Earl Warren: No. 13 Steven R. Wainwright petitioner versus City of New Orleans. Mr. Wulf, you may continue your argument.
Melvin L. Wulf: Mr. Chief Justice, may it please the Court. Mr. Justice Fortas raised the issue yesterday which I want to clarify, reexamine the record or the question exactly when the arrest for vagrancy took place. It appears without any dispute in the record, that the arresting officer made the arrest of vagrancy on the street and specifically, explicitly told the petitioner on the street that he was arresting him for vagrancy. That appears on the record at the BE 168-169 and again at BE 148. I argued yesterday that the arrest was unlawful, if that so caused the search itself consequently unlawful. Even if the arrest is found by this Court to be lawful, though we don’t concede that it was, we still contend that the search was nonetheless unlawful for several reasons. First, it doesn’t satisfy the requirements for a search incidental to an arrest and that’s so whether or not the arrest is found to be either for vagrancy or for murder. Search is incident to arrest of unjustified on only two grounds. One, to prevent destruction of evidence that might be in the possession of the suspect and in this case the only evidence they’re looking for was a tattoo which is not susceptible to destruction. And the second reason is to seize any weapons which the defendant might have in his possession which could endanger the arresting officers.
Potter Stewart: What search are you’re talking about?
Melvin L. Wulf: I’m talking about the attempted search on the street and the actual search in the police station, Your Honor, the forcible search in which they --
Potter Stewart: What search?
Melvin L. Wulf: The attempted search of Wainwright’s body --
Potter Stewart: The request for him to raise his -- to (Voice Overlap) --
Melvin L. Wulf: To take off his jacket and to see whether his arm has tattoo.
Potter Stewart: Right. Do you think that comes within the conventional contour to the search in the constitutional meaning of the word, do you?
Melvin L. Wulf: I think it does and I think that the -- we have support for that in Schmerber, where Schmerber spoke about two -- they spoke of invasions of the body but it seems to be a matter of degree of the right to privacy that’s being invaded. But I think drawing upon Schmerber that the search -- the identification of an individual on the circumstance of this case is protected by the Fourth Amendment.
Potter Stewart: Schmerber hardly wins your case for you, does he?
Melvin L. Wulf: I think I can draw upon Schmerber for support the proposition that the police here before they search Wainwright should have gotten a search warrant. Schmerber --
Potter Stewart: Before the police can see the man if he has a wooden leg or blue eyes that they need to get a search warrant?
Melvin L. Wulf: Proceeding on the substantive search is, that the arrest is valid in the first place.
Potter Stewart: What apart from the arrest?
Melvin L. Wulf: I would think that if there is time and if there is no danger as there was in Schmerber of the evidence anticipating or disappearing that the -- in the interest of the right to privacy that the police officer should be required to get a search.
Potter Stewart: Quite apart from any questions of an arrest, legal or illegal, do you think a policeman needs to get a search warrant to look at a man to see if he has a beard or not?
Melvin L. Wulf: Not to make an observation of that sort which appears right on the visible surface of the body.
Potter Stewart: This tattoo or not, was on the visible surface of his forearm, was it not?
Melvin L. Wulf: It shows, except that it was covered up by clothing.
Potter Stewart: You’ll have a little difficulty saying that this is a search in the constitutional meaning of that word, the Fourth Amendment meaning. Do you have any cases outside of Schmerber?
Melvin L. Wulf: No sir, I don’t.
Abe Fortas: What’s the implication of your argument with respect to the lineup? Would you take the position that requiring a prisoner in a lineup or persons in a lineup to take off their jacket or put on their jacket or take on -- taking off their hat or put on a hat, that that’s an unlawful action by the police in the lineup?
Melvin L. Wulf: That’s so vague -- I don’t think I can -- I don’t think I can argue that, Your Honor.
Abe Fortas: I shouldn’t either and I wonder how you distinguish the present case from it.
Melvin L. Wulf: Well I make a different argument in the premise non-vague having to do with the denial of right to counsel to Wainwright in this case. That underway he should have been entitled to counsel. I move away in that argument from the search argument.
Abe Fortas: Well, I understand that but unhappily that perhaps for it for your present argument that not all that way it says. If the police may require a prisoner, a person who has been arrested to remove his jacket for purposes of a lineup without getting a search warrant, how do you defend your position in the present case in that respect?
Melvin L. Wulf: With some difficulty, Your Honor, I confess except in the circumstances of this case, I do proceed on the assumption that the arrest itself was illegal and absent that I confess, I would be hard pressed to make the search warrant argument but in the circumstances of this case, I would think that it would have been better and more constant with the Fourth Amendment for the police officers to secure a search warrant to effect the search which he had to be done forcibly.
William J. Brennan, Jr.: I suppose it could accomplish the same result, did it not, by making a man change from his street pose to prison garb?
Melvin L. Wulf: In a practical sense, yes.
William J. Brennan, Jr.: In a practical sense.
Melvin L. Wulf: They would have -- if that was standard practice in the police station.
William J. Brennan, Jr.: Yes.
Melvin L. Wulf: I suppose in the course of his changing of clothes that they would have made the -- they would have been able to see whether the tattoo was on in his arm. But that apparently was not a standard practice in (Voice Overlap) --
William J. Brennan, Jr.: (Voice Overlap) I don’t know if I’m sure or not but is it not rather a common practice when a man is taken to jail to have him remove his clothing and put on the standard garb that they use in the prison?
Melvin L. Wulf: I don’t think that’s so -- I don’t know but I don’t think it so in city jails.
Thurgood Marshall: Mr. Wulf, is it true that the bounce “bounced the policeman after all?"
Melvin L. Wulf: As testimony in the record to that effect Your Honor, except.
Thurgood Marshall: Is it disputed?
Melvin L. Wulf: Well --
Thurgood Marshall: In the record?
Melvin L. Wulf: It’s disputed by the police lieutenant in charge of the police station.
Thurgood Marshall: You said he didn’t see it?
Melvin L. Wulf: He said he didn’t see Wainwright kick anyone. He said, he didn’t do -- this is the police lieutenant speaking. He said the question. He didn’t do anything but tried to hold the jacket on. And so they tried to take it off and he was trying to keep the jacket on. Question, he held very still? Answer, no, it was a struggle. Did he strike out of the officers? Answer, no. Did he kick the officers? The lieutenant then said, he didn’t see he could have, it wasn’t visible to him.
Thurgood Marshall: Don’t we have two court findings that he did bounce them off the wall?
Melvin L. Wulf: Well we have two court findings that the officers were bounced off the wall.
Thurgood Marshall: What do we do with that?
Melvin L. Wulf: What we do at that is that the next argument of course is that Wainwright, if the arrest and search was unlawful, that Wainwright had a right to resist the search. If that right is recognized then he also had the right to use the necessary amount of force to resist the search or and I’m not (Voice Overlap) --
Thurgood Marshall: Including the bouncing them off the wall?
Melvin L. Wulf: Pardon sir?
Thurgood Marshall: Including bouncing them off to the wall?
Melvin L. Wulf: Well that would require determination of whether under the circumstances the kind of resistance that Wainwright put up was or was not reasonable. But he did have five officers on him trying to remove his -- trying to remove his jacket. Under the circumstances, I suppose inevidently there was going to be some motion between the five officers and Wainwright himself in trying to resist the -- their taking his jacket off.
Potter Stewart: Mr. Wulf, as the large underlying issue in this case, in your opinion, whether or not a person has a right to use self-help against agents of the government when those agents violated constitutional right?
Melvin L. Wulf: Yes sir. That is one of the principle issues.
Potter Stewart: In other words, the police should take me into custody and take me down the station house and begin asking me questions in violation of my rights under the Miranda Case? Do you think I would have a right to punch the policeman on the nose?
Melvin L. Wulf: No, Sir under those circumstances, I don’t think that would be a reasonable amount of force to think they have a right to refuse to speak. I don’t think you have a right to assault the police under those circumstances.
Speaker: He bounced a couple of police off the wall if assuming I was able to do so.
Melvin L. Wulf: Under the circumstance of the -- in your interrogation hypothetical, no, no, because that wasn’t the question of the police applying any physical force to him. If it’s a questions (Voice Overlap) --
Potter Stewart: But by hypothesis, they’re violating my constitutional rights let’s say --
Melvin L. Wulf: But that doesn’t --
Potter Stewart: As laid out in Miranda Case.
Melvin L. Wulf: I make no argument at all that the mere violation of constitutional rights gives the victim the right to use any kind of physical force at all. That’s no part of my argument or whatsoever. My argument is where there are physical hands laid on the accused or defendant whatever he may be. And the police are trying to make an arrest or a search which requires their physical -- (Voice Overlap) --
Potter Stewart: Let’s assume he has a right to say, “No, don’t search me.” And then let’s assume the police continue the searching. At that point, he has a constitutional right to bust him in the face, is that right?
Melvin L. Wulf: If it’s necessary to resist the assault by the police, yes.
Potter Stewart: I’d thought that the various legal devices which we as lawyers know about, the exclusionary rule, right of action under the Federal Civil Rights of legislation and so on where -- a civilized society had substituted for physical force.
Melvin L. Wulf: I don’t disagree, Your Honor. I think that in some circumstances, I think it’s going to be in a very small number of circumstances. The kind of invasion against a particular sensibilities of the individual are inevitably going to result in his resentment and use of physical force to resist what he believes, and he does at his risk for it, where he believes to be an unlawful arrest or seizure. And I think it’s inevitable that this is going to occur from time to time. I don’t recommend it, sir. I do defend it.
Lewis F. Powell, Jr.: In your basic question in this case whether the man was properly arrested for vagrancy initially --
Melvin L. Wulf: That lies at the bottom of the argument, yes, Your Honor.
Lewis F. Powell, Jr.: Very well.
Hugo L. Black: (Inaudible)
Lewis F. Powell, Jr.: In fact, the State of Louisiana recognizes the right to resist.
Hugo L. Black: (Inaudible)
Lewis F. Powell, Jr.: Yes sir.
Hugo L. Black: (Inaudible)
Lewis F. Powell, Jr.: I’m afraid so, except for our last argument which is denial of counsel argument which could stand quite apart from the right to resist the argument. Yes, but otherwise I think it would be based on it.
Earl Warren: Mr. Seither, or is it Seither or Seither?
Richard C. Seither: Seither, sir.
Earl Warren: Mr. Seither, you may proceed with your argument.
Richard C. Seither: Thank you Mr. Chief Justice, may it please the Court. It is the view of the City of New Orleans that the matters, enlarged matters that the Court has asked the city here today on the Fourth, Fifth and Sixth Amendments. And we will try to eliminate any consideration of the Fifth and Sixth Amendments summarily. Now, it is significant in the city’s view that enlisting authorities, the American Civil Liberties Union which submitted an outstanding brief, professional brief obviously written by professional lawyers in a professional manner, listed the Fourth and Sixth Amendment and did not cite in its list of authorities of Fifth Amendment. I am asking this Court to consider the Fifth Amendment in this case only bring it into the case only for consideration. It is important because the Wainwright forces cite Miranda, Escobedo, Gideon versus Wainwright. I’ll take those three cases. First, Gideon versus Wainwright, the Sixth Amendment, this is not that type of Sixth Amendment Case. There is no question that Mr. Wainwright was represented at all times by counsel in the court room. So let’s look at Escobedo and Miranda. There is no question, there are no confessions here to suppress, no admissions, no statements of anytime. So if then we cite Escobedo and Miranda just in reference to the Sixth Amendment, leave out the Fifth Amendment considerations of Escobedo and Miranda, we’re only citing half of the case. Escobedo and Miranda primarily stands we submit for the introduction of confessions unlawfully obtained and this Court has held. Correctly we think that a denial of counsel at the time when statements are made, would then rule out on the Miranda and on the Escobedo any incriminatory statements. We bring the Fifth Amendment into this case to say there are no incriminatory statements. There never were any statements. There never were any confessions entered into this case. So Gideon versus Wainwright, Escobedo and Miranda go out of the case. And we’ve met this issue head on. We don’t want to cite the effective date of Escobedo and Miranda. We wanted to meet the issues of Escobedo and Miranda, if Your Honors please. Now let’s go to the Fourth Amendment. The Fourth Amendment, all cases cited have to do with the suppression of illegally obtained evidence. There is no illegally obtained evidence. There is no evidence, physical, real, and any other kind of evidence in this case for the Court to suppress. There was never any offered that could not have been any offered. There was never any sought. The facts of this case are that a man was found murdered on October 3, 1963 Or rather he was -- the date of the murder was fixed at October 3rd, but his body was not found until October 6, 1963. Mr. Wainwright was not arrested until October 13, 1963. Mr. Wainwright was arrested because he thrice walked away from investigating officers who told him not to do it after he tried to do it the first time. They told him specifically. They were in the course of investigating a murder. They told him. They showed him. Came out a composite picture from the murder, they said, “You resemble this man. All we want to do is question you in relation to this case. And when we ask, we don’t want to arrest you.” They even told them that. “We have a perfect out for you. The man we are seeking has a tattoo on his left forearm, on to raise hell. Bare your left forearm and go on about your business if you don’t have this tattoo on your left forearm.” Now, there is no doubt when I say bare your left forearm, they didn’t just ask him to do this, although there were some people who believe, the testimony has a little shake on it. There’s no question. They did ask him to remove his jacket, for all purposes of observing this left forearm. At no time was he ordered to remove his jacket. I say this especially in answer to your question yesterday, Mr. Justice White. If this man was charged with resisting arrest and he was, under no time, I mean resisting an officer, never was he charged with resisting arrest. And it is a very important distinction here that we must draw. But at no time was he arrested for resisting an officer in a sense that he resisted an order of the officers to take off his jacket. He was never ordered to take off his jacket at the Bourbon Street scene, the arrest scene. He was requested to remove his jacket so they could look at his left forearm to see if he had a tattoo. And if he didn’t have a tattoo, he could go on abide his business.
Thurgood Marshall: Mr. Seither, what’s the difference between two police officers asking a citizen to do something and ordering him to do something?
Richard C. Seither: I think it’s crucial, Mr. Justice Marshall.
Thurgood Marshall: That’s why I like to know what it is.
Richard C. Seither: In the sense that had he been ordered to remove his jacket and refused, then he could have conceivably been arrested for resisting an officer. By resisting an officer’s order which I believe is a point Mr. White raised yesterday.
Thurgood Marshall: Do you take possession of the policemen doing him a favor?
Richard C. Seither: The police were trying to. The whole testimony reads to that. The police, I have the actual testimony if you want me to read. It’s in the record. It’s in the transcript of the case and at this point --
Thurgood Marshall: Does the favor go up to the point of arrest and then take him to the precinct?
Richard C. Seither: Not because he failed to bare his jacket. That is a crucial --
Thurgood Marshall: I want to know when we pass from the police doing him a favor.
Richard C. Seither: We passed from a point of doing him a favor when he deliberately walked away thrice, three times from the officers when they were investigating. It is most important to this case.
Thurgood Marshall: I thought you said that when he walked away, he was already under arrest.
Richard C. Seither: No sir that is precisely the point, Mr. Justice Marshall that I want to stress in this case. I believe that the Wainwright forces have been trying to establish and I don’t blame them. If I were on the defense side, I’d be doing it too. That he was first arrested fro vagrancy.
Thurgood Marshall: Wasn’t he?
Richard C. Seither: No sir. No Mr. Justice --
Thurgood Marshall: I thought there was testimony in the record by the officer that he was arrested for vagrancy. (Voice Overlap) --
Richard C. Seither: No Mr. Justice --
Thurgood Marshall: Where is that in the record? I thought Mr. Wulf has said that.
Richard C. Seither: He has said it but it’s not so.
Thurgood Marshall: Where is it?
Richard C. Seither: Well --
Thurgood Marshall: I thought Mr. Wulf gave us a citation to the record. I didn’t make a note of it or what page.
Richard C. Seither: Even the Civil Liberty speech is in this document. There is no question in the blue book, it’s here, B168, 169. Your Honors, please I direct your attention to page 148 in this blue book which is the response brief of the City of New Orleans. At page 148, Defense Counsel Mr. Spencer asked the officer, the first charge against him was what? All three were put on at the same time. What did you arrest him for first? Answer, vagrancy violating, and resisting an officer. Those are together. At what point did you charge him with resisting an officer? The charges were all brought at the station. You arrested him on Bourbon Street? What did you arrest him for? Answer, Resisting an officer and vagrancy by loitering. How did he resist you on Bourbon Street? By attempting to walk off.
Thurgood Marshall: I would go a little deeper than that with Officer B-O-E-P-P-L-E --
Richard C. Seither: Boepple? I believe it was Boepple that I was saying. That is Officer Boepple. Your Honor, please what I was citing.
Thurgood Marshall: It says here, have you discussed this case with any officers involved since May 7th? No sir. You didn’t discuss it with the same attorney? You haven’t advised Mr. Marbelo or Adison as to what your testimony was? I believe you stated that you put defendant under arrest. He started to walk away and that is why you charged him with a resisting arrest. Answer, As he attempted to walk off from us, yes. Question, You had already informed him he was under arrest? Yes. Did you inform him as to what he was under arrest for? Answer, Vagrancy by loitering. Question, What was it he did that constituted loitering in your opinion? We observed him standing in a 600 block of Bourbon Street. The subject had no identification on this person. He couldn’t show us anything. What was it that constituted loitering? Observed him standing in the 600 block of Bourbon Street. I tried to get some identification. He would not show us any. He said he didn’t have any to show. We questioned him about what he was doing there. After some reluctance, he said he was going to a restaurant to get something to eat. Was there anything else that led you to believe he was guilty of loitering? And the Court said that objective now. That would indicate. It seems to me that he was arrested for vagrancy. And when after that he was arrested for vagrancy, he started to walk away. Now, how can you reconcile this testimony to what you have just said that he was arrested for all of these things at the police station?
Richard C. Seither: I can reconcile, Your Honor please by reading what I just read from the same officer under different circumstances. I believe a close reading of that will reveal a tremendous amount of testifying by the defense attorney who is putting words in his mouth. When this man was (Voice Overlap) --
Thurgood Marshall: Was he entitled to put words in his mouth of the opposition witness?
Richard C. Seither: No sir, I don’t think so. That’s my objection to it. I do know that (Voice Overlap) --
Thurgood Marshall: Have you had asked him some leading questions?
Richard C. Seither: Sir?
Thurgood Marshall: You’ve had asked him leading questions on cross-examination?
Richard C. Seither: Certainly. Certainly we’d do that everyday.
Thurgood Marshall: Isn’t that what he was doing here?
Richard C. Seither: He’s asking leading questions but he’s putting into his mouth words that he arrested him first for vagrancy, because here, he said which charge? The first charge against him was what? He said all three were put on at the same time.
Thurgood Marshall: No, he didn’t say that here.
Richard C. Seither: At 148 he says, Your Honor, that it’s the same man.
Thurgood Marshall: In 159, he doesn’t say that.
Richard C. Seither: No sir, Your Honor, please it’s the same man testifying under different conditions of the same set of facts. And all the way through, all the way through, the --
Thurgood Marshall: I don’t want to argue. I just want to ask you the question about -- .
Richard C. Seither: I didn’t mean to argue, Your Honor please I’m just citing (Voice Overlap) even the Civil Liberties, you need in there splendid brief said that the matter, it’s undetermined as to which he was arrested for first. Now, that’s in the brief that was submitted by Civil Liberties Union. Now it is my position that there is no question that the trial lawyer was trying to make out a case of -- you mean you’ve had an arrest to this man for vagrancy first and now you charge him with resisting an arrest that had not been made yet? And when the police officer said that it was close, we don’t know which came first. We arrest him all three simultaneously, it looked at that point as a very strong position for Mr. Wainwright because throughout this the early proceedings of this case, they persisted in calling this a charge of resisting arrest. And the city has shown, and will show and that record shows, and the exact transcript for this, the man was charged with resisting an officer. He was arraigned for resisting an officer. The original affidavit which is in the record is on resisting an officer. He was tried for resisting an officer Mr. Justice. So it is (Inaudible) to the case. There is one other thing why this is so important to me. To me, it’s the most important part of the case, sir. I direct this especially to Mr. Justice Douglas. There is not a man in this Court room, Mr. Justice Douglas, who is more concerned personally or more in agreement with you when you said in that 1951, I think it’s a Carignan Case, that is the time audit system of the police to arrest a man for vagrancy, or for a lesser charge, so they could investigate a greater charge. There is no community in the nation who agrees more with that, that it’s a wrong practice. With me personally, it’s a very important matter because there’s a lot of guilt that attaches. I was running the -- well the complaint desk for Mr. Leon Hubert between 1954 and 1956. And there is no doubt that prior to 1957, we charged everybody with 107 vagrancy pending investigation of everything from murder to rape, to incest, to petty larceny but the difference, it has not been done since 1957. I have made part of my response brief, an actual copy of the order put out by the police in 1957. Mr. Hubert and I were instrumental in doing this. We searched it out. We realized we were wrong. We saw the error of our ways. And so we came in with this order, police order, which says effective in August of 1957. There will be no more arrests on vagrancy pending investigation of anything. And when you take the charge of vagrancy, it must stand on its own feet. And what did we do in this case? The thing that might be overlooked in this matter, since I was part and parcel of this bad system, if we charge a man with 107, pending investigation of murder, armed robbery, burglary, what not, if he were cleared on the burglary charge, the armed robbery, the 107 went out the window, we threw out the vagrancy charge. That did not happen in this case. Mr. Wainwright was cleared as a suspect in this murder the very morning of his arrest. And yet the city persisted in prosecuting him on vagrancy. The city persisted in going to that one resisting an arrest -- resisting an officer? These were not holding charges. As long as I am in the City of New Orleans, nobody will ever again take a lesser charge for purposes of pending investigation of a greater charge without running into a fight with me. As Mr. Hubert and I, Jim Garrison he was part of that office, just beginning. We all knew this was wrong. And when we realize the error of our ways, we did away with it. It was not done in this case, Mr. Justice and I want to assure you that it was not done in this case.
Abe Fortas: What acts of vagrancy did he commit?
Richard C. Seither: Alright --
Abe Fortas: He was admitted. He was arrested for vagrancy. What acts of vagrancy did he commit?
Richard C. Seither: Well, one thing when the police passed by and saw him resemble a suspect in murder of Johnny McTailor whom we were looking for, they stopped their car, backed up and went to talk to him. Civil Liberties people make a lot out of the fact that he was only observed for five seconds. There is no controversy on that evidence. The police said we were passing by. We saw this man he was standing there. They don’t know whether he was standing there for an hour or five seconds. They saw him for five seconds before they went over to talk to him. Now, when they went to talk to him, they told him about the tattoo, etcetera. And even then, this is important. Had he had a tattoo on his arm, it would not have been incriminating. Murders are not committed --
Abe Fortas: That’s getting off of vagrancy.
Richard C. Seither: All right, sir --
Abe Fortas: What I’m interested in, what acts of vagrancy did he commit?
Richard C. Seither: All right, the act of vagrancy was he’d looked like a vagrant. He acted like a vagrant. His demeanor was that of a vagrant. He had no identification on him. He said he was going to --
Abe Fortas: How would you address like a vagrant?
Richard C. Seither: Well, shabby clothes.
Abe Fortas: Shabby clothes?
Richard C. Seither: Yes sir, he look like a --
Abe Fortas: Have you ever been around the university or college?
Richard C. Seither: This was not around a university, Mr. Justice. This was down the French quarter
Abe Fortas: But it’s a quarter condemned by the public where it’s made by the public authorities where anyone can go.
Richard C. Seither: Well Mr. Justice, we’re not pegging this vagrancy charge strictly on shabby clothes. It’s the overall picture. (Voice Overlap) Shabby clothes, he had no identification on him.
Abe Fortas: Didn’t he tell you to offer he lived and what his business was?
Richard C. Seither: That’s important too. It was contended yesterday that he freely gave his name. He very reluctantly gave his name from the minute they approached him. He was very belligerent and uncooperative. They asked him three times.
Abe Fortas: Three times for vagrancy?
Richard C. Seither: It --
Abe Fortas: Is that an element of vagrancy?
Richard C. Seither: I would think so, Your Honor. It contributes to all part of the picture. He was --
Abe Fortas: Have you any cases on that to show that the fact that a man is not cooperative with the police for vagrancy?
Richard C. Seither: I don’t know if it applies of vagrancy, I know we cited the 3141 case --
Abe Fortas: We’re talking now about vagrancy, not anything else. Not into resisting an officer, we’re talking about vagrancy. What acts of his were acts of vagrancy?
Richard C. Seither: He had no identification on it. He had no --
Abe Fortas: He told you he gave you identification. He told you he lived four blocks from there and he told you to go there.
Richard C. Seither: Your Honor, please, every fellow that have arrested without identification and most of them don’t carry it around. They were deliberately say, “If you take me somewhere, I can get my identification.” And the police refused to do it. They have orders not to do it. Their expression is, “If I take them there, we might be walking into the mouth of a cannon.” Further, he had no draft card on him. The man we were looking for was 8WOL from the Armed Services Mr. Johnny McTailor, the man whom he would show on the composite picture of him, said you resemble. He said he was going to eat yet he had scarce funds on him. The police told me he didn’t have enough --
Abe Fortas: How much did he have on him?
Richard C. Seither: I don’t know Your Honor. I’m only saying what the police told me that he didn’t have enough to eat on. He had no identification, no draft card there was of draft age. His attitude, all this put together would make out of good case of vagrancy. And again, though you say this is digressing from vagrancy, I mean to say put the whole the picture together and the actions of Mr. Wainwright will precisely the actions that you would have expected of a man who was wanted for something. Now as regards --
Thurgood Marshall: May I ask you one question? After doing all of this and demonstrating that he was a vagrant and everything else in your book, if he to pull up his sleeve, would he have been arrested for vagrancy?
Richard C. Seither: No sir. Because at that stage, he hadn’t been investigated. He hadn’t -- it hadn’t gone that far yet.
Thurgood Marshall: Was it vagrancy?
Richard C. Seither: Yes? I make --
Thurgood Marshall: If he’d showed his arm he wouldn’t have been arrested for vagrancy?
Richard C. Seither: If he had shown --
Thurgood Marshall: Is that right?
Richard C. Seither: Well Your Honor, I’m trying to answer, if he had shown his arm, according to the testimony of the arresting officers, the matter would have ended summarily.
Thurgood Marshall: Well suppose before they took in into car, he had shown his arm.
Richard C. Seither: That would be the end of the case.
Thurgood Marshall: What, he was a vagrant wasn’t it?
Richard C. Seither: Yes, but dropped everything, it would drop all the (Voice Overlap). Sir?
Thurgood Marshall: He did violate the argument by being vagrant?
Richard C. Seither: I misunderstood your question. The --
Thurgood Marshall: You said that with all these things he did, he was sufficient to justify his arrest for vagrancy.
Richard C. Seither: And for resisting an officer.
Thurgood Marshall: And resisting an officer.
Richard C. Seither: Yes, Your Honor.
Thurgood Marshall: My question is, if it’s a bitter end before he was put in the car, he had shown his forearm, he would not have been arrested?
Richard C. Seither: Oh no. He had already been arrested for those and approved it.
Thurgood Marshall: Would you have taken him into the precinct?
Richard C. Seither: Positively and we would have take him into Court and approve it. That’s precisely what we did, Mr. Justice.
Thurgood Marshall: What’s that?
Richard C. Seither: He was cleared that very morning of any link with the murder case and yet we persisted. We took him to trial on vagrancy and resisting an officer.
Thurgood Marshall: But I’m saying, you still say that if he showed his arm at the very end, you would have let him go?
Richard C. Seither: For what? We would have let him go -- and when you say at the very end, at the very end of what? Before he was placed under arrest?
Thurgood Marshall: Before he was put into the car.
Richard C. Seither: Oh no. Once he was placed under arrest for resisting an officer and for vagrancy, the city had every intention of persisting in that and they did persist in it. That is my point, Your Honor.
Thurgood Marshall: What was the purpose in stopping him?
Richard C. Seither: Purpose in stopping him was to see if he were the Johnny McTailor who was wanted for murder.
Thurgood Marshall: And if they found out that he was not?
Richard C. Seither: As the judge found in the criminal district court, if at that point he had just said, “This is my left forearm (Voice Overlap)”, go on about your business. But once they had -- sir?
Thurgood Marshall: I’m trying to get the timing on this. At what time would he had been caught free?
Richard C. Seither: I think this is the answer that you seek, Mr. Justice. Had he shown his right arm? As soon as they said, “Look man, we don’t want to arrest you. We got a picture here, you are -- we got to out, perfect out. The man we are searching for has a tattoo upon the (Inaudible) on his left arm. Would you remove your jacket and let us see your left arm?” He didn’t remove his jacket. He refused to do it. So they went on investigating for another four minutes. It was not as he said, “Our stop is a suspect for murder and put vagrancy at you.” It was then after four or five-minute interrogation that he was charged with resisting an officer and with vagrancy. Now if at any time before he was booked, I mean charged, arrested for vagrancy or for resisting an officer, he had shown his arm, the matter is over. Once he was arrested for resisting an officer and for vagrancy, the matter wouldn’t have ended no matter what he did because we did find out (Voice Overlap) –
Thurgood Marshall: You know Bourbon Street pretty well (Voice Overlap). About how many people are there at a time on Bourbon Street dressed just like you?
Richard C. Seither: Not too many. This was 1963. This was before the hippies had invaded New Orleans or (Inaudible) or whatever the mold of the moment is, long before that. He was not stopped because of his attire, primarily he was stopped because he resembled this man wanted in murder.
Thurgood Marshall: Did you see him with the same clothes on before you stopped him?
Richard C. Seither: I beg your pardon?
Thurgood Marshall: Can’t you say his clothes are part of his vagrancy charge? That’s my problem.
Richard C. Seither: I’m saying putting the whole thing together, Mr. Justice made out of case of vagrancy.
Abe Fortas: Suppose Mr. Wainwright had been extremely well-dressed and a $156 in his pocket. And the identification card showed and demonstrated that instead of going to the law school, notorious behavior, lots of vagrants do that. Instead of going to the law school, he was honestly employed somewhere. But suppose that he looked exactly like Johnny McTailor, the police had a picture of Johnny McTailor, when they saw this well-dressed fellow walking down the street. They went up to him and they said, “Will you remove your jacket so we could see if there is a tattoo on your arm?” And he said, “No.” Now what could the police have done other than -- let’s assume that I wasn’t wrong but just for this question let’s assume he is wrong for the charging with vagrancy.
Richard C. Seither: They positively would not have charged him with vagrancy.
Abe Fortas: That’s right because he look behind. But let’s suppose that -- well what could they have done then? Now he says, “I’m not going to remove my jacket.” It’s an impolitely kind of a exposure that I being an employed gentleman and not employed law student don’t believe him. What could he have done?
Richard C. Seither: On that particular set of facts alone Mr. Justice, I submit he would not under any circumstances have been charged of vagrancy because he had identification and it was his action (Voice Overlap) --
Abe Fortas: (Voice Overlap) -- it looks like Johnny McTailor, what do they do next?
Richard C. Seither: The next thing they do, if he walked away from the investigation and booked him as they did resisting an officer. And thirdly --
Abe Fortas: Suppose he didn’t and just stayed there?
Richard C. Seither: All right.
Abe Fortas: Just state that.M
Richard C. Seither: Then squarely right down at the point about the murder, they could have arrested him as a suspect in murder. I say. Now this is not arrest on suspicion. It is not suspicion alone if they wanted to arrest this man on suspicion alone. As soon as they saw it, they got out of the car and say, “Hey, you look like this murderer. We arrest you for murder.” But they didn’t do that. (Voice Overlap) --And when he refused Mr. Fortas, nothing happened. It’s not just a hypothetical case. This is precisely what happened here. When this man refused to bare his left forearm, they did not summarily arrest him and put him in jail. They then continued to interrogate him.
Abe Fortas: You just stay with me for a while.
Richard C. Seither: I’m sorry.
Abe Fortas: They might have arrested him and booked him for murder.
Richard C. Seither: Yes, Your Honor.
Abe Fortas: And then he would have had a chance to say, well I’m not -- sometimes, you’ll let the man have a chance to demonstrate that he is not Johnny McTailor by taking off his jacket and no matter how much made him shudder exposing his left forearm.
Richard C. Seither: How much what -- I didn’t hear to how much and made him what sir?
Abe Fortas: Shudder, shudder, how much you examine that, I mean to engage the man in a decent act of exposing his left forearm instead of exonerating himself by doing it, is that right?
Richard C. Seither: Yes, Your Honor.
Abe Fortas: So then what you come down to here perhaps is the question of whether in those circumstances the police can arrest a man on what he’s arguably opposing charge of vagrancy.
Richard C. Seither: No sir. That is what I want to stress Your Honor please. We don’t do that in New Orleans because that would amount to vagrancy pending investigation.
Abe Fortas: I heard what you said. You don’t do that in New Orleans. But here, they arrested him for vagrancy. Let's suppose that it isn't for (Inaudible) charge and what I'm suggesting is perhaps at issue here is that it changed the facts as I've indicated or elucidate facts the way I've tried to do it. The question is not whether that was the cause of his arrest but whether he was arrested on a charge that was not justified in the circumstances.
Richard C. Seither: I appreciate the question, Your Honor. And we say that was not done. We say it was done because he was charged of resisting an officer, for walking away three times. We tried to make out a guess at the composite picture made out of case of vagrancy. As a matter of fact, it was not, this is the one thing that's most important to us. If we charge him with vagrancy under the circumstances that presented here today, then I couldn't face you and say it, we are not charging people with vagrancy pending investigation or something because that's precisely what would have had happened. But in this case, we persisted in the charge. Now the one important thing in the old days when we did this wrongly, as soon as the man was cleared as a murder suspect, the vagrancy went out the window. That didn't happen here. We thought we had a good concrete charge of vagrancy. We took it to court. We tried it. We also did the same with resisting arrest, of resisting an officer and he was convicted. And the judge of the Criminal District Court, our appellate court even reversed this on resisting an officer but does he fell for the argument that it was resisting arrest, and had he been not placed under arrest first for vagrancy. Then how could you resist an arrest that wasn't first made. And so it looked very strong for American Civil Liberties Union when they brought out in the testimony, in this Court I'm talking about, Your Honor please. The second time, the second go around of Officer Beopple, when they said, “Which did you do first?” He said, “I did all three simultaneously.” So this is very strong to defeat the resisting arrest article because if he had not been arrested first for vagrancy, then how can he resist an arrest that had not been made yet. And so --
Hugo L. Black: (Inaudible)
Richard C. Seither: It's general --
Hugo L. Black: (Inaudible)
Richard C. Seither: I've cited that, Mr. Justice, the Astriago (ph) Case, New York Case which is in the brief from which the Judge --
Hugo L. Black: (Inaudible)
Richard C. Seither: And I don't think that happened here. He was not arrested --
Hugo L. Black: (Inaudible)
Richard C. Seither: For refusing to reveal his arms.
Hugo L. Black: (Inaudible)
Richard C. Seither: It's resisting an officer if the first time he walks off, they step in front of him and stop him and say, “We're investigating you. We want to inquire in to this matter. Don't walk off anymore.” And he walked off twice subsequently. If he can do this, then police power in the nation is gone. The person being interrogated can decide, as this man did unilaterally -- what the police can investigate, what they can't, what they can do, and I believe that --
Hugo L. Black: (Inaudible)
Richard C. Seither: I believe Your Honor preference for all this by saying hypothetical case that there was no probable cause. We think there was a probable cause. But that I suggest Your Honor that the Astriago (ph) Case in New York held that suspicious and (Inaudible) conduct is sufficient grounds for making an arrest and that is besides -- sir?
Hugo L. Black: (Inaudible)
Richard C. Seither: That said to arrest the felon and the man we were seeking out was a man suspected of committing murder in the community. Incidentally Your Honor, this is significant I believe, we've since arrested and cleared everybody in this case. We've arrested 15, 20 people perhaps.
Abe Fortas: For vagrancy?
Richard C. Seither: No sir. None of them were put to vagrancy for pending investigation of anything.
Earl Warren: I was wondering you keep saying that if they just raised his jacket, it would have been all right, but the police ordered him to take it off.
Richard C. Seither: No sir. The police requested him to take it off --
Earl Warren: Alright, the police requested to take it off. Now suppose that tattoo had been in the place that was covered by his trousers, could they have requested him there to take his trousers off to see if he had one and have that mark and if he didn't, could they have arrested him for vagrancy?
Richard C. Seither: Yes, not for vagrancy. Your Honor, we keep bringing back --
Earl Warren: But he was arrested for vagrancy, that's the thing of it.
Richard C. Seither: Mr. Justice, he wasn't arrested. He wasn't arrested for a straight charge of vagrancy. That man was arrested simultaneously just as much for walking away from the scene. That is what he was arrested for. We thought we had a good vagrancy charge. There is no conflict between being a murderer and a vagrant because vagrancy had been known to commit murder and murders had been known to be vagrancy. The only --
Hugo L. Black: (Inaudible)
Richard C. Seither: It was good.
Hugo L. Black: (Inaudible)
Richard C. Seither: No sir. He was convicted originally for resisting --
Hugo L. Black: (Inaudible)
Richard C. Seither: Present conviction is for butting people around the wall. And --
Hugo L. Black: (Inaudible)
Richard C. Seither: That's what I think, except that they've got the --
Hugo L. Black: (Inaudible)
Richard C. Seither: Because I was asking the questions Your Honor. I didn't want to even go into that.
Hugo L. Black: (Inaudible)
Richard C. Seither: No sir. I have -- I was forced into --
Hugo L. Black: (Inaudible)
Richard C. Seither: Why don't they work?
Hugo L. Black: (Inaudible)
Richard C. Seither: That's precisely our case. That all the other things had nothing to do with the fact that he stands convicted up here. I wrote in brief but I say here, the only thing properly before the Court in the city's view is the uncontroverted evidence that this man butted these police officers from wall to wall and say, put himself down like a full bag running through a line and butted these men from wall to wall. That went uncontroverted. This was said in front of Mr. Wainwright in the Court of Law. And when he had a chance to controvert, he took the stand. I know if it would be fairly defective for me to comment on his refusal to take the stand but he took the stand. In his total testimony, it's less than a page, with them making all these statements but he didn't deny anything. That's what I mean when I say it went un-controverted. I agree Mr. Justice White and I have two cases that I wanted to cite when you ask me too. That I think this case goes off on the whole case of 1910. Mr. Justice Marshall raised a question yesterday, the whole case which was reasserted in Schmerber as being the leading case in the considerations in Schmerber. They had made this man model of glass. And since then, I think it has been held repeatedly through the years. I'd like to jeopardize the whole cases where an exploratory search of the body -- if you want to use the word search, is permissible. Certainly, if we could have a bloodletting, Mr. Justice Douglas or an intrusion into the bloodstream to get evidence against a person, we can certainly ask him to remove his jacket for all purpose of search. But the city contends there was never any search made here. When this man refused to take off his jacket, we did not arrest him.
Thurgood Marshall: May I ask you this? Do you take the position that everything that happened on the street is irrelevant in this case (voice overlap)?
Richard C. Seither: No sir.
Thurgood Marshall: Do you think that it is relevant? You put on the testimony, did you not, in order to convict him with that?
Richard C. Seither: I don't know, put on the testimony and convict him at what happened in the street?
Thurgood Marshall: But what happened on the street?
Richard C. Seither: Yes sir.
Thurgood Marshall: Yes.
Richard C. Seither: When I said it was irrelevant to the case, I've got to Mr. Justice White's position that the only thing properly before this Court now --
Hugo L. Black: (Inaudible)
Richard C. Seither: I thought you'd ask me if that wasn't the main point --
Hugo L. Black: Either that is relevant or it isn't --
Richard C. Seither: Alright.
Hugo L. Black: Now what happens on the street in the manner in which he was arrested and what he is arrested, is that relevant or irrelevant to this proceeding here, right here?
Richard C. Seither: The city said in brief that it's irrelevant but the city is willing to meet the issues --
Hugo L. Black: I don't care what the city said. What are you representing to what? So it is or it isn't? So that we can know what your position is.
Richard C. Seither: Alright, and I say it is not. And I say for --
Hugo L. Black: It is not relevant?
Richard C. Seither: It is not relevant for these reasons.
Hugo L. Black: Why didn't you put it into the case now? (Voice Overlap)
Richard C. Seither: It was raised by Civil Liberties and my position in the case was to answer. I didn't bring it up here first today. I was asked these questions, Mr. Justice.
Hugo L. Black: I mean on the file of the case, by the title of his case where he was convicted. Why didn't you show what happened on the street and so forth?
Richard C. Seither: Because he was tried in these matters on the street for what happened on the street.
Hugo L. Black: Yeah.
Richard C. Seither: But --
Hugo L. Black: And he was convicted of that?
Richard C. Seither: Yes sir.
Hugo L. Black: What was he convicted for or what happened on the street?
Richard C. Seither: He was convicted only at the street level of resisting an officer.
Hugo L. Black: Yes. But you went on to show how he was arrested and so forth, did you not?
Richard C. Seither: At the request of the justices up here. (Voice Overlap)
Hugo L. Black: At the trial.
Richard C. Seither: I don't quite understand, Your Honor.
Hugo L. Black: At the trial of the case, did you not prove that this man was walking along the street and then stopped for a few seconds, and they recognized him as being --
Richard C. Seither: Yes, as I have.
Hugo L. Black: Sure, you proved all of that in order to convict him and that's what he was convicted on it (Voice Overlap) --
Richard C. Seither: Yes, Your Honor. And that's strong (Voice Overlap) --
Hugo L. Black: Then isn't that relevant up here?
Richard C. Seither: Yes.
Hugo L. Black: Alright.
Richard C. Seither: Where I said it was irrelevant, Your Honor please. I thought we were in the area of search. In my --
Hugo L. Black: We're talking about the arrest being relevant.
Richard C. Seither: No question. No question, the arrest was --
Hugo L. Black: That's all I want.
Richard C. Seither: I beg your pardon.
Abe Fortas: May I ask you, do we have the picture or (Inaudible) and the other man in the street.
Richard C. Seither: Yes sir. I have here a complete PBI --
Abe Fortas: It was in the --
Richard C. Seither: No sir. There's one, it was -- yes, there was a picture of the same one that's here that was introduced as Exhibit A.
Abe Fortas: Where can we look at it in the record?
Richard C. Seither: I don't know sir. I do know that it was offered in evidence as Exhibit A. I do have it here if you want me to put it into the record. And you see it originally Mr. Justice, I didn't -- I'll put the whole thing if --
Abe Fortas: Is it your position that the city has a right to stop him on the street that he was suspected of a crime, and asked him questions, and if they don't answer, then he can be arrested for resisting an officer?
Richard C. Seither: No sir, it is not my position in that. And as a matter of fact, we've just adopted Mr. (Inaudible) has just drawn up a stop and frisk law which we say, we have a right to stop a man and ask him questions but his refusal to answer question does not justify his arrest. We are saying that he was not arrested for his refusal to answer questions or his refusal --
Abe Fortas: The day he was not investigated.
Richard C. Seither: That's --
Abe Fortas: When did you get in custody?
Richard C. Seither: When he walked away from the interrogation three times --
Abe Fortas: That gets back to the question. Do you have a right to stop him and interrogate him?
Richard C. Seither: Well, and I answer that question affirmatively, Your Honor. I believe if we don't have -- that we do have the right to question, but otherwise, if a police officer wanted to stop anybody for anything, if he can unilaterally decide what he can away from, what inquiries he see can stay then and that --
Abe Fortas: He could until he was arrested -- .
Richard C. Seither: I think so.
Abe Fortas: You can't just stop a man on the street without putting him on custody and proceed to examine this, didn't you?
Richard C. Seither: Well then we're back perhaps to Henry.
Abe Fortas: (Voice Overlap)
Richard C. Seither: I think --
Abe Fortas: I don't know.
Richard C. Seither: Well I don't know either, Mr. Justice. I realized that I'm not speaking up here adamantly; I realized that law is something in which the longer we're in it, the lesser we speak positively. I know, I don't know. I'm only trying to answer the question. I think the Henry Case could be invoked that he was under arrest at the moment he was deprived of his freedom of action.
Abe Fortas: Can you do anything with the citizen until he's put on custody and forcing him to do so?
Richard C. Seither: I think you have to do something before you put him in custody. You have to at least keep him from walking away. Otherwise, he could never be put onto custody.
Abe Fortas: You might be question but he might choose not to answer?
Richard C. Seither: Then he doesn't have to. If we ask him questions and he doesn't answer them satisfactorily, then under the law of Stop and frisk ordinance which we just passed, that is no basis for arresting him and it wasn't done in this case alone.
Abe Fortas: Could you stop and ask him briefly and you say you can't make him answer for that?
Richard C. Seither: That's right sir. Yes Mr. Justice.
Abe Fortas: Then you can't do anything to him if he leaves them while you're doing this to him.
Richard C. Seither: Yes, we could have arrested him.
Abe Fortas: (Voice Overlap) -- if you can't arrest him. (Voice Overlap) I mean you don't have a right to make him answer you.
Richard C. Seither: We can arrest the man for things other than the answers he gives. We could arrest him because he looked just like the man we wanted in murder which is the reason we did it.
Abe Fortas: Can you do anything with him as a citizen until you put him in the custody of the law?
Richard C. Seither: No sir. And there was nothing done with him until he was put in the custody of the law. When he refused to remove his jacket, nothing was done. It was at the station house (Voice Overlap) --
Abe Fortas: Could you stop a man on the street to make him remove his jacket?
Richard C. Seither: No sir. And we didn't do it. We requested him to remove his jacket. When he refused, nothing happened. That is our point and when he got --
Abe Fortas: (Voice Overlap)
Richard C. Seither: Sir?
Abe Fortas: He wasn't in custody then, was he?
Richard C. Seither: No, but even after he was placed in custody on the street, when we charged him with resisting an officer and vagrancy, we still didn't make him do it. We never did order him to do anything until we've got to the precinct station. And there, nothing was done for some 15 minutes. They called the lieutenant. They said, “We know how to handle this.” Lieutenant explained to him before we can -- of course we think legally the whole case, would say if you can examine a person in exploratory search of the body for identifying marks. The whole case says this, Astriago (ph) says it but to answer your question Mr. Justice, as a matter of fact, he was not ordered to take off anything at the Bourbon Street scene. He was requested and when it refused, nothing happened.
Abe Fortas: Why are you saying that I didn't quite get it? How do you say that he is not now convicted and there is no conviction before except for butting his --
Richard C. Seither: Because it was reversed at the District Court level. But the butting of the police --
Abe Fortas: In other words, you say that all we have before us and all we have the right to consider is his conviction for butting his head into the officer's stomach?
Richard C. Seither: I'd say that by way of argument. However, when (Voice Overlap) --
Potter Stewart: That's by way of fact, isn't it? We have two convictions here and only two before this Court, therefore disturbing the peace in the police station by assaulting police officers.
Richard C. Seither: Precisely Mr, Justice.
Potter Stewart: I must say, I've not understand the relevance of any of these. I don't see what the vagrancy has to do with it because we don't have a vagrancy conviction in front of us. And let's just assume, assume without deciding that his constitutional rights were violated as a result of which he found himself in custody in a police station. Isn't the basic issue in this case, whether or not he had the right of self-help as against that violation? Did he have a right to assault those police officers? Those were the only convictions we have before.
Richard C. Seither: I see the case precisely as you stated, Your Honor and I'd say --
Potter Stewart: You haven't said a word about that.
Richard C. Seither: I was asked to answer about vagrancy and arrest. I just said it wasn't as a holding charge but I would say this, the only two matters before this Court are the convictions on assaulting an officer, two officers.
Potter Stewart: As a matter of argument, a theory that's a matter of fact, those were the two convictions which we're asked to review.
Richard C. Seither: I've said that repeatedly Mr. Justice, throughout the brief. And today I would have said it but I was interrupted to go into the vagrancy by means of pending investigation.
Hugo L. Black: What happened to the other charge?
Richard C. Seither: Resisting an officer, he was convicted of it in the Municipal Court -- when it went to the Criminal District Court, I meant Judge Thomas Brahney reversed resisting an officer because he said --
Hugo L. Black: That is out.
Richard C. Seither: That is out. And so the only matters probably before this Court in the view of the city are the convictions, two convictions of assaulting two police officers in the station. And that testimony went un-controverted.
Hugo L. Black: That depends on the evidence with reference to assaulting the police officer.
Richard C. Seither: Yes, Your Honor.
Hugo L. Black: In the station.
Richard C. Seither: Yes, Your Honor.
Hugo L. Black: Is that the only charge of resisting an officer that was in the trial?
Richard C. Seither: One charge of resisting an officer, yes, Your Honor.
Hugo L. Black: And then you put on proof to the effect that he resisted an officer on the street?
Richard C. Seither: Yes sir.
Hugo L. Black: (Inaudible)
Richard C. Seither: That's been reversed, that's what I'm saying.
Hugo L. Black: That was the vagrancy that was reversed.
Richard C. Seither: No sir, no sir, resisting an officer has been reversed. Vagrancy has never been -- we put on the trial but the judge has never decided. He took an under advisement. That isn't as funny as it may appear. Mr. Wainwright had left to go to Europe for a year and we certainly are not going -- once the case came up, we realized that this man was a responsible citizen. I mean he got a 25 appellate suspended sentence. We weren't going to extradite him from Europe to try him for a vagrancy charge. But the whole thing is in there if we did take him to bat on it, the matter was interrupted and continued and the judge never did depend on a file and --
Hugo L. Black: Then you're going to say now that this gentleman who have just left --
Richard C. Seither: Did I say that?
Hugo L. Black: Spending a year in Europe -- .
Richard C. Seither: Sir, I didn't --
Hugo L. Black: I understood you say that this gentleman would have dressed like a tramp, since then have been spending a year on vacation in Europe?
Richard C. Seither: It's precisely right. It happens -- It happens everyday and we have cases where -- we have cases where we find people dead on a dump that leave on it in 25,000 in the garbage can but their life, their mode of living was out of for vagrancy. So the amount of money (Voice Overlap) --
Hugo L. Black: And if you found dead for vagrancy? Where is the complaint on the information on which this man was tried, is it in the record?
Richard C. Seither: Yes Your Honor.
Hugo L. Black: Where is it? Where can I find it?
Richard C. Seither: It's in the blue book, appendix (Voice Overlap) --
Hugo L. Black: In the blue book, I was looking in the transcription. What page will you say?
Richard C. Seither: On the charge of disturbing the peace by assault, it's appendix b pages 45 to 82 in this blue book, on there.
Hugo L. Black: 45 to 82?
Richard C. Seither: Yes Your Honor.
Hugo L. Black: He made a complaint that long?
Richard C. Seither: That's the transcript to the trial on disturbing the peace by (Voice Overlap) --
Hugo L. Black: Where is the complaint itself. We've asked you about the complaint.
Richard C. Seither: At the head of the transcript, Your Honor please, is a copy of the charge under which he went to trial.
Hugo L. Black: Where is the page of that?
Richard C. Seither: 47, if Your Honor please.
Hugo L. Black: 47.
Richard C. Seither: And that states it is relative to the statement of peace and assault, and then the vagrancy matter is --
Hugo L. Black: I don't see any complaint there. He does not, charged with --
Richard C. Seither: Yes, Your Honor.
Hugo L. Black: Charges and is that how a filed violation of Ordinance No. 828 MCS Section 49 through, relative resisting an officer, section 4224 relative to disturbing of peace by assault on petitioner, (Inaudible) and Section 4224, disturbing the peace by assault on petitioner Frank Gilbert, is that the charge?
Richard C. Seither: That's one of the matters. One on vagrancy is printed 129 through 180.
Hugo L. Black: Is that the actual charge, charging language of the complaint?
Richard C. Seither: Well by complaint, do you mean the original police report?
Hugo L. Black: No, I mean the charge on which he was tried.
Richard C. Seither: Yes, that's all.
Hugo L. Black: That's all?
Richard C. Seither: Yes sir.
Hugo L. Black: He was not tried on the written paper like an indictment or a written complaint.
Richard C. Seither: I have the original here of those records if Your Honor wants them and --
Hugo L. Black: No, I was just asking you.
Richard C. Seither: Yes, he was tried on an affidavit and the affidavit stated -- disturbing the peace by assault on Officer Frank O'Rourke and such and such of place and time. And the other affidavit reads, disturbing a peace by assault on Officer, I think Addison.
Hugo L. Black: And the only one we have to review is for the assault on the officer?
Richard C. Seither: Yes, Your Honor please, that's the city's position.
Earl Warren: Very well.
Richard C. Seither: Thank you.
Earl Warren: Mr. Wulf --
Melvin L. Wulf: Let me just clarify what the situation is about this trial. That's all I want to say. He was first tried on vagrancy reviling and resisting. The statement on this case, at the end of the State's case, they discontinued that case and filed the three new charges against him which were two charges of disturbing the peace for assaulting the police officers and the resistance. It's the latter three which are actually before this Court to review.
Potter Stewart: But only two of them, well I thought one was (Voice Overlap) --
Melvin L. Wulf: The resisting in the second set was reversed on the appeal of the (Voice Overlap) --
Potter Stewart: What judgment do we have before?
Melvin L. Wulf: The actual judge is on the two charges of breach of the peace for assaulting a policeman.
Potter Stewart: And that's all we have before us, isn't it? By way of judgment of the Court of Louisiana.
Melvin L. Wulf: That's right sir. But of course, but our theory is that these cannot be examined without examining the prior arrest on the street.
Hugo L. Black: Why is that so? Can you explain to me?
Melvin L. Wulf: Because we --
Hugo L. Black: Are you claiming that (Inaudible) on the street that he refused for butting his head against the officers in the court alley?
Melvin L. Wulf: Yes, we're saying that --
Hugo L. Black: That's what you have to get down to it.
Melvin L. Wulf: That's what we're saying, Your Honor. We're saying that because he was in custody in violation of the constitution that the search of his -- the attempted search was unlawful --
Hugo L. Black: I'm talking about the assault, that you're excused for the assault here that he had been mistreated by the officers in an entirely separate case down on the street.
Melvin L. Wulf: No, not mistreated, Your Honor.
Hugo L. Black: Well, whatever it is. Whatever was done to him --
Melvin L. Wulf: Yes, but you've further --
Hugo L. Black: You say he had a right to do it, rush in and butt his head against the officers, pushed them against the wall because of what they had done to him on the street.
Melvin L. Wulf: I said, yes. We say he has the constitutional right to resist an unconstitutional search.
Hugo L. Black: What he was doing there was to butt his head against them.
Melvin L. Wulf: But --
Hugo L. Black: That's the charge.
Melvin L. Wulf: But that's current in the course of the police officers' attempting to take off his jacket in order to see whether he had the tattoo. That was the scuffle. It was intimately, directly related to the attempted search.
Abe Fortas: Well, it's a little more than that, isn't it Mr. Wulf? If I understand the position and perhaps I don't. You're also relying on the allegedly unconstitutional arrest.
Melvin L. Wulf: Absolutely.
Abe Fortas: If I understand your position that's in two frights. Number one that he was brought in to the police station in violation of the constitutional rights that being no probable cause for his arrest. Number two, that in the police station, the officers attempted to do what you call a search and that is to remove his jacket, in violation of these constitutional rights. But in those circumstances, is that your position as I understand it, that he was at liberty to physically to resist what he proceeded to do and he had a right to resist the search because of those two violations to which I'm referring. And he could not be convicted for disorderly conduct that is resisting a police officer.
Melvin L. Wulf: That is precisely our position, Your Honor.