conference Report or to the regulations because there is, in fact, no ambiguity and the entire brief, some 27 pages or some 34 pages of the Government's brief, turns entirely around the proposition that there is an ambiguity. But they fail in any respect to point out what the ambiguity is. What is the ambiguity? Where is the ambiguity? There might be an -- an omission in a very extraordinary situation, but there is no ambiguity. And therefore, if I understand the law of the land as interpreted by this Court and by all of the state courts' interpreting statutes, if there is no ambiguity in itself, if we can get it from the four corners of the statute, then we have no resort either the Conference Reports or the regulations of any kind and that is the essence. And therefore, this Court after examining the expressed language of that statute, before it could begin to examine the Conference Report, or to examine the regulations, or to examine any of -- of the arguments, would've first have to find that there was in truth and in fact, an ambiguity.
Felix Frankfurter: You have to go beyond that, it seems to me. You have to establish that a Conference Report as waiting a report and any I believe, much more waiting for me than an individual -- report of an individual committee of either House, that a Conference Report can't write a definition of that which without it, would be unambiguous your way. As far as I'm concerned, it would be unambiguous your way without the Conference Report.
Fred N. Acker: All I am (Voice Overlap) --
Felix Frankfurter: Are you saying --
Fred N. Acker: Pardon.
Felix Frankfurter: -- are you saying that a Conference Report which says, we mean by underestimated that if nothing is given at zero and therefore, whatever beyond that is the range of underestimation.
Fred N. Acker: I have a double answer for that, Your Honor, or I think I have a double answer for it.
Felix Frankfurter: I'd be very hospitable to -- to have --
Fred N. Acker: Yes.
Felix Frankfurter: -- to --
Fred N. Acker: Now --
Felix Frankfurter: (Voice Overlap) --
Fred N. Acker: -- if that was -- if it was in the Conference Report and therefore in the mind of the Congress that they wanted to do that, that they wanted to create a liability, a second liability, they would have said so, they would have said so, if that was the mind of the Congress.
Felix Frankfurter: Would you be good enough you would solve a -- you take a lot of difficulties out of or wait for me -- to tell me how I can find out the mind of Congress except to the expression of its authoritative organs?
Fred N. Acker: Its authority statement is only in the statute.
Felix Frankfurter: Well, but this Court has go on way beyond that. That -- that would be a perfect argument in England. We said that reports -- above all reports (Inaudible) by authoritative spokesman on the floor of either House and report and I say especially a Conference Report is a gloss and the only authoritative expression of mind that I know, is what those who are authorized to speak to Congress say.
Fred N. Acker: But, Your Honor, while every enactment is the result of a give and take theoretically on the floor of Congress or in the Committee, its final conclusion can only be construed from the statute itself, if the statute is plain and unambiguous.
Felix Frankfurter: Doesn't the Conference Report has to be adopted by each House?
Fred N. Acker: Well now, I'm not familiar with the rules of Congress.
Felix Frankfurter: Well, that's what -- evidently, there were differences and they then each -- the Conference Committee submitted this report to each House and they have to act on it.
Fred N. Acker: And, Your Honor, let me say this. That the fact that you don't find language in the statute, you can construe either way. You can construe that they therefore understood it in the light that the Government now contends for or that you can construe it in the light that they intended to avoid that conclusion by the omission of it. In other words, that's an argument that can work both ways. You can work that argument both ways either way. It's just as logical to argue. One conclusion as it is to argue the other conclusion. And secondly, I -- I'm a little bit puzzled when it comes to holding and what Congress did or didn't do when -- when or what their thought was, when you regard the Internal Revenue Act which is a -- a document of about 900 pages. And I am sure there isn't a congressman -- there isn't any congressman or any senator that understands what's in it. He got a general conception --
Felix Frankfurter: And we ought to throw out the whole statute.
Fred N. Acker: Oh, no. I don't agree with that.
Felix Frankfurter: Because we got no mind of Congress -- we got no mind of Congress.
Fred N. Acker: But when you are trying to reach in -- have been searching to the mind of what the Congress was, you have to pay some attention to the type of an enactment that it was, when you have a single statute or a simplified statute that's one thing. But when you have a large comprehensive statute, which even the Internal Revenue department doesn't understand, then you got a definite situation. Now, they make another contention that the enactment has stood there and that is that -- their interpretation has stood there, all of these intervening years and of course it has stood there in these intervening years, but not without controversy. Now, they contend that since Congress has let it there, that we should interpret it in the light that the Government has interpreted it. But there is another doctrine of the law that follows along that, that the Congress pays attention to what the courts are deciding on the same subject, so we have parent -- parent thoughts that are running along parallel one to another. And of course, if that is true, if the Congress pays attention to that, they will find that the Tax Court was making decisions more or less supporting the Government's contention while the District Courts were not doing it. And it is only recently that it has got into the circuits. So that I don't see how you can come to any conclusion that might go to another proposition that the Internal Revenue Act is a very hot subject. And Congress is constantly saying we will -- we will examine, we will examine it, but they don't. At least they do not go into it in the very thoroughgoing manner and next November 5th, theoretically for about the eighth or ninth time, we are supposed to have a further thoroughgoing revision or study of the Internal Revenue Act. But we'll have to see how thorough that is, but you can't give any great conclusion from that. Now, let's go to the cases. Well, when this first came up, I made a very thorough digest of the cases and what did I find? I found out that there was absolutely no meaning in any of the cases. In other words, the cases were about something else. They were about fraud. They were about technicalities. They were about bookkeeping. And then at the very end of the decision, the Court would say, “10% penalty inflicted, 6% penalty inflicted.” No meaning, no explanation, no reason why. And to show you that that is so even in the decisions, let's take the Sixth Circuit. The Sixth Circuit on three occasions, sustained the double penalty, the 10% and 6%, and then reversed themselves in the instant case. So this was called to there attention in the Patchen case, which was decided after the instant case. So the Court took a look why they did this and they looked at the records and they found out that it was in the pleadings, but not in the briefs and counsel didn't argue it, so as a matter of course. And therefore, that means nothing. Now, let's get down to the instant case. The Government attacks, be it 767% in one year, 83% in another and I was objecting. And the Government's contention was that they had a right to tax even though it was confiscatory, even though it was destructive, even though it was excessive. Now, that is a quotation not from me. They were -- are not words that I pulled out, but they were the substance of the Government's brief. And they were adopted by the Tax Court. And when the thing was argued in the Circuit Court, they repeated that contention.
Earl Warren: We'll --
Fred N. Acker: And --
Earl Warren: -- recess now.