Warren E. Burger: We will hear arguments next in 1055, Stone against Powell. Mr. Granucci, you may proceed whenever you are ready.
Robert R. Granucci: Mr. Chief Justice and may it please the Court. This case is here on a writ of certiorari to review a decision of the Court of Appeals for the Ninth Circuit which in effect orders the setting aside of Respondents, California conviction of second-degree murder. The murder took place in San Bernardino, late in the evening of February 17, 1968. Respondent Lloyd Charles Powell with three companions entered a liquor store owned by Gerald and Mary Parsons. While one of the group was making a small purchase, respondent was observed in the act of shoplifting a half gallon of wine. He struck Mr. Parsons in the mouth with his fist, a fighting shoot. During the struggle, respondent took Mr. Parsons’ revolver from in and fired two shots. The first struck Mr. Parsons in the arm wounding him. The second struck Mrs. Parsons just below the neck, punctured her lung and resulted in her death the following morning. The Town of Henderson, Nevada is located approximately 180-airline miles Northeast of San Bernardino and 8 miles Southeast of Las Vegas. Shortly after 10 a.m. on the morning after the shooting, Henderson Police Officer Edward Lauten(ph) while on routine patrol observed two men walking across the parking lot of a shopping center. One of the two was the respondent.
Potter Stewart: What time of day or night?
Robert R. Granucci: Approximately 10 a.m. in the morning your Honor. As soon as the two saw the police car, they turned about and started rapidly in the direction they had been coming from. When officer Lauten(ph) made a U-turn and started to approach them, the two split up. Officer Lauten(ph) honked his horn. Respondent kept walking rapidly towards the rear of the department store. Finally, Officer Lauten(ph) got out and ordered respondent to stop. Officer Lauten(ph) asked respondent for some identification. He replied that his identification papers had been stolen. He did give the officer his name and date of birth. The officer then radioed for a warrant’s check which came back negative. Respondent told the officer he had been staying with friends in Las Vegas for the past few days but he did not give their names and he did not know their address. He stated that he was on his way to Michigan. The officer also tended to disbelieve this because the most direct route from Las Vegas to Points East does not pass through Henderson. A local ordinance makes it a misdemeanor for a person to loiter without apparent reason or business, and to refuse to identify himself and to account for his presence when asked by a peace officer to do so. When the surrounding circumstances would indicate to a reasonable man that the public safety demand such identification. Officer Lauten(ph) arrested respondent for violating that ordinance. A search incident to the arrest turned up the murder weapon.
Warren E. Burger: On this person?
Robert R. Granucci: On this person, your Honor. The respondent’s trial in June 1968 in the San Bernardino County Superior Court, the revolver was admitted into evidence after the trial judge had heard and denied respondent’s motion to suppress it as the product of an illegal search. The jury subsequently found respondent guilty of second-degree murder. Respondent appealed his conviction. One of his contentions was that his arrest and the incidental search were illegal because the Henderson Vagrancy Ordinance was unconstitutional. In October 1969, the California Court of Appeal affirmed the conviction holding it was not necessary to reach the merits of the search point because admission of the revolver into evidence, even if it were error would not have affected the verdict. Respondent did not seek a hearing in the California Supreme Court. However, he did subsequently apply to that court for a writ of habeas corpus and his petition was denied. In August 1971, state remedies having been exhausted. Respondent filed an amended petition for a writ of habeas corpus in the United States District Court for the Northern District of California. That court issued an order to show cause. After receiving briefs and examining the record of the state trial, the District Court denied the writ in February 1972. Significantly, in its order denying the writ, the District Court declared the purpose of the exclusionary rule would not be advanced by ex post facto condemnation of an arrest which was apparently valid when made. And the facts developed at petitioner’s trial show that the arresting officer had probable cause to believe that he had observed the petitioner violate the ordinance.On December 4, 1974, the Ninth Circuit Court of Appeals reversed. Ostensibly, directing further proceedings in conformity with this opinion but actually ordering the writ granted and petitioner released. Excuse me your Honor, respondent released. Its opinion, a triumph of logic over justice reasoned as follows. Under proper crystal, the city of Jacksonville, the Henderson Vagrancy Ordinance is unconstitutional. Therefore respondent’s arrest was illegal. Therefore the revolver found in the incidental search was illegally obtained evidence. Second, that the arresting officer acted reasonably and in good faith as of no moment. Application of the exclusionary rule in this case is appropriate to preserve judicial integrity and to deter legislative bodies from enacting unconstitutional statutes. Admission of the revolver was not harmless error, therefore, respondents; California murder conviction must be set aside. Thus, the question before this court in this case is—
Thurgood Marshall: Was he ever charged? In doing this arrest was he charged of possession of weapon?
Robert R. Granucci: Your Honor that does not appear in the record below. I think it is safe to assume that when the officer found the revolver in the incidental search, he forgot all about the Vagrancy Ordinance and continued to process and book respondent for the more serious charge of carrying a concealed weapon. But that is simply an assumption I make. There are questions before this court though—
John Paul Stevens: Within your argument, can I ask another fact question?
Robert R. Granucci: Yes, your Honor.
John Paul Stevens: The respondent is now on parole as I understand it.
Robert R. Granucci: Yes.
John Paul Stevens: Can you tell us at what point in the state proceedings he began the service sentences after the conviction of the Trial Court or is it normally true in California they were to leave PIL process as exhausted?
Robert R. Granucci: No, your Honor although a defendant in California is in entitled to move for bail pending appeal. The granting of that motion is just discretionary and ordinarily a defendant sentence for murder begins to serve his sentence as soon as the judgment is pronounced in the Trial Court.
John Paul Stevens: And that is what happened here?
Robert R. Granucci: Yes, your honor. The question for decision is whether a California murderer is to go free on Federal habeas corpus because he was arrested under a Nevada Ordinance which may have violated a decision of this court handed down two years after the conviction became final, four years after the arrest and more significantly more than four years after the ordinance was adapted. The question specified by this court in its order granting review namely whether in light of the fact that Officer Lauten(ph) had probable cause to arrest respondent for violation of an ordinance which at that time had not been authoritatively declared unconstitutional. Respondents claim based on the search incident of that arrest is one cognizable on Federal habeas corpus, invites a preliminary inquiry that is even more fundamental, that is, whether Fourth Amendment claims of state prisoners should be cognizable at all in such proceedings. We raised this very question in Schneckloth versus Bustamante and Justice Powell treated it in his concurring opinion. Today we ask the court to adopt Justice Powell’s analysis. Rather than simply restating the basic argument presented in that case, that the cost to society involved in re-litigating Fourth Amendment claims on Federal habeas corpus outweigh any benefits to be gained thereby, we present an additional consideration.
Byron R. White: I understand you said re-litigating?
Robert R. Granucci: Re-litigate your Honor.
Byron R. White: Well, what about if it has never been litigated?
Robert R. Granucci: Then, your Honor, the petitioner would be faced with two inquiries that were even more fundamental and would be dispositive, whether he had failed to exhaust state remedies or whether he had bypassed procedure in the state court.
Byron R. White: I just want to ask you, do you want the habeas corpus statute now construed to exclude from the power of the Federal Court,Fourth Amendment claims that have never been litigated in the state court?
Robert R. Granucci: Yes, your Honor. Where there has been a fair procedure available to litigate.
Warren E. Burger: where he had the opportunity?
Robert R. Granucci: Where he had the opportunity.
Byron R. White: Well, supposed there were some new information. Assuming he was denied counsel, illegally?
Robert R. Granucci: And could not litigate the claim for that reason?
Byron R. White: Well, let us assume he is excused on some matter for not having raised the claim of the state court?
Robert R. Granucci: Our position is such claims should not be available at all. A denial of counsel would work—
Byron R. White: Do not talk about re-litigation, just say litigation.
Robert R. Granucci: Litigated. I will accept that.
Potter Stewart: It should not be open for consideration.
Robert R. Granucci: It should not be cognizable, open for consideration.
William H. Rehnquist: But that sure is for denial of counsel—
Robert R. Granucci: That is a personal due process right available to a defendant by its own force.
Potter Stewart: Whatever would be the Fourth Amendment claim?
Robert R. Granucci: No, your Honor. But habeas corpus—
John Paul Stevens: Are you saying that petition should not be open in the Federal Court if there is no state procedure for even raising the question in the State Court, do you? Is your whole case premised on the availability of the state procedure where it could be provided?
Robert R. Granucci: Where the state provides an adequate procedure for the vindication of these claims, they should not be available on federal habeas corpus. Habeas Corpus is a remedy for the vindication of personal rights. This is clear from Fay v. Noia which says today’s habeas corpus provides a mode for the redress of denials of due process of law.
Byron R. White: But supposed the state has a good procedure but the judge -- State Supreme Court makes errors. Let assume it denies him cross-examination in the suppression hearing in a manner that is plainly erroneous. Now, the hearing is flawed, let us assume that it is flawed and everybody would concede it was flawed; you would still say that the Federal Habeas Court is close to him or open?
Robert R. Granucci: That would be a due process error that occurred during a state proceeding. That claim of denial of cross-examination on a material issue in the State Court.
Byron R. White: Well, then what do you about it? You entertain it in the Federal Court, but you will not reach the Fourth Amendment claim?
Robert R. Granucci: I think the proper remedy, your Honor, would be to send it back for another suppression hearing in the State Court where he would have his right to cross-examination.
Potter Stewart: But your claim in that case I suppose in the Federal Habeas Corpus Court would be a denial of the right of confrontation?
Potter Stewart: A due process?
Robert R. Granucci: Precisely.
Warren E. Burger: (Inaudible) in terms of time frame?
Robert R. Granucci: I think, I think that such claims ought to be promptly raised. There should not be a bypass of state remedies. There should be exhaustion.
Warren E. Burger: In other words, something on the nature of a Doctrine of Laches should be applied in the criminal area?
Robert R. Granucci: I think so Mr. Chief Justice. In Fay v. Noia, this court said vindication of due process is precisely the historic office of the writ of habeas corpus. But the historic office of the exclusionary rule on the other hand is entirely different. This court has thoroughly discredited the notion that the defendant has a personal right to the exclusion of evidence. In United States v. Calandra and United States v. Peltier, the court has stated that the exclusionary rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect rather than a personal constitutional right of the party agreed. The exclusionary rule furthers a general societal interest rather than a personal right.
Warren E. Burger: Those terms are more like supervisory power than constitutional, do they not? There is no personal constitutional right than the only other reach of this court or the Federal Court would be under supervisory power or is there third alternative?
Robert R. Granucci: I think the decisions of this court up to this point have tended to blur the notions of constitutional rights and personal rights.
Warren E. Burger: Just taking the language that you were reciting yesterday, that language is not comporting more with supervisory power than it does with defining an individual personal right?
Robert R. Granucci: I think so. I think so, although the theory of Mapp v. Ohio as I understand it is this. The constitution requires an exclusionary rule that can be asserted at trial in order to discourage the police from making unlawful searches.
Warren E. Burger: Certainly, this court has no authority other than the constitution for imposing the exclusionary rule on the states?
Robert R. Granucci: That is correct your Honor.
Potter Stewart: Not necessarily had to hold that the exclusionary rule was constitutionally required?
Robert R. Granucci: Yes, the fact that it is constitutionally required does not mean that it must be applied at all stages. It does not mean that it is required on collateral attack. I think this is clear from United States versus Calandra. John Calandra’s rights were arguably violated by an illegal search. But the violation of that constitutional right did not necessarily mean that he had a personal right to assert the exclusionary rule at all stages of the proceedings. In determining whether Mr. Calandra was entitled to make a suppression motion to challenge evidence which was being considered by the grand jury and which was being used to formulate questions asked to him. This court balanced the negative impact of allowing suppression there in the form of an undue interference with the functioning of the grand jury against any positive effects that application of the rule would have in further deterring unlawful searches keeping in mind that the evidence would be inadmissible at trial.
Warren E. Burger: The one you were quoting earlier came from Calandra not Mapp against Ohio?
Robert R. Granucci: That is correct, your Honor. It came from Calandra and it was quoted in Peltier. Of course the disadvantages of allowing state prisoners to raise Fourth Amendment claims on federal habeas corpus have been recounted before. I simply touch on them. This practice Texas cares judicial and prosecutorial resources. It causes frictions between the Federal and State Courts whose decisions are second-guessed. It undermines public confidence in the administration of justice by the litigation of matters years after the fact that bear no relationship to the guilt or innocence of the defendant. And it is totally inconsistent with any idea of rehabilitating criminal offenders. In the words of Professor Paul Butler, the idea of just condemnation lies at the heart of the criminal law and we should not likely create processes which implicitly belie its possibility. At this point, it may be suggested that we have proved too much that the disadvantages of Collateral attack are so great that no constitutional right should be available once a conviction has become final as a basis for habeas corpus. However, where personal rights are involved balancing is inappropriate. But where a societal right is involved and where a defendant has no personal right to the exclusion of evidence then he should be permitted to invoke the rule only where it will actually serve to deter on lawful searches and seizures.
Potter Stewart: You are not suggesting, are you Mr. Granucci that the Fourth Amendment rights themselves are some sort of second class non-personal rights?
Robert R. Granucci: No, I think history would argue exactly to the contrary.
Potter Stewart: But by the very terms, the Fourth Amendment confers a right upon each of us to be secure and he is a person, his house, and his effects from unreasonable searches and seizures.
Robert R. Granucci: That is right.
Potter Stewart: It can be nothing more personal.
Robert R. Granucci: That is right. But your Honor, Mr. Calandra’s rights were violated by that search. But that did not necessarily mean he had the right to make a suppression motion. The exclusionary rule is simply a judicially created doctrine to further the protection against unreasonable searches and seizures.
Potter Stewart: (Inaudible)
Robert R. Granucci: If it has been exerted prior to trial, the right is not completely violated until either the confession or its fruits are admitted in the trial. Remember the Fifth Amendment is about testimonial consumption.
Potter Stewart: (Inaudible)
Robert R. Granucci: Yes, but the defendant has no personal right to the suppression of evidence. It is not what the defendant feels. It is the remedy that the court makes available.
Potter Stewart: Would that not apply the same rule to compel the self-incrimination issues where the compulsion is then exerted prior to trial to secure a statement?
Robert R. Granucci: Yes, that right is not violated so until the evidence is admitted at trial because the Fifth Amendment is uniquely a trial right.
Warren E. Burger: (Inaudible) between a systemic rule that is for the benefit of the system as distinguished from the doctrine or rule that is for the benefit of the particular individual.
Robert R. Granucci: That is correct your Honor.
Warren E. Burger: I take it that is what you meant by using the term societal.
Robert R. Granucci: Societal and systemic, I think mean the same thing.
Potter Stewart: I wonder if you are right, you are suggesting that if the police extort a confession from an individual brutally and do not admit it in the trial as evidence, that individual would have no 1983 remedy against the police?
Robert R. Granucci: No.
John Paul Stevens: Well, then his right has been violated before the confession is introduced in trial. I do not understand your distinction.
Warren E. Burger: Does that not go to the reliability and trustworthiness of the confession as distinguished from no challenge to the reliability or trustworthiness of the pistol found in the pocket of this man?
Robert R. Granucci: Well, that is one distinction that has been drawn between statements and physical evidence. But I think the question of Mr. Justice Stevens go somewhat deeper. The question assumes and I would agree that the defendant who was injured by officers I think under Colorado State Law would have a right. He would also have a right if he was simply the victim of the search for a damage action assuming that the defenses of good faith and other related defenses were not present. But he has no personal right to the exclusion of that evidence. The exclusionary --
Thurgood Marshall: Would it maintain a civil suit from the jail so would it be not?
Robert R. Granucci: I do not know your Honor. There are many attorneys who would—
Thurgood Marshall: The 1983 suit from the jail?
Robert R. Granucci: Probably by retaining counsel.
Warren E. Burger: He can maintain it when and if he is free.
Robert R. Granucci: Yes, of course. Now it well may be—
Thurgood Marshall: Statute limitations as well.
Robert R. Granucci: Yes. Now, it well may be that the court is unwilling totally to eliminate the cognizance of Fourth Amendment claims on federal habeas corpus. If so, the facts of this case suggest a principle by which habeas corpus jurisdiction could be limited to those instances where its availability might actually serve the purposes of the exclusionary rule. We suggest the following limiting principle. A search made in reasonable and good faith for reliance upon a coordinate branch of government should not be cognizable on federal habeas corpus. Up to now, we have argued that exclusionary rule should not be applied on collateral attack because the cost in applying it far outweigh any minimal effect it might have --
William J. Brennan, Jr.: In fact, intentional, knowing violation it would be excluded, is that the line you are drawing?
Robert R. Granucci: I am drawing a line on federal habeas review.
Speaker: Right.
Robert R. Granucci: If the court made a federal habeas review, yes.
William J. Brennan, Jr.: Of a knowing violation of the Fourth Amendment to have excluded?
Robert R. Granucci: This is essentially a fall back position your Honor. In other words, if the court is not prepared totally to overrule Kaufman and the related cases, then it can limit review to those cases in which the deterrent purpose of the rule is actually served.
William J. Brennan, Jr.: That is where there is an allegation that the illegal search was known and unintentional?
Robert R. Granucci: Yes.
Warren E. Burger: Is this something on the lines of the English rule that only flagrant violations would be the subject of an exclusion?
Robert R. Granucci: I think so your Honor, although I am not sufficiently prepared on that point to speak with any great degree of confidence. You see when an officer has made an arrest or a search in reasonable and good faith reliance on the action of a coordinate branch of government, in this case, the town counsel which adapted the Vagrancy Ordinance and for example in the previous case, the magistrate who issued the search warrant, his action is commendable. It should not be deterred at all. In terms of influencing police conduct, application of the exclusionary rule in the setting where the officer has reasonably relied on a coordinate branch of government is actually contra-productive because to effect that it influences police conduct at all, it invites officers to speculate about the constitutionality of the statutes and laws they are sworn to enforce or search warrants, they are directed to execute. The Ninth Circuit based its decision on judicial integrity. We note only the judicial integrity was irrationally articulated by this court in the exercise of its supervisory authority over the lower Federal Courts. And it has been assimilated into the deterrent rationale. This is clear from United States v. Peltier. It is inappropriate to apply the exclusionary rule for the state of purpose of deterring legislature from enacting invalid statutes because the very word “deter” assumes that legislatures act in bad faith. This is contrary to the basic principles of democratic government.
Potter Stewart: Your argument really all it is directed to the point that was isolated in your colloquy with my brother Brennan, really the arguments you are making now is equally the effect that there was no Fourth Amendment violation in this case, is it not?
Robert R. Granucci: Yes, that raises a question of characterization, if you say the Fourth Amendment only is into prohibiting unreasonable searches. I think we can leave room for a reasonable mistake of law. Reasonable good faith mistake of law, Just as in Hill v. California—
Potter Stewart: That an arrest made under a statute or in this case an ordinance that was validly passed by a city council and the municipality in the State of Nevada which would have never been held to be invalid and that a search incident to that arrest was a perfectly valid search and no violation of the Fourth or Fourteenth Amendment whatsoever and if that is true then none of these other questions arise.
Robert R. Granucci: That is right. We think it is quite proper to correct to characterize as a totally reasonable search. On the other hand, if it is a violation of the Fourth Amendment, to make an arrest or search which is unauthorized by an ex post facto application of an invalidating decision then it is only a technical violation. And applying the exclusionary rule on habeas corpus is meaningless. You see in this case, what the Ninth Circuit did was free a California murderer simply to censure the town counsel of Henderson, Nevada for its alleged legislative misjudgment. This was a gross abuse of federalism, an intolerable miscarriage of justice and it cannot be allowed to stand. And I would like to reserve what remains of my time.
Warren E. Burger: And also have any effect to deterring police officer in this town in Nevada from enforcing the dubious ordinance?
Robert R. Granucci: Well, we are advised that in the Town of Henderson, Nevada they are no longer making arrest under the Vagrancy Ordinance but again, why punish California? Why set aside this conviction? It does not serve the purposes of the exclusionary rule.
Warren E. Burger: Peterson?
Robert W. Peterson: Mr. Chief Justice and may it please the court. Mr. Powell was walking in an open shopping center in Henderson, Nevada on February 18th , 1968 when he was approached by a Henderson Nevada police officer, asked a few questions and then arrested under the Henderson Nevada Ordinance. That arrest was unreasonable. It was unreasonable in the Fourth Amendment Constitutional sense for a number of reasons. It was unreasonable because the police officer did not have probable cause to believe that he had violated the ordinance and it was also unreasonable because—
Potter Stewart: because the ordinance is here is (Inaudible)
Robert W. Peterson: Yes, it is a—
William J. Brennan, Jr.: Just this brief?
Robert W. Peterson: I think it is in all the briefs in a number of different places.
Warren E. Burger: Do you say that the police officer should reasonably have known that this was unconstitutional ordinance?
Robert W. Peterson: I think so. I do not concede for a moment.
William J. Brennan, Jr.: I thought the argument you were just making assume that the ordinance was constitutional but nevertheless, there is no probable cause?
Robert W. Peterson: Nevertheless, I think that is exactly true.
William J. Brennan, Jr.: That is what lies on the ground on which the judgment we are reviewing rested?
Robert W. Peterson: It is not on that ground simply because the Ninth Circuit did not reach that ground.
Byron R. White: Do we independently reach a factual matter like that if it had not been passed on by the lower court?
Robert W. Peterson: Well, I suppose it might be appropriate if you were to decide that it is constitutional to arrest someone under an ordinance that authorizes unreasonable searches and seizures that this case would have to be sent back to the Ninth Circuit.
Byron R. White: Yes, but that does not get rid of the issue we have here.
Robert W. Peterson: No, it does not get rid of the issue that we have here and that is why I am going to the going on to the ordinance.
Warren E. Burger: It (Inaudible) that the Ninth Circuit rested on?
Robert W. Peterson: I do not think so. I think, for example that you might well decide do dispose off this case on the probable cause grounds in order to avoid deciding a constitution issue because the probable cause grounds is the narrower ground.
Byron R. White: That is a constitutional issue.
Robert W. Peterson: I mean, the constitutionality of the state law.
Thurgood Marshall: In this case and the Terry case.
Robert W. Peterson: This case is worse than the Terry case.
Thurgood Marshall: The case I understand, the facts are given that when the police approached him he run?
Robert W. Peterson: In the Terry case?
Thurgood Marshall: No, in this case.
Robert W. Peterson: No, he did not run. When the police approached him he was walking, walking according to the officer at a quick pace.
William J. Brennan, Jr.: But Mr. Granucci said, He said that he was hurrying.
Robert W. Peterson: He was walking quickly, that is the way the police officer characterized it.
Thurgood Marshall: Correct me, he is going this way and then he turns around to see the police officer and he walks quickly the other way?
Robert W. Peterson: Yes, quickly in a shopping center towards one of the department stores.
Thurgood Marshall: Department stores?
Robert W. Peterson: That is right.
Thurgood Marshall: And you know what happened in Terry? Terry was grocery store three times and this is once.
Robert W. Peterson: I believe it is either Terry or Supron, I forgot which one where the person walked back and forth in front of the stores, some 25 times. Yes, some 25 times back and forth looking like he was gazing the store, a number of times in that case.
Thurgood Marshall: When he walked away, well did the police now have the right to stop him?
Robert W. Peterson: I do not think the police officer in this case did have the right. But for the purpose of argument, I would concede that the way he was walking would authorize the police officer to make a limited Terry staff.
Thurgood Marshall: Would he have the right to frisk him?
Robert W. Peterson: No, he would not have a right to frisk him, because Terry requires before you can frisk him that you have some founded suspicion that he is armed and this police officer did not have any founded suspicion, he had none whatsoever. And indeed, the Attorney General has never argued that there was grounds for frisk. He did have a gun but there was no reason for the officer to believe that.
Warren E. Burger: There was a founded suspicion in Terry, Mr. Peterson?
Robert W. Peterson: The appearance of casing a place for possible robbery.
Warren E. Burger: Does that have to do with the likelihood or non-likelihood of his having a pistol in his pocket?
Robert W. Peterson: Well, that is the way robberies are usually committed.
Byron R. White: Would it that not be a ground, in Terry permitting that frisk was to self-protection of the officer while he detained him for a question?
Robert W. Peterson: When he thought that the individual might have had a gun. I do not think that you can frisk every person that you can stop under Terry. I am sure this court has never held that. I think that would be wrong. But in this case --
Thurgood Marshall: But it did not say that, Terry said when he stopped him he had the right to frisk him once he stopped.
Robert W. Peterson: Every case there is a right to stop, there is a right to a frisk?
Thurgood Marshall: So you say in that case, when he stopped him, he had the right to frisk him for his own protection that is what Terry is?
Robert W. Peterson: I think because in that case, the reasonable suspicion that the officer had was that this person was about to commit a robbery or something which normally includes a gun or some kind of weapon?
Warren E. Burger: In generalization, it is probably and equally good generalization that some of these gentleman needs an activity where he carefully avoids carrying a gun in order to avoid a higher degree of crime. I suggest that this second generalization, hypothetical is just as valid as yours. Neither one of them very valid.
Robert W. Peterson: Neither one very valid. Well, I think in this case the Ninth Circuit was correct when they pointed out in the case that the Attorney General makes no suggestion that there was a right to a Terry type frisk because there was no suspicion at all that this person was armed from whatever source that suspicion might come from. It just was not there. They just saw someone walking in a shopping center and thought that that was a suspicious person. In any event, the ordinance in this case under which he was arrested itself authorizes unreasonable searches and seizures because the ordinance allows a full custodial arrest for what under Terry at the most would be a brief detention and if there was reasonably, there was a gun, a frisk. In this case, not only can he be arrested but he can also be prosecuted simply for being a suspicious person. It also was unreasonable arrest under the ordinance because the ordinance was not clear enough to advise either the police officer or someone who is trying to hue his conduct to the standards of the ordinance of what the prescribed conduct is. There are other violations of this ordinance. The ordinance is also unconstitutional because it violates the Fifth Amendment. The ordinance makes it a crime in this case for someone to refuse to a suspect, a criminal suspect to refuse to give a narrative account to an investigating police officer of his conduct. I think that is a gross violation of the Fifth Amendment. The attorney general in this case argues that the police officer acted in good faith when he arrested under this ordinance and I would suggest that if good faith were the standard at the time that this arrest was made, this could not have been made in good faith because if either Officer Lauten(ph) or the Henderson, Nevada City Council had bothered to take a look at the law as it existed at that time. They would have found cases beginning with Boyd in 1886 and certainly they would have found the Miranda case which requires a police officer to advise someone that he has a right to remain silent and he would have found Davis versus Mississippi. A case in which this court said, that while a police officer may ask questions about unsolved crimes, he has no right to compel answers. Those cases were both on the books at the time that this arrest was made and I fail to see how a police officer who on a daily basis advises people of the Miranda rights could possibly believe in the constitutionality of an ordinance that made it a crime to refuse to answer the police officer’s questions. The Vagueness Doctrine was hardly a novel one in 1968. Many of the cases of this court at that time were vulnerable. There is a Lanzetta case, the Cox case—
Warren E. Burger: Say that the refusal to answer the questions may be considered by a court and by the policeman in the first incident and whether or not he should make a search?
Robert W. Peterson: And whether or not he should make a search, I think that that would be attaching a penalty to the exercise of the Fifth Amendment right—
Warren E. Burger: (Inaudible) some disabilities to Mr. Terry?
Robert W. Peterson: I do not think for his refusal to answer questions? I think that Mr. Justice White’s concurrence in that case made it clear that the officer has no right to compel answers and may not consider the refusal to answer. As part of the basis for the probable cause, that attaches an undue penalty on the exercise of your constitutional right not to incriminate yourself.
Warren E. Burger: Even 20 times is just presumably in prima facie as much of the constitutional right as refusing to answer the question that you pose it.
Robert W. Peterson: Or perhaps walking up and down with an apparent plan to rob a place is not a constitutional right.
Warren E. Burger: But Terry did not conceive in any sense that his conduct gave the appearance of the possible commission of the crime?
Robert W. Peterson: Oh, I think Terry did.
Warren E. Burger: Speaking of the defendant himself, Mr. Terry, the opinion however the court drew some inferences and said that this was enough to warrant a cautious and prudent policeman to take some steps including a complete search of the man.
Robert W. Peterson: Because his conduct was consistent, I think this was the proper reading of Terry, consistent with the possibility that he was armed. I do not think that every police officer who has a right to stop someone has a right to frisk him. I do not think every police officer who pulls someone over for a traffic violation has the right to frisk them unless there are some founded beliefs that the person might also have a weapon.
Warren E. Burger: we had something to say about that long after Terry?
Robert W. Peterson: That the police officer has a right to require the suspect to answer his questions?
Warren E. Burger: After a stop?
Robert W. Peterson: Or if there is going to be a full custodial arrest, I think that is right if you are going to take the person down to the jail. Well, then you do have a right and I suppose that that is the basis for the search in this case. He was being arrested for vagrancy and since he was now going to be taken to jail, then he could be searched. But that arrest was unconstitutional for the reasons that I am outlining and so that search has to fall.
Thurgood Marshall: Have a right to ask the question?
Robert W. Peterson: I think so. I think the police officer has a right to ask the question but—
Thurgood Marshall: And demand answers?
Robert W. Peterson: I do not think he has the right to demand answers at all.
Thurgood Marshall: Would he demand the answer?
Robert W. Peterson: He was arrested because in the officer’s view, he had refused to answer. That is the element of the crime—
Thurgood Marshall: Well, I thought he answered and he said he was on his way from Vegas to Michigan?
Robert W. Peterson: Well, I think that the attorney—
Thurgood Marshall: Is that correct?
Robert W. Peterson: Yes, he is on his way to Michigan.
Thurgood Marshall: And did he not also say that he was staying with some people in Vegas?
Robert W. Peterson: That is right.
Thurgood Marshall: And then he would not?
Robert W. Peterson: He could not remember the names. As one of the witnesses could not remember where he was staying when he testified at his trial.
Thurgood Marshall: So, he did answer the question?
Robert W. Peterson: Yes, I think the attorney general is in the dilemma because the critical element of the offense is refuse to identify yourself and account for your presence. Now, either he was not asked to account. I do not think he was. He was never asked why he was walking the way he was in the shopping center, in which case there was no probable cause for the arrest. Or he refused to answer, in which case he was arrested for exercising a constitutional right that he has or he did not refuse, he accounted. In which case, there is no probable cause to arrest
Thurgood Marshall: That is your basis Mr. Peterson? That it had been stolen?
Robert W. Peterson: Oh yes, he did identify himself though he gave his true name and he gave his birthday.
Thurgood Marshall: But he did not have any written identification?
Robert W. Peterson: No written identification but the Henderson, Nevada Ordinance does not require that.
William H. Rehnquist: Mr. Peterson, what if a policeman makes a Terry type stop and ask for the man he stops to have any weapons on him. The man says I refuse to answer. Is it your position that the officer cannot take that refusal into account in determining whether or not (a) to frisk him or (b) to arrest him?
Robert W. Peterson: I would take that position that he has no right to require that answer, and so he cannot attach a penalty to it and the penalty would be search.
William H. Rehnquist: But it is not necessarily the same to say that you cannot require an answer in the sense of beating it out of a person and to say that you can attach some significance to silence if the normal person would consider it relevant? You can say the same should they should go both way but they are not exactly the same inquiry.
Robert W. Peterson: Not exactly, but I think that this court has consistently held that you cannot attach a penalty to silence. In Griffin versus California could not comment on the fact that the defendant did not take the stand.
Potter Stewart: That was a testimonial silence under --
Robert W. Peterson: That is right but in Davis versus Mississippi it was not and in Mr. Justice White’s concurrence in Terry against Ohio, it was not. I would say that that is an undue price to exact for the exercise of the constitutional right. You have a right to remain silent. You cannot penalize that. That will be my position. In this case—
Potter Stewart: In Hofalian (ph) terms, it is a privilege, I guess, and not a right, is it not?
Robert W. Peterson: A privilege to remain silent. Again, the police officer had consulted the law in 1968 on the issue of good faith or the Henderson, Nevada City Council had done that, they also would have found that the Ninth Circuit in 1931 had held unconstitutional a Hawaiian ordinance that it made it unlawful to loathe, loiter or idle. And that ordinance was held unconstitutional on the grounds that it would undoubtedly be enforced discriminatorily and it penalized the constitutional right to wander around. Something you have a right to do in the United States. If he looked further, they would have found the federal cases that had struck down good account and satisfactory account statutes of Baker versus Bender and United States versus Margison had struck those down in 1966 and 1967. The Supreme Judicial Court of Massachusetts had struck down a similar statute and the Supreme Court of Washington, in 1967, held unconstitutional an ordinance that read as follows, “It shall be unlawful for any person wandering or loitering abroad or brought under other suspicious circumstances from 1-1/2 hour after sunset to 1-1/2 hour before sunrise to fail to give a satisfactory account of themselves upon the demand of any police officer. That was on the books at that time. I suggest is a more narrowly drawn ordinance than the one that is involved in this particular case.
Potter Stewart: During our basic submission, I gather on this aspect of the case that it is not only the right, I would say privilege of a police officer but also his duty. Simply, to take it upon himself not to enforce ordinances duly enacted by the governmental unit by which he is employed, if he has a bona fide belief that they are not constitutional laws.
Robert W. Peterson: I think that that is the Attorney General’s position. The Attorney General’s position and they set it forth on page 4 of their brief is that the officer’s belief and the validity of the ordinance must be in good faith.
Potter Stewart: That is not your position?
Robert W. Peterson: That is not my position. My position is that if this ordinance authorizes an unreasonable search and seizure then the evidence must be suppressed.
Potter Stewart: No, but the reason on this aspect of the case you say is not unreasonable search and seizure is that it was the arrest was made under the authority of an ordinance that was unconstitutional.
Robert W. Peterson: That is right.
Potter Stewart: And it would follow from that I suppose that it is the duty of a police officer to take it upon himself not to enforce ordinances that he in the exercise of reasonable care should know are unconstitutional.
Robert W. Peterson: I do not think that that is his duty. I think that he should enforce the ordinance if it is on the books and then it will be declared unconstitutional in a suppression hearing or in a prosecution and after that, it will no longer enforce the ordinance. I do not take the position that the attorney general does that the police officer should exercise his own judgment as to the constitutionality or unconstitutionality of the laws. I think that is an unworkable rule.
Thurgood Marshall: Is this an unconstitutional right then?
Robert W. Peterson: As of right now? This ordinance has not been declared unconstitutional except by the Ninth Circuit.
Thurgood Marshall: So now, what does the policeman do now? Does he enforce it or not?
Robert W. Peterson: Right now, he would enforce it unless he was told by the superiors not to.
Thurgood Marshall: In this particular case?
Robert W. Peterson: I am not sure, I follow that.
Thurgood Marshall: Well, you say that is still on the books, it has still not been declared unconstitutional. It is still valid. Well, then it was valid when the policeman arrested this man.
Robert W. Peterson: No, I think that they just did not know that it was invalid and until this court rules, they do not know, for sure, in the sense that we have a case right squarely on point that it is invalid.
Warren E. Burger: It was invalid?
Robert W. Peterson: That is right but this court has taken that case and so it is in somewhat of the state of limbo.
Warren E. Burger: But the grant of certiorari is dispensed or cast some cloud in that sense over the ordinance? We might have been taking it all for anyone knows to simply determine strictly whether in the eyes of the policeman to take Chief Justice Warren’s language out of the Terry case. He observed unusual conduct which led him reasonably to conclude in the light of his experience that something was not good.
Robert W. Peterson: He might have taken that for that reason but one of the questions which you granted certiorari on was the question of the constitutionality of the ordinance. That is right.
Warren E. Burger: And that you are suggesting that there is already an answer?
Robert W. Peterson: Well, we have the Ninth Circuit’s answer and I think we are going to have this court’s answer, I hope.
William J. Brennan, Jr.: (Inaudible)
Robert W. Peterson: No, I do not think I lose at all because the police officer do not have probable cause to arrest under it even though it is assumed to be constitutional.
William J. Brennan, Jr.: Otherwise, unless we address the Ninth Circuit did not -- the probable cause.
Robert W. Peterson: Yes, in which case, I think that the only thing the court should do then would be to send it back to the Ninth Circuit to get their judgment if this court chooses not to make that judgment itself. I would hope you would not do that. This case has been going for 7-1/2 years now.
Warren E. Burger: In your view, does the Terry case, the holding of the Terry case require that there be an arrest before there can be a frisk and a tack down looking for weapons?
Robert W. Peterson: A full custodial arrest? No, not if there is a founded suspicion that the person is armed, I think.
Warren E. Burger: The search may be made without an arrest under Terry.
Robert W. Peterson: Or you could view Terry as a case allowing a limited kind of arrest. You can look at it either way, the brief detention is a limited arrest but it is not unreasonable under the Fourth Amendment. It is not unreasonable to briefly detain and also pat down if there is a founded suspicion that the person might be armed because the officer has a right to protect themselves. That is the way I would read Terry.
Warren E. Burger: After the frisking process or patting down, conceivably that might tip the scales on the part of the officer and not to pursue the matter any further. Or to continue the interrogation which might as well lead to his release or his moving on as to his being taken under custody. The search in Terry was for just one purpose, was it not?
Robert W. Peterson: The particular officer? That is right because there was a founded suspicion that he might be armed. I do not think you could pat down anyone that you had a right to ask a question. I do not think that is what Terry holds. Does that answer your question?
Lewis F. Powell, Jr.: Do you think the respondent in this case does have a cause of action under 1983 for unlawful arrest?
Robert W. Peterson: I think he has a cause of action against the officer for arresting him without probable cause. He has no remedy against the Henderson, Nevada City Council for adapting an ordinance which in effect commands the police to make unreasonable arrest and commands and them to violate the Fifth Amendment rights of people who were walking around in Henderson --
Lewis F. Powell, Jr.: I think the person who is the victim of an unlawful arrest, the arrest being unlawful by virtue of an ordinance subsequently being held unconstitutional does have a cause of action under 1983.
Robert W. Peterson: No, not if the only reason that the arrest is unconstitutional was the unconstitutionality of the ordinance then he does not have a cause of action under 1983 against the officer.
Lewis F. Powell, Jr.: What if he has not been held unconstitutional at the time of the arrest then in your view there is no cause of action under 1983?
Robert W. Peterson: That is right. There is no cause of action either against the police officer under Pierson against Ray. I think that is the case or against the legislature because the legislature enjoys legislative immunity. But there is fundamental problem in this case and that is the Fourth Amendment says that the people shall be secure from unreasonable searches and seizures. The Attorney General would have the court adapt the view that that focus is solely on the police and that a legislative body may command unreasonable searches and seizures and so long as the police officer is relying on that legislative command there is no violation of the Fourth Amendment. But the Fourth Amendment does not say that people shall be secure only from searches and seizure conceived by the police. I think that—
Potter Stewart: This certainly does not protect against searches and seizures by private people does it or against McDonald.
Robert W. Peterson: Oh no, but there is no question of this being an arrest by a private person here. This is an arrest by a police officer based on legislation, state law. And I think—
Potter Stewart: But if the search and seizure was not by the legislature, the search and seizure was by the police officer that is the way it has to be measured does it not?
Robert W. Peterson: Well, that is the way it has to be because the legislature does not go out and make the searches itself.
Potter Stewart: Exactly.
Robert W. Peterson: That is right. If I command someone to commit a crime on my behalf, then I cannot say that well, I did not do it and so I am not responsible and I think that is the position that the Attorney General is urging the court to adapt. And I think that has been rejected by this court in Almeida-Sanchez and Brignoni-Ponce cases decided just last term where the immigration officers were relying in complete good faith and indeed there was unanimity among the Lower Courts as to the constitutionality of what they were doing in making fixed checkpoint stops and roving stops and nevertheless the evidence in those cases was suppressed.
William H. Rehnquist: In this court here, we came out differently.
Robert W. Peterson: On issue of retroactivity
William H. Rehnquist: Well, on the issue of whether the exclusionary rule should be applied.
Robert W. Peterson: To cases other than the first case that is brought to this court. This is the first case with respect to this ordinance where there has been an arrest under -- This has been brought to this court whether or not to apply this case retroactively and other decisions, I think he has wait until those cases come along.
William H. Rehnquist: But in Peltier, one of the grounds that was relied and was the fact that the order officers had relied on an active Congress. And here, you have got certainly some sort of an analogy that if the local policeman relies on an ordinance of his locality maybe it is entitled of the same weight but it is certainly a factor. Is it not?
Robert W. Peterson: It is a factor in the next case. The next case that comes along where someone else is arrested under the same ordinance, certain ordinance which is drafted in substantially the same terms and this court has said, and how you cannot make arrest under those ordinances.
William H. Rehnquist: But the test is whether the seizure was reasonable. It is not a flat reward where the constitution says no unreasonable seizure. And are you saying that the fact that he in good faith relied on an ordinance he thought to be valid and have not held to be otherwise, simply is entitled to no weight in the determination of reasonableness?
Robert W. Peterson: I think that since the constitution says that you shall be secure from unreasonable searches and seizures, that you cannot look just at the agent who was then commanded to make the unreasonable search and seizure by the legislature.
William H. Rehnquist: My question is whether you look just to that but I am asking you whether you say, is it to be entirely out of consideration, the fact that there was not in effect an ordinance that had not been held invalid in determining something like reasonableness?
Robert W. Peterson: No, I think the only consideration the court should give to the existence of that ordinance is the normal kind of presumption that the court gives to the constitutionality of the law until it is declared unconstitutional. But if that is an unconstitutional ordinance then I think in this case, the evidence is going to have to be suppressed.
Thurgood Marshall: Let us assume for a moment that a man is arrested like this man was, but at the time of his arrest, the Supreme Court of the State of Nevada had ruled that ordinance was constitutional. Are you with me?
Robert W. Peterson: I am with you.
Thurgood Marshall: And so they arrest him and they find this incriminating evidence. And subsequently this court said that the Nevada Court was wrong, would that invalidate that arrest?
Robert W. Peterson: Did it say that the Nevada Court was wrong in the same case that the Nevada Court has said that it was right then it would invalidate the arrest? If it were a different case it would not.
Thurgood Marshall: Well, so that the only way it could be reasonable that would be a decision of this Court. Right? Or Higher Court?
Robert W. Peterson: I think the only way in the first case to get to this court—
Thurgood Marshall: This is the only way it could be reasonable. Would it be this court or higher one?
Robert W. Peterson: No, it is either reasonable or unreasonable but I am not sure that you can rely on how this court is going to rule until this court has ruled. And that Nevada Supreme Court—
Thurgood Marshall: It would be reasonable if every court in a line, they rule on it one way and then we came along later rule the other way.
Robert W. Peterson: Then it would not be reasonable.
Thurgood Marshall: Then it would not be reasonable?
Robert W. Peterson: That is right.
Warren E. Burger: What happened (Inaudible)
Robert W. Peterson: He cannot get to declaratory judgment in the case like this because he do not have standing under Ellis versus Dyson. Well, I think, you have to eventually -- a case is probably going to have to end up in this court if there is serious doubt about the reasonableness of it as this case has.
Thurgood Marshall: (Inaudible) This would be then clogging much, you say that you wait here till I get a definitive decision on this? That is why I am locked here.
Robert W. Peterson: No, you cannot do it that way—
Thurgood Marshall: Why would you do it?
Robert W. Peterson: I think that this court has struck that balance in its retroactivity decisions. In the Brignoni-Ponce and Almeida-Sanchez cases, many people had been arrested and searched pursuant to the Federal statutes on those cases and this court in Peltier decided not to reverse those but this court did and the case that came here reversed that decision. And I think that is the way the balance has been struck. It will not be applied retroactively most likely but it has to be applied in this case since this is the first case to get here.
Warren E. Burger: Mr. Justice Marshall’s hypothetical inquiry, in the interim, after the ordinance is on the books and before the Supreme -- the highest court of the state has passed on it, is there not an old fashioned idea of the presumption of the constitutionality and validity of that statute?
Robert W. Peterson: That is right. I think—
Warren E. Burger: It is just as valid before the Supreme Court of Nevada passes on it as it is afterwards for these purpose, is it not?
Robert W. Peterson: Until it gets here and it is declared invalid and once it gets here, it is like Almeida-Sanchez and Brignoni-Ponce.
Warren E. Burger: Obviously, this officer passed on it in that interim period?
Robert W. Peterson: Yes, it did. I have suggested at that time the ordinance was also invalid because or he had no reasonable grounds to believe it was valid because there was a welter of cases on the books even then suggesting it is invalid.
Warren E. Burger: On your response, I thought you gave to Mr. Justice Stewart in a while ago that you were not taking position that this officer had any duty or any power at some constitutionality?
Robert W. Peterson: Well, to use a phrase has been used before that as a fall back position, I am not conceding that his good faith should be the test but I am saying that that is the test, that this court adapts the attorney genera’s position then this officer could not have had good faith because of the plethora of cases were on the books at that time.
John Paul Stevens: How can you say, there would have been a 1983 case against them? I assume they must have been assuming that there was good faith as the defense in the 1983 action.
Robert W. Peterson: Well, that of course has not been completely resolved by this court in Pierson against Ray. I would think that for the purposes of damages against the police officer, the court might well take the position that he could hide behind the shield of the statute.
John Paul Stevens: Just one question on the broader problem of collateral attack and this kind of issue being raised in a federal collateral attack, do you understand the deterrence is the reason why there should be collateral attack and state conviction is raising this kind of question? Let me rephrase it, I am afraid I confused you. As I understand your brief, the underlying reason for the exclusionary rule is to deter improper assertions.
Robert W. Peterson: That is one reason.
Speaker: What else?
Robert W. Peterson: The imperative of judicial integrity is another reason, that is a vague concept but I rather like the suggestion that the Shelley against Kraemer approach when a court accepts illegally seized evidence, it is effectuating an unconstitutional act in the same way that in Shelley versus Kraemer, the court was effectuating the racially discriminatory covenants by enforcing those covenants. I think that is one way to look at the imperative of judicial integrity.
John Paul Stevens: You say, the same basis, you assert the same basis for supporting the need for collateral attack in the federal court on state convictions, the two reasons, deterrence and the imperative of judicial integrity.
Robert W. Peterson: Yes, those are two reasons.
Potter Stewart: Well, there is still another that has been voiced and that is suppression is necessary to vindicate a person’s own right.
Robert W. Peterson: Yes, that also.
Lewis F. Powell, Jr.: The exclusionary rule should apply to a legislature as well as to the police?
Robert W. Peterson: I think that has to be the rule because the Fourth Amendment says that you shall be secure from unreasonable searches and seizures and there is no way that you can be secured if the legislature can tell the police, do as you please.
Lewis F. Powell, Jr.: In fact, the suggestion that the real deterrence to a members of the legislation is the power of the judiciary to hold unconstitutional, any act that is indeed invalid.
Robert W. Peterson: Oh, I certainly do in the context of this case because it is not going to be held invalid unless you have a suppression hearing and it is held invalid at the suppression hearing. If it can only be held invalid in a prosecution then the District Attorney is going to refrain from prosecuting because of the clear unconstitutionality of the ordinance. That way, he will protect searches and seizures that are made under it. There cannot be a declaratory judgment action because that is trammeled up with the Article 3 requirements, standing requirements that now allow only a very narrow group to anticipate by going into court and attacking the ordinance in Ellis against Dyson. This court’s case from last term is a very good example of that.
John Paul Stevens: This is to the extent that you rely on the terms as a justification for collateral attack, you are necessarily I assume also making the assumption that there is a difference between these plans that will be processed at the state court and the way it will be processed in the Federal Courts because if there is no difference why you do not need the additional deterrence of collateral attack. Is that not correct?
Robert W. Peterson: There may be a difference. It is not going to be different in every case but the—
John Paul Stevens: In some cases where the Federal Court would grant relief but not the state.
Robert W. Peterson: That is right and this is a good example.
John Paul Stevens: Is it not always true that the Federal Court addresses the issue three or four years after the criminal proceeding began and therefore three or four years after the man started his sentence?
Robert W. Peterson: Certainly true in this case.
John Paul Stevens: To the extent that you are talking about police deterrence, you are talking really about whether a man may serve a three or four years sentences as opposed to five or six years sentence. You are only talking about the latter portion of his sentence and in this case, indeed we are talking about a man who is already on parole?
Robert W. Peterson: That is right. He is already on parole.
John Paul Stevens: That is normally the case by the time you exhaust the lengthy proceedings that by the time you reach the end of the federal review process, the question of deterrence pretty well then come to an end?
Robert W. Peterson: No, not in the sense that we rare only deterring Officer Lauten(ph), these laws are still on the books today and as a matter of fact, California has an identical disorderly conduct statute which is being enforced today in California. And if I understand the deterrence rationale for the Suppression Doctrine, it is to deter other law enforcement people including other legislative bodies from unreasonable searching.
John Paul Stevens: If you enforce an ordinance like this, the man will only stay in jail for five years. Would you assume the state will sustain the ordinance and sustain the conviction? And only relate this in the Federal Court, the deterrence is that you tell him, that you tell the police that you can only put the man away for five years?
Robert W. Peterson: No, the deterrence is that you tell the legislature today. Right now, that these laws are no good.
John Paul Stevens: To put a man away for five years.
Robert W. Peterson: That is right. Well, once this court has declared the ordinance to be constitutional and I would hope and trust that state courts would not continue to keep the person incarcerated and a motion to suppress would be sustained.
John Paul Stevens: By a state court?
Robert W. Peterson: By a state court, after this court has given its guidance as to unconstitutionality of the ordinance and the appropriate application of the Suppression Doctrine when arrest is made in reliance on an unconstitutional law.
Warren E. Burger: The point you are making almost seems to suggest that all these ordinances are fungible or they are just exactly alike, that Chief Justice Warren in the Terry opinion took about a half a page to point out the myriad variety, the infinite variety of ordinances. Great many people are going to have different views about whether a particular holding of this court fits one way or the other on a particular ordinance, you think that so?
Robert W. Peterson: Well, I think that is true but this court does proceed on principle and it announces principles which can be applied with a fair degree of certainty to fairly similar situations. Although it is easy to pose, redrafting these ordinances in any number of ways to make them arguably constitutional in spite of what this court has said. The next ordinance might say, tramp about or it might say, saunter, or it might use some other equally vague words so that they could argue that the Powell case does not quite fit this case. I can only hope that this court’s decisions would be applied in good faith by the State Courts.
Warren E. Burger: Acting suspiciously would be equally inferred.
Robert W. Peterson: Certainly as a ground as to make someone a criminal.
Warren E. Burger: It is almost precisely the language this court used in the Terry case.
Robert W. Peterson: But they did not make someone a criminal for that and they did not authorize a full custodial arrest for simply being suspicious.
Warren E. Burger: They authorized a full search which in this case and in many other cases would produce a gun or heroine or some other evidence of criminality.
Robert W. Peterson: I authorized a pat-down where there was founded suspicion that the person might be armed for the protection of the police officer.
John Paul Stevens: Mr. Peterson, is it not correct that in most of this court’s decisions passing on the constitutionality of this Vagrancy Ordinance, the issue has been presented on a direct appeal? Is this not the only time this kind of issue has been presented under collateral attack?
Robert W. Peterson: To this court?
John Paul Stevens: Yes.
Robert W. Peterson: No, it was presented last year in Lefkowitz versus Newson but this court did not take it.
John Paul Stevens: I mean in the decisions by this court in validating such ordinances.
Robert W. Peterson: Yes.
John Paul Stevens: There was just question whether you need a collateral review as a method of getting this kind of issue to this court.
Robert W. Peterson: Well, I think it is interesting that this ordinance has been presented to this court in a number of other direct appeal cases in People versus Solomon and I think People versus Wager coming from California and this court did not take the case and yet here it is now in the suppression ordinance.
William H. Rehnquist: Maybe this amounts differently. This time we would have not taken it.
John Paul Stevens: But the point is, if it gets here to a direct review whether we take it or not.
Robert W. Peterson: Thank you.
Warren E. Burger: (Inaudible)
Robert R. Granucci: Thank you Mr. Chief Justice. Some random thoughts. First, there was probable cause. The district court after an independent examination of the State Trial record found probable cause. Second, counsel’s argument appears to imbued bad faith to the Town Counsel of Henderson. I would simply point out that the Henderson Vagrancy Ordinance was based on a Nevada statute. The Nevada statute was in turn based upon the California disorderly conduct statute and the California disorderly conduct statute was enacted in 1961 based on a model suggested by a respected scholar, Professor Arthur Sherry of the University of California, Law School who had served as the Head of Governor Earl Warren’s Crime Commission. Counsel also cited Almeida-Sanchez, however in Almeida-Sanchez, as this court noted in Peltier, there were no independent considerations of exclusionary rule policy considered by the court apart from the validity of the statute which was challenged. I respectfully urge the court again to reverse the decision of the Ninth Circuit and to reinstate this conviction. After all, this is not a vagrancy case this is a murder case. Thank you, your Honors.
Warren E. Burger: Thank you gentlemen. This case is submitted.