Warren E. Burger: We will hear arguments next in 75-19, United States against Santana. Mr. Easterbrook you may proceed whenever you are ready.
Frank H. Easterbrook: Mr. Chief Justice and may it please the Court. This case presents the question whether police can make a warrantless arrest of a person who, they have probable cause to believe, has committed one crime only moments before and is still committing another crime, when that arrest requires a brief entry into the vestibule of a house. We submit that the answer to this question is that a warrant need not be obtained. Three independent arguments support our position. Two of these arguments assume, arguendo, that a warrant ordinarily must be obtained to make an arrest inside a house. We argue first that a warrant need not be obtained when a crime is in progress and the entry can halt that crime. Second, we argue that a warrant need not be obtained --
Warren E. Burger: Do you mean when it is in progress, or when it is in progress and that fact is known or observed by the officer?
Frank H. Easterbrook: And when the officers have probable cause to believe that it is in progress.
Warren E. Burger: Just to be abstract without observation or without objective fact --
Frank H. Easterbrook: Unless it was known beforehand, if it just simply turned out that it was in progress, the after the fact justification would not be sufficient. Second argument is that an entry should be permissible when it occurs within a few hours after a crime and during a time during which it might be supposed evidence might be disposed off. We submit that the case can be decided upon either of those two grounds without reaching the general issue of when a warrant must be obtained to enter a house to make an arrest.
John Paul Stevens: Let me state that second ground, you say when it is supposed evidence might be destroyed, is that not always true?
Frank H. Easterbrook: Our general argument in that regard is that during several hours after a crime, it should be reasonable to enter a house to make an arrest. And that the general justification for that is that evidence might be destroyed during those first few critical hours. Whether or not there is reason to believe that it will be destroyed in a particular case as we submit immaterial that the justification of reasonableness extends to those cases as a class and it is not dependent upon the facts of a particular case.
John Paul Stevens: Is it dependent upon there being some likelihood that -- well, supposing you have a case in which the crime involves no other evidence other than just knowledge or reasonable cause to believe that a person say, committed a murder, but there is no evidence, you do not expect to find, does the evidence have any bearing and I understand –- I am quite following you?
Frank H. Easterbrook: Well, it would be difficult to understand. There is often evidence that a murder has been committed and that evidence might dissipate. In the case of Cupp against Murphy of course there were fingernail scrapings under the fingernails, type of evidence that might dissipate. But our justification runs to crimes as a whole based upon the fact that they are often used evidence of crimes. The problem with figuring out whether there is evidence in a particular case is, we submit, the best argument against requiring the officers to figure out whether there is or is not? It is such a problematic inquiry and it depends so much upon the facts of a particular case. It will be very difficult to require officers or indeed to require courts to make that kind of determination before or after the fact in a particular case. The third argument is that it is always reasonable to enter a home to make an arrest with or without a warrant.
Potter Stewart: At any time, day or night as per your argument.
Frank H. Easterbrook: Historically, that has been so Mr. Justice Stewart.
Potter Stewart: I just wanted, what is your argument, what your position was?
Frank H. Easterbrook: Our position is that that still should be so, but it is of course not necessary to reach that question here because of the two independent grounds that I have begun to set out and also because this arrest took place during the day. Our primary support for that is historicalness, Mr. Justice Holmes wrote, “Page of history is worth a volume of logic.” But I do not intend to discuss that point further unless the Court has further questions about it.
John Paul Stevens: I have just one. On both of your second and you third justifications, probable cause that a crime has been committed by the particular suspect, also a probable cause that he is within the house?
Frank H. Easterbrook: Yes.
John Paul Stevens: Both are required?
Frank H. Easterbrook: Both are required. The facts of this case are not complicated. A Philadelphia Narcotics Squad officer arranged to purchase heroin from Patricia McCafferty. Patricia McCafferty told him that she would go down to Mom Santana’s for the dope. The officer recorded the serial numbers of $110 in $10 and $20 bills and gave the bills to McCafferty. McCafferty visited Santana’s house, spent a few moments inside, and returned to the officers’ car with heroin, but without the money. The officer gave a hand signal to other officers, and McCafferty told him that Mom Santana has the money. The other officers then drove in there van, the short distance to Santana’s house, intending to arrest her for her part in the crime and to recover the purchase money. When the group of officers drove up in there van in front of Santana’s house, they saw her standing in the threshold of her doorway with a brown paper bag in her hand. One of the officers recognized the person in the doorway as Santana. The officers left the van and ran up to the walkway to the front door of the house. There were approximately 15 feet between the curb and the doorway of the house, so it took about a moment to reach the threshold. Meanwhile, Santana had turned and retreated into the interior of her residence. One of the officers overtook her in the vestibule, as she was leaving the vestibule for the living room of the house. Respondent Alejandro was in the living room. When the officers overtook Santana they jostled her, and white packets, white packets filled with white powder, fell out the bag to the ground in the vestibule. Santana ran from the living room, attempted to pick up the packets and attempted to flee. Another officer subdued Alejandro and the arrest was completed in the vestibule.
Potter Stewart: Now Mr. Easterbrook, you referred throughout this recital of the facts to these people as officers. They were not federal officers, were they?
Frank H. Easterbrook: That is correct. They were officers of the Philadelphia Police.
Potter Stewart: They were officers of Philadelphia.
Frank H. Easterbrook: Yes.
Potter Stewart: Does that make any difference or because Elkins against United States this is as though they were federal officers, is that it?
Frank H. Easterbrook: In our view, they must be judged as though they were federal officers, and because of Elkins and I would add to Elkins, the companion case, Rios, 364 U.S. 260 to 61 and most recently, Cady against Dombrowski, 413 U. S. 433 at 449.
Potter Stewart: This is the same as though they were federal officers?
Frank H. Easterbrook: They must be treated as though they were federal officers from a constitutional point of view, and the only question is whether their actions comported with the Federal Constitution. The packets in the bag were heroin. Santana was asked to empty her pockets. The officers recovered from the search of Santana’s pockets, $70 of the purchase money. The other $40 of purchase money was never found. The officers also discovered on a table in the living room two large knives that could have been used as weapons.
Warren E. Burger: When you say recovered the money, do you mean the identification was made by a virtue of them by the serial numbers?
Frank H. Easterbrook: By the fact -- because the serial numbers have been recorded Your Honor. The serial numbers on the other money in Santana’s pocket did not tally with the money that had been used for the purchase. Respondents were indicted for possessing heroin with intent to distribute it. They moved to suppress the evidence seized incident to their arrest in the District Court --
Potter Stewart: Is there any state prosecution?
Frank H. Easterbrook: They were originally also arrested by state authorities, initially -–
Potter Stewart: That is what you just stated the facts?
Frank H. Easterbrook: And they were charged by state authorities. Approximately a week after the arrest the state charges were dismissed so that there is no state prosecution now pending. They were dismissed technically without prejudice, but the state authorities, I am informed, have to intention of prosecuting.
Potter Stewart: That was not a problem here?
Frank H. Easterbrook: There was not.
Potter Stewart: Whatever other problems we may have? [Laughter]
Frank H. Easterbrook: Although the oral opinion of the District Court is not entirely clear, the Judge apparently concluded that the evidence was required to be suppressed, because the arrest of Santana was made without a warrant. Court recognized that there was, in his words, strong probable cause to arrest Santana and, in our words, absolute certainty to believe that she was at home. Moreover, the Judge stated that he did not want to criticize the officers for acting as they did under the extreme emergency posture of a case like this. Nevertheless, the Judge concluded they should have obtained a warrant to enter her vestibule to make the arrest. We appealed, the Court of Appeals affirmed without opinion. We begin from the premise that under United States against Watson decided by this Court on January 26 --
Warren E. Burger: Did District Judge say something about their being no danger of destruction of the evidence, or the concealment of it?
Frank H. Easterbrook: The District Court concluded that because they found $70 in respondent Santana’s pockets, there was no reason to believe that evidence was to be destroyed. In our view this is essentially a post hoc justification. The officers had no way of knowing, whether they would find the evidence or not amongst Santana’s pocket. And the fact that they did --
Potter Stewart: I gather it was the marked money.
Frank H. Easterbrook: Yes. The fact that they did find that there was happenstance and was something they could not have known at the time they were making the arrest. Under United State against Watson, we believe, police are entitled to make an arrest without a warrant, if they are, where they have a right to be, at the time they make the arrest. In Watson, the police had a right to be in the public restaurant at noon time and therefore had a right to make an arrest without a warrant. There is no doubt that police, like other visitors have the right to approach a house by using the front steps.
Speaker: Excuse me Mr. Easterbrook, I am little confused, I am glancing now at the District Judge’s oral colloquy which amounted to his opinion, I guess, did it not?
Frank H. Easterbrook: Yes.
Potter Stewart: Page 5 indicates that not only was the marked money suppressed as evidence, but also some heroin?
Frank H. Easterbrook: Yes, it was Your Honor.
Potter Stewart: What heroin?
Frank H. Easterbrook: It was the heroin that was found in the bag that respondent Santana was carrying at the time she was seen in the doorway. And that is the very heroin that she is charged with the possession with intent to distribute. That is the focus of the indictment in this case.
Potter Stewart: Well, the heroin that was sold to McCafferty --
Frank H. Easterbrook: -- Was not suppressed Your Honor.
Potter Stewart: It was not suppressed --
Frank H. Easterbrook: That is correct.
Potter Stewart: That would have been that evidence that Santana had heroin in her possession with intent to distribute or sell it?
Frank H. Easterbrook: It would also have been evidence.
Potter Stewart: And was it, well?
Frank H. Easterbrook: But that evidence is not involved in this case. She was charged with possession of the heroin that was found in the bag. That is correct.
Potter Stewart: Which it is -- would be responsible for?
Frank H. Easterbrook: That is correct. The indictment is a Page 5 of the separately bound appendix.
Potter Stewart: She was charged with possession of heroin for sell, or distribution?
Frank H. Easterbrook: That is correct. And the heroin that was the subject matter that indictment, was the heroin that was in the bag at the time she was arrested.
Potter Stewart: Does that appear in the indictment?
Frank H. Easterbrook: It does not appear specifically in the indictment.
Potter Stewart: Then the indictment -- the heroin that was sold to McCafferty?
Frank H. Easterbrook: No, Your Honor the --
Potter Stewart: There is no reason to suppress that, was it?
Frank H. Easterbrook: That is correct. There was no reason to suppress that and it was not suppressed. The subject matter of the indictment relates that she possessed 587 grains of heroin.
Potter Stewart: So you can tell by that quantity that there was --
Frank H. Easterbrook: That is right. McCafferty was indicted with distributing 42 grains of heroin. That is in the paragraph immediately preceding.
Warren E. Burger: Looking at 4A of the petition on a writ here, and I take it all of the language appearing on 2A, 3A, and 4A following the words that the Court -- what the District Judge said --
Frank H. Easterbrook: Yes, Your Honor.
Warren E. Burger: -- by way of an opinion, and among other things, the presence of the money in defendants Santana’s pocket indicates that there was no basis to conclude that it was to be destroyed, that is the Judge’s statement.
Frank H. Easterbrook: Yes, Your Honor.
Warren E. Burger: Predicate for his suppression?
Frank H. Easterbrook: That was part of his reason for suppressing the evidence, and I booked --
Warren E. Burger: Anything else or is there any other explanation of why he thought it could not have been destroyed five minutes later, if she had locked the door?
Frank H. Easterbrook: There is no other statement except to that.
Warren E. Burger: Or concealed, or concealed?
Frank H. Easterbrook: None other Your Honor, except the fact that it was in her pockets at the time of the arrest, which was approximately two or three minutes after the sale, and at that point, as I have pointed out, $40 of the money was already gone, $70 was recovered. Problem here we think --
Warren E. Burger: (Inaudible) the District Judge did not make any reference to disposition of the heroin at least that I observed, or did he at some point?
Frank H. Easterbrook: He did on the last page of his oral opinion on Page 5A, the second paragraph from the end. The Court believes the heroin would support count two and three should be suppressed and not offered as evidence.
Warren E. Burger: What should be suppressed that to -- that could have been put down to drain very quickly?
Frank H. Easterbrook: That is correct. He never makes any statement that there was – that the officers knew, or did not know whether that was to be destroyed. I think it is implicit in his opinion that the officers did not know that it was soon to be destroyed. We think the problem here is whether the police who were entitled to approach Santana as she stood in her doorway, were required to stop, turn back and seek a warrant because Santana retreated from the threshold of her doorway into her vestibule. The consequences of a sudden stop would have been considerable. Respondents would have been afforded a respite of an hour or more while the warrant was being obtained. There would have been ample time then to destroy the heroin and the money which having seen the officers coming.
Thurgood Marshall: Would it be fair to say that Judge said that before you move the van you should have gone and gotten the warrant?
Frank H. Easterbrook: I think that is another possible interpretation, and my understanding of the oral argument in the Court of Appeals is that -- at least, one of the Judges of the Court of Appeals expressed that view. And if that is the correct view of this case, we submit that it is not because the officers were entitled to approach Santana as she stood in her doorway without a warrant, and the respondents do not seriously contest that. But if it is the correct view of the case the arguments that we make here are unaffected. It was still true that the police believed that she was committing the crime of possession of heroin, and it was still true that the arrest was quite prompt after she had committed the crime of distributing heroin to McCafferty. And I will now turn to our --
John Paul Stevens: Mr. Easterbrook, I have just one small point. Is it correct that your theory is they had probable cause to believe she was then committing the crime of possession of heroin --
Frank H. Easterbrook: Yes Your Honor.
John Paul Stevens: -- as opposed to having just completed a sale?
Frank H. Easterbrook: We believe that they had probable cause to arrest her for two crimes.
John Paul Stevens: That is that they would -- they had before they went up after the door?
Frank H. Easterbrook: We believe that it is reasonable for officers to believe that people who have just sold heroin from a house in an operation of this sort have not sold at all.
John Paul Stevens: I see.
Frank H. Easterbrook: It is essentially a question of common experience. The most general justification for the arrest in order to put a stop to the continuing crime was articulated by Mr. Justice Marshall in Watson. He wrote, “When Law Enforcement Officers have probable cause to believe that an offense is taking place in their presence and that the suspect is at that moment in possession of the evidence, exigent circumstances exist. Delay could cause escape of the suspect or destruction of the evidence.” That fits this case exactly. The officers have probable cause to believe that Santana was engaged in the crime of possession of heroin with intent to distribute it, and that she possessed not only the heroin but the evidence of another crime, her previous sale of heroin to McCafferty. They were therefore entitled to make a prompt arrest even though that involved an entry into her vestibule.
Byron R. White: Do you think is it necessary they had probable cause to believe that the heroin was on her person?
Frank H. Easterbrook: We do not believe so, Your Honor. They have probable cause to arrest her for that crime. There would be some difficulties in this case.
Byron R. White: What heroin -- let us assume, they had probable cause to believe that she had heroin somewhere in the house, but not necessarily probable cause if she had it on her person. You would arrive at the same result?
Frank H. Easterbrook: We believe that they could make the arrest. There would in our view be --
Byron R. White: Then they have entered the vestibule?
Frank H. Easterbrook: Entered in the vestibule. There would be difficulties if they then attempted to search the house for the heroin that they have probable cause to believe was there. We believe they would, at that point, be required to desist and if the heroin was not within the reach of her or on her person to obtain a warrant to search the house for the heroin that they had probable cause to believe was there.
Speaker: Except it is to be on her person, or in plain view they would be required to get a warrant, would they not?
Frank H. Easterbrook: To search the house --
Warren E. Burger: To serve a status quo until someone came back with the warrant?
Frank H. Easterbrook: Unless they had reason to believe that there were other people in the house, for example --
Warren E. Burger: Well, I am just assuming.
Frank H. Easterbrook: Assuming that they had already arrested everyone in the house.
Warren E. Burger: We will resume there at 1 o’clock. Mr. Easterbrook you may continue.
Frank H. Easterbrook: I would like to expand upon my answers to two of Mr. Justice Stewart’s questions. You inquired, Mr. Justice Stewart about the nature the indictment in this case, and the indictment is indeed, as I indicated, for the possession of the heroin that was in the bag. United States Attorney informed me that that indictment was returned, because Patricia McCafferty whose testimony would have been perhaps necessary for proof of the sale to McCafferty had indicated that she was unwilling to testify against Santana. And therefore the decision was made to indict her for the possession with intent to distribute the heroin of the bag. Second question had to do with whether our position was that you could make a warrantless arrest entry at night? And I indicated that that our position was that. I should expand by saying that we believe that historically no warrant has been required and none should be required, but the reasonableness of requirement of the Fourth Amendment applies in full force, and it could -- and usually would be unreasonable to make a night time entry if a daytime entry would do as well to make an arrest. So that we do not want to leave the impression that night time entries are a preferable or indeed unquestioned way of making such arrests, they are not. They are often unreasonable. This case does not involve an entry to search for a suspect who may or may not be there. Does not involve a delayed arrest for a crime committed long ago. The officers had seen Santana in the doorway with their own eyes and they knew she had committed a crime there moments before and probably was still committing a crime. There --
Potter Stewart: How faraway were they, when they learned of the sale to McCafferty. How far were they away from Santana’s house?
Frank H. Easterbrook: About a block and a half Your Honor. And they returned that block and a half in a very brief time. This immediate arrest did not only put a halt to an ongoing crime but it preserved the evidence of that crime and of the crime that had just been committed in the sale to McCafferty. It prevented any possibility of flight, it produced maximum surprise, and by that token, maximum safety to the officers, because if the officers had been compelled to desist and defect the house arrest, their personal safety could have been in some danger, if they had later attempted to make the arrest once respondents knew they were there and attempting to arrest them. In many ways, this case is similar to Scher against United States, which we discussed in our reply brief. Officers had possessed probable cause to believe that Scher was committing the crime of distributing distilled spirits and that he had some such spirits in his car. They followed Scher’s car to his home and arrested him in his garage. The Court unanimously upheld that arrest. It observed that the passage of the car into the garage did not destroy the officers’ right to follow and to arrest Mr. Scher, and so it is here. Respondent’s passage into her vestibule did not destroy the officers’ right to arrest her for an ongoing crime.
John Paul Stevens: Mr. Easterbrook, may I ask about the ongoing crime theory. You told me a little earlier that the reason they had probable cause to believe she was then committing a crime was that you assume that one who sells some heroin retains some in supply. Do you also assume that the retained heroin is on the person of the defendant or merely on the premises?
Frank H. Easterbrook: We assume only that is on the premises Your Honor, and as I indicated in response to a question by the Chief Justice, it would be permissible to arrest that person. At that point, if a search of the premises were necessary to discover the heroin, it would be appropriate to obtain a warrant to make the search of the premises for the heroin.
John Paul Stevens: Not only appropriate, but necessary?
Frank H. Easterbrook: Necessary, yes. We do not argue that you can search the premises if the heroin is not on the person who is arrested.
Warren E. Burger: I think you said before that the limit of the officers conduct, once they got in the house was A - to search that person who was arrested and B - to seize any contraband in plain view, and the third alternative would be to take them in custody and preserved the status quo while awaiting another officer who would go to secure a warrant?
Frank H. Easterbrook: Yes, Your Honor. The search would go no further than the permissible scope of search under Chimel against California, which included the person of the person arrested and the area within his reach at the time of arrest. We do not believe, however, that the right to make the arrest of Santana depended necessarily upon the fact that she was committing the crime of possession of heroin with intent to distribute. And we submit that it is reasonable for officers to enter the house within a few hours after a crime and hear the crime of the sale to McCafferty. Whether or not this justification is called fresh pursuit. It is based on an entirely practical understanding that the first few hours after a crime are critical, both to capture the suspect and to recover the evidence. It is a justification based on exigencies that pertain to many cases. The decisions of the courts below by requiring officers to delay and invest one or more hours in obtaining a warrant, would disable them from acting during this most critical time immediately after a crime had been committed. Once these first few hours have passed, the need for haste is diminished, but at least during the first few hours it is reasonable for officers to act promptly to make the arrest. The District Court disagreed with this argument, because it said, the police could not be sure that respondents would flee, could not be sure that respondents would destroy evidence and so on. The problem with this approach, as I indicated earlier to you Mr. Justice Stevens, is that there are many possible outcomes during the first few hours after a crime. They are in reality no more than predictions of probabilistic events. The police may know that some suspects will flee; they will know that some will arm themselves in attempt to defend themselves against arrest; they know that some suspects will destroy evidence, but with rare exceptions, they cannot know which suspects those are.
Thurgood Marshall: Then did Santana know that she had been caught? She did not know it, did she?
Frank H. Easterbrook: Your Honor, Santana did not know until her arrest was made and our argument --
Thurgood Marshall: Then I think there was no danger when destroying this loot?
Frank H. Easterbrook: We believe that there was a very real danger as soon as the arrest of McCafferty was made only a few blocks away. McCafferty -- the arrest of McCafferty could have been observed and that in fact could have been related to Santana.
Thurgood Marshall: That is it?
Frank H. Easterbrook: McCafferty was arrested immediately after the sale.
Thurgood Marshall: Publicly?
Frank H. Easterbrook: She was --
Thurgood Marshall: Like people that go in and make purchases do not usually do not usually do it public, do they?
Frank H. Easterbrook: Your Honor, she was arrested in an automobile approximately a block and a half from Santana’s house.
Thurgood Marshall: Well, let us put it this way, there is nothing in the record that shows that they did not know?
Frank H. Easterbrook: That is right. There is nothing. And our argument is that there need be nothing.
Thurgood Marshall: And if she did know I would submit that she would have come out the back door rather than the front door?
Frank H. Easterbrook: That is right. Oh, no. There is no --
Speaker: What do you mean oh, no?
Frank H. Easterbrook: We are not arguing that she knew. We are arguing that the prompt arrest prevented her from running.
Thurgood Marshall: (Inaudible)
Frank H. Easterbrook: We are not arguing Your Honor that she was about to destroy these goods.
Thurgood Marshall: But that is you submit the whole case is, do you not?
Frank H. Easterbrook: Our argument is that officers might reasonably believe that some suspects will destroy evidence. We are not arguing, this was necessarily such a suspect.
Warren E. Burger: What is the -- again walking up her driveway when she was standing in the open door, what would be her probable reactions since your dealing in probabilities?
Frank H. Easterbrook: Her probable reaction we think is to attempt to destroy the evidence that she has and to attempt to flee, if they were required to desist after they were walking up her driveway. But again, as we have argued it is simply the question of probabilities, and we think it was reasonable for the officers in consideration of these probabilities to continue on to make the arrest. Our argument rests on probabilities and it rests on an analysis of reasonableness that pertains to the many cases other than this one. If there are no questions I will reserve the remainder of my time.
Warren E. Burger: Mr. Eisman.
Dennis H. Eisman: Mr. Chief Justice and may it please the Court. The issue before the Court today is in reality whether 200 years after the Declaration of Independence, Americans can be secured in the knowledge that the police may not broach the sanctity of their homes, seize them or there loved ones, carry them away without a judicial finding of probable cause for their arrest, accepting the argument that in certain cases, exigent circumstances would require an arrest without a warrant.
Warren E. Burger: What do you suggest as a hypothesis for the probabilities when the officers approached the door and she was standing in the open doorway, as it turns out with the heroin either in her hands or under her person?
Dennis H. Eisman: What?
Speaker: But your own knowledge what shows -- the record shows that she had just engaged in a sale of narcotic?
Dennis H. Eisman: Well, what the record shows in the District Court, and why the District Court I believe held this way was that the police set in motion the fact of the discovery of the arrest by their own action and immediately going to the house and taking the options of her immediately rushing up -- in plain clothes with guns drawn and rushing the house. When the Court felt below that it would have been just as easy and more constitutionally proper for them to have gone immediately to the place where, in Philadelphia, where the Justices of the Peace sit on a 24 hour basis which is only a half an hour away, gotten a warrant and return and not rush the house with guns drawn and children sitting on a steps in plain clothes in this fashion. So I think the argument that once the police ran up to the house with their guns drawn that the defendant would have known that they were coming to arrest them would have destroyed evidence, begs the issue that the District Court found was that they should not have acted in that fashion. They said they had the time. were no exigent circumstances absent what the police themselves created here in this case. The exigent circumstances, as pointed out by the Government in this case, are all circumstances which were created by the Government’s action and could have been negated by merely getting a warrant and returning to the house and making the arrest.
Warren E. Burger: Suppose the lady had been on the front porch and had not identified the police as policemen, as they approached to assume that they were reps, assuming that they were magazine salesmen or whatnot, could they have lawfully arrested her then and there?
Dennis H. Eisman: I think that --
Warren E. Burger: -- given the knowledge that they had about the prior transaction a few minutes before?
Dennis H. Eisman: I think if she were out in the street or if it was an open porch, not connected inside the close of the house as we might say, it might -- the case might fall into the area of the Watson decision. But in this case the record clearly shows that she was inside the doorway, and a matter fact, one of the police officers testified even in the vestibule. And I think one of the reasons this case is here today is to decide the issue different from Watson, not a person out in a public place, but whether a person inside the home, has the security that we submit the Fourth Amendment gives additional rise to the security of the home. In this case, there were absolutely, according to the findings of the District Court, no exigent circumstances. There was no information whatsoever that the defendant was armed or dangerous. There was no degree of time necessary to get a warrant, as in the Miller case, another Third Circuit case where they knew that it only took 15 minutes to cut heroin. It would have taken them 45 minutes to get the warrant. Here the District Court found that under the facts of this case, they have ample time to get a warrant. Thirdly, there was no information that the defendant was in anyway aware that the police was on -- were -- was on her trail. And finally, there is no evidence whatsoever, and the record as it is stood when the police rushed the house that there would be an effort to dispose off the money, which is the only real evidence that the police were talking about. In this case, that they were going in to seize. The court below asked a specific question, on Page 37 of the record. Now, the minute you left, what was your purpose of going to the house? What did you intend to do? Answer - I immediately intended to recover the marked money that was used in the transaction and arrest of defendant Dominguez Santana. Nothing in the record, in this case, that they had a reason to believe that there are additional narcotics present in the house or that this defendant in fact possess them. As a matter of fact, the record in this case interestingly reveals, no direct information that it was this defendant who made the sale, the evidence presented in this case was that the police officer saw McCafferty go into the house with Alejandro and come out of the house shortly after. The Police had never seen Mrs. Santana at all that day. And when asked about the transaction the only thing that McCafferty said was Mom has the money, not that Mom sold the dope, but that Mom had the money.
Thurgood Marshall: (Inaudible)
Dennis H. Eisman: Well, she was seen going into the house with the co-defendant, Mr. Alejandro and coming out a short time after and I think it would be just as logical to assume that the dope could have been sold by Alejandro, and somehow she saw the proceeds eventually go to Mrs. Santana was told that the money would eventually go to her. But in this record, and I am not arguing with the finding of the District Court of a probable cause here. What I am saying is the record here is even a little unclear as to what knowledge the police had when they charged the house with their guns drawn, in plain clothes with children sitting on the step saying, police. Here in addition to the issues raised by the Government on their appeal -- there was the another issue that I do not think the Court really felt it necessary to get to, but that was that the circumstances of this arrest, the failure to say, we are here to arrest you, and merely running up with guns drawn into somebody’s home without stating the purpose for that entry, was in fact improper also. The sanctity of a person’s home is not only, I believe, guaranteed by the Constitution, but it is a tradition that goes back hundreds of years in England and/or Anglo-Saxon heritage. It is a problem not only that existed at the time of our revolution and, according to many writers, was one of the fundamental reasons why in 1776 there was a Declaration of Independence, but in fact, exist today outside of our country in England, the history of the Fourth Amendment which I do not intend to dwell on at any great length.
Byron R. White: Why do you think the (Inaudible) was not making an arrest in her home, if without a warrant --
Dennis H. Eisman: In England?
Speaker: -- if there was probable cause?
Dennis H. Eisman: In England there was no requirement for a warrant to make an arrest and I submit that is the reason why our Constitution was written or Fourth Amendment was written to the Constitution was to distinguish between what was going on in England and the colonies in those days, and what was hoped for to be different in this country. Because in England today, according to at least the press in London, that is before the House of Parliament, a bill that gives the Internal or Inland Revenues Service, as it is called in England, the right to go into somebody’s home and search for any papers necessary to prove tax evasion, take away anything necessary, and break doors, if necessary. General warrants --
Potter Stewart: Without a warrant?
Dennis H. Eisman: With a warrant, but not no warrants specifying to any general specific areas that --
Potter Stewart: Does the warrant have to be supported by probable cause?
Dennis H. Eisman: No. It is a warrant that is obtained from a Justice of the Peace, which according to the reports I have read, has absolutely no knowledge of what the Inland Revenue Service might be interested in, but the point I am making is this is a general warrant, the type of warrant that was used in England and in the colonies before the Declaration of Independence, which lead to the eventual finding that a Fourth Amendment to the Constitution was necessary. If the Fourth Amendment does not protect us from intrusions into our home, and protect us from the police determination as to whether or not they are going to arrest us by putting between the police and the citizen a judicial disinterested determination, then what does the Fourth Amendment stand for? It has to stand for the fact that in America, citizens before they could be taken out of their house, whether be day or night -- and I do not think -- although it is a little more horrendous to be dragged from your home without a warrant at night than it is to be dragged from your home or have your sons or daughters dragged from your home in the day time without a warrant. At least if we know that before the police came to our house, absent exigent circumstances, that a Judge had found probable cause, then I believe we will be finding what our forefathers in the Bill of Rights wanted to offer for our country that we would be different from the systems in other countries, and that we would have the protections of a judicial determination of probable course. In this case, there was absolutely no exigent circumstances found by the Trial Court, and no reason to go into the home and drag out Mrs. Santana in the fashion it was done. This was a row house with people sitting, children sitting on the step and the facts are that plain clothes policemen jumped out of a van, ran up with guns drawn, ran into the house, and grabbed the defendant. It is a frightening aspect or specter to think of, even though when we consider that the crime involved is a crime that we consider serious.
Warren E. Burger: Frightening Mrs. Santana, you mean?
Dennis H. Eisman: Frightening that it might happen to one of us that the police may come to our house, run up with guns drawn and plain clothes, run through the doorway where we are standing on vestibule and grab us. It is frightening that to think that not only can this happen to someone as alleged like Mom Santana, but it could happen to anyone, where the police are the ones making the determination.
William H. Rehnquist: Well given the exigent circumstances there is no doubt it can happen improperly up?
Dennis H. Eisman: Well, I -- I concur that where the person is armed and dangerous. Where there is evidence that the person can destroy the evidence, or might destroy the evidence, or might flee, that that is a common sense and logical exception to the warrant requirement, but here in this case, and I believe, and the reason why this case is before this Court today is the determination of absent those exigent circumstances. Do we as American citizens have the protection of a judicial determination before we are seized? Normally, before this time most of the cases requiring warrants were just for the seizure of property, and I am the first to admit that property rights are extremely important in our society, but rights to physical arrest, I believe, are a little more important, and the seizure of a person is it goes even deeper than the seizure of a property, and people should at least be have the same rights to protection of a judicial determination before the seizure of their person that they have in the seizure of their property. Thank you.
Warren E. Burger: Thank you Mr. Eisman. Do you have anything else further Mr. Easterbrook?
Frank H. Easterbrook: Counsel for respondent has indicated that a problem in this case is the failure of the officers to announce that they were officers and to state their purpose and to demand entry. I will deal with that just quite briefly. It is not clear that the Constitution requires any announcement. Ker against California presented that question directly, and four Justices believe that it did; four Justices that it did not, and Justice Harlan expressed no view on that question. Assuming the Constitution requires some sort of announcement. The pertinent analogue would be 18 U.S.C. 3109, which requires an announcement prior to the breaking of the door of a house. Our reply brief devotes substantial space to this question. We have argued that walking in through an open door, in the view of someone who knows that the officers are coming, is not such a breaking that an announcement is required by Section 3109. And in addition, there was no chance here that any of the harms that that rule was intended to prevent could come about. The rule was designed to prevent the exertion of force by officers, the breaking of doors when that kind of breaking could be avoided by consent. It was also designed to avoid unnecessary opportunities for violence. The householder in England had the right to protect himself against those who would break down his door and enter. And the rule of announcement, by letting him know that the police were coming, would prevent that sort of violence, but this case does not present either of those two rationales and we submit should not be cover by them. Thank you very much.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Warren E. Burger: The next case is Bell v. United States. Mr. Allman, you may proceed whenever you're ready.
Roy W. Allman: Mr. Chief Justice, and may it please the Court. It is my position here in the interpretation of the federal bank robbery statute, section 2113(b) does not cover the crime of false pretenses. Here, as the facts indicated in the brief, a client managed to take some money from Dade Federal Savings and Loan by and with their consent with an artificial trick. That is, he altered a check which was sort of obvious had they looked at it and took $10,000 from this account which he created in his own name. The check was drawn to him. It was done totally by mistake on behalf of the bank. Basically what we have--
William H. Rehnquist: Mr. Allman, Daytona wasn't the drawee of the check either, was it?
Roy W. Allman: --No, Dade Federal Savings and Loan. It was a check which he somehow came into possession of, altered the deposit number on the back, i.e., put his account number after scratching out somebody else's and put it in an account that he created at Dade Federal Savings and Loan.
William H. Rehnquist: The check wasn't drawn on Dade Federal Savings and Loan?
Roy W. Allman: No, it was not. It was drawn through somebody else for deposit to some account of the person whose check it was. Basically, he got the bank involved through the bank's mistake. It is my position in reading the statute and it has created an ambiguity. It has got the Courts of Appeal... I think it is five to four now... construing this statute both narrowly and broadly. The bank robbery statute which in 1934 was specifically limited to bank robbery amended in 1937 to include the terms 1937 interpreted and argued by the government that, in fact, this covered only common law larceny. So the position now... The former Fifth Circuit now the Eleventh first went along with my arguments in my brief then en banc reversed itself and took the broad position that 2113(b) covered the crime of false pretense. The reason all this has come about is the way this Congress drew the statute. The statute was drawn as follows: It indicated that you take and carry away, steal, or purloin, words that are not necessarily defined specifically at common law but are in fact defined now generically. But in 1934, 1937 were contemplated in the common law sense. What has happened is this. In 1934 a broad bank robbery statute in dual form was submitted to the House Judiciary Committee. The Committee considered this bill and specifically, specifically rejected the aspects of the bill that covered crimes of false pretense, embezzlement and other crimes by trick or consensual takings and restricted it to the forceful robbery concept. Thus, the title of the Act, the text of the bill and the thrust of the situation in 1934 with the gangster-style bank robberies going on. Subsequently, apparently in briefly reading the Act the prosecutors have brought prosecutions of people who take money from banks in various types of ways, false checks, forgeries, false pretenses, trick, deceipt, fraud, et cetera. Four districts have gone along with this. Four districts have not. However, the Supreme Court itself in Jerome in 1943 took the position and the government took the position that the Bank Robbery Act, 2213(b) was a common law situation defining the crimes it intended to proscribe as robbery, burglary, and larceny even though the Act eventually uses the terms "steal, purloin, take and carry away. " which are not specific to those crimes. In Turley, the Supreme Court gave us some indications how we should interpret these nonspecific common law terms. What they have said is this. You look to the legislative history of the Act. In this case specifically in Le Master the Ninth Circuit looked at the legislative history in great detail and quoted directly from it saying they could not do better than the analysis which they put forth of the legislative history which showed specifically the Act was originally intended to be broad. It was tightened and limited to robbery in 1934 and then extended to burglary and common law larceny only in 1937. For this reason the factual situation that Mr. Bell put himself in unwittingly exempted him from prosecution under 2113(b). In the dissent in the Eleventh Circuit the judge said it is not a question that Mr. Bell has committed some kind of a crime. However, the crime he committed is not contemplated in 2113(b) because the legislative history combined with the title to the Act combined with the fact that the Act contemplated a, shall we say, active or violent taking away from, robbery, burglary, some kind of active, moving type of crime as opposed to the act of crime of false pretenses. That is something stealthily done. It is our position if you follow Turley and the appellate courts that look at Turley carefully and analyze the guidelines in Turley and apply them to the act in this case including the context of the Act, that is robbery, violent acts, taking away, carrying away, that type of thing with the fact that they were specifically in the bill in the House investigation of what they should do about the robbery situations occurring in the '30s took and eliminated the crime of false pretenses from the purview of this Act. It is my conclusion and I think the only conclusion that is reasonable if you take the Act and interpret the ambiguities in it in accordance with what has happened, legislative--
Byron R. White: You agree you must resort to legislative history to win your case?
Roy W. Allman: --Yes, I do, Judge, and I think in the Ninth Circuit Le Master analyzed the legislative histories of 2113(b) even though Turley was a--
Byron R. White: What is the ambiguity in the statute? Do you think it is what meaning you give to steal--
Roy W. Allman: --Steal and purloin, yes, sir.
Byron R. White: --Because there was a carrying away of money with some kind of an intent to... At least the person knew he was not entitled to the money.
Roy W. Allman: There is no question about that, Judge. He committed a crime probably a state crime involving the generic term. He stole. He took somebody else's property.
Byron R. White: But Jerome at least used words that had some common law meaning like larceny--
Roy W. Allman: Larceny--
Byron R. White: --and things like that, but steal or purloin does not have that kind of meaning.
Roy W. Allman: --It is a generic term. That is correct, and that creates the ambiguity in this sense. If you look at the history of the law, if they intended to cover that type of crime they would not have eliminated specifically the crime of false pretenses as they did in the legislative debates that created the robbery statute. They wanted to leave the states with that type of crime specifically focusing the federal law on the crime involving robbery, active carrying away, the violent gangster-type crime that initiated this situation. That is my analysis of that ambiguity situation, Judge. In Turley where they were interpreting the dire act of the interstate transportation of stolen motor vehicles that type of thing, stolen was construed consistently with the legislative history to be a broad thing where the federal government had an interest in controlling interstate transportation of stolen vehicles. In this case it is the exact opposite. The Congress specifically eliminated the crime of false pretenses in its debate before creating the statute. That is analyzed very well, I think, in Le Master, the Ninth Circuit decision which is inconsistent with the other four decisions in applying Turley to the word "stolen" in the context of the statute along with the legislative history. The only conclusion I think you can come to reasonably if you look at Le Master and go along with Turley is that 2113(b) was a restrictive statute and the government used to argue in 1937 that in fact it was a restrictive statute.
Byron R. White: Are there any other statutes that would make it a crime to get money from a bank other than by this violent kind of crime?
Roy W. Allman: Yes, there are, Judge. I think every state in the Union has a generic term which they--
Byron R. White: I mean any other federal law, any federal law.
Roy W. Allman: --Yes, as a matter of fact, a recent case, Williams. The Williams case construing, I think it was 1025, indicates that, and this Court held recently, I think it was 1982 that unless the Congress specifically says in so many words that this is the proscribed act, we will not expand the congressional intent to cover a generic-type situation. In analyzing the legislative history in Williams, this is exactly what they did. The government was seeking to place a broad concept on the word's use in the statute where Congress in its legislative history did not intend to say--
Byron R. White: I will put it another way. Does this Act go as far as any Act towards covering false pretenses kinds of crime, or are there some other statutes that might reach false pretenses?
Roy W. Allman: --There are other statutes both state and federal. I believe--
Byron R. White: I mean federal.
Roy W. Allman: --Okay.
Byron R. White: Or does this come as close as any?
Roy W. Allman: I believe this comes about as close as any. There are other statutes that cover, for instance, the card sharking statute which specifically contemplated false pretenses by specific language which I cite in my brief. I can't recall the case name at this time. However, in that case the Congress specifically said card sharking and false pretenses is a federal crime on the high seas... It was gambling off the shore of New Jersey or something like that... specifically enumerated by Congress. This is the reverse. In this case Congress specifically contemplated a broad bank robbery statute in the House bill and rejected it.
Byron R. White: Well, do some of the cases on either side of this issue... Do some of them relate to say giving a bank false information in an application for a loan and getting money from--
Roy W. Allman: That is Williams. That was decided in 1982. That is the one--
Sandra Day O'Connor: --Well, couldn't this defendant perhaps have been charged under that section 1014?
Roy W. Allman: --I don't believe so, Your Honor. Reading that as a false statement report to get money to lend. I guess that is probably inducing a bank to lend you money by false statement or some other misrepresentation. That is the way I read Section 18 U.S.C. 1014.
Sandra Day O'Connor: Well, he certainly got money by means of false statements here.
Roy W. Allman: Well, in reality he took advantage of the bank's mistake. He basically forged the check, eliminated the back deposit number, put his number and name on it and deposited it. The bank didn't look at the check and paid him the money. The false statement I guess... He induced the bank by trick or fraud to give him somebody else's money is what he did. There is no question about it. He committed a crime. The only problem was the crime was not 2113(b).
William H. Rehnquist: Have the liabilities been settled as between the Dade Federal Savings and whatever bank the check was drawn upon in this case?
Roy W. Allman: I am not certain about that, but I am certain that Dade Federal guaranteed his endorsement and, therefore, they ultimately would have paid for their mistake, I'm sure. It is an interesting footnote that the money this man got by this means was taken from him in a burglary apparently. That is immaterial, I guess. [Laughter]
Byron R. White: In 1014 Congress has protected the bank against false statements in loan applications?
Roy W. Allman: Yes, sir.
Byron R. White: So it really has not left to the states in all circumstances the false pretenses crimes, all of them?
Roy W. Allman: I would agree with that 100 percent, yes, sir.
Byron R. White: Well, here is just another arguably did not leave the false pretenses kind of crime involved in this case.
Roy W. Allman: I would have no problem with that in resolving the ambiguity in saying stolen or purloined if the legislative history had not specifically eliminated the crime of false pretenses. In Le Master, in Jerome if you look at the Le Master case, the House Judiciary Committee had a very broad bill. They accepted one provision and eliminated two others. Specifically section 2 said it should be a crime for anybody to trick a bank in any way shape or form, false pretenses or whatever and accomplish the taking of money from said bank. This was not enacted in the statute. It was contemplated and eliminated specifically in 2113(b). That is why I think it is different. I think it would be a good result had they left it in, but they did not. That is my problem with 2113(b) in this prosecution.
Byron R. White: What would he have been charged with under state law? Do you suppose forgery?
Roy W. Allman: Larceny. Straight larceny.
Byron R. White: I know but how about--
Roy W. Allman: Forgery.
Byron R. White: --He forged somebody's name, did he not?
Roy W. Allman: In reality forgery is given very broad definition in Florida. If you do something that alters something to your benefit--
Byron R. White: Well, he purported to be the payee, did he not?
Roy W. Allman: --Yes. He removed for deposit only to some account number. He scratched that out, for deposit only, me, my account number. That is exactly what he did. The bank chose to ignore the fact that he scratched out the prior limited endorsement, and they guaranteed his endorsement. That was the bank's mistake. But that is not a crime under 2113(b) and that is the whole problem here. It should be, but it is not. The Congress chose to eliminate that specifically in the legislative history, and that is the problem.
John Paul Stevens: Is there not an aspect of the legislative history that you have not addressed at least yet? In the '34 bill they broke it into two parts, consensual takings and nonconsensual takings and it was with the consent of the bank that the artifice and trick line which appeared. But in the '37 bill there is no division between consensual and nonconsensual from which one might infer, I am not sure this is right, that the statute was intended to cover both categories and once it covers both categories you do not need the artifice language because takes and carries away is enough to take care of it. Anyway, you see what I mean.
Roy W. Allman: You could argue that, Judge, but when Congress has done something specifically and not later taken corrective action as they have done in other cases--
John Paul Stevens: They did take out the words "without the consent of the bank. " which was also in the '34 bill.
Roy W. Allman: --The bill which was not enacted into law--
John Paul Stevens: Correct. That bill said without the consent of the bank was one of the two alternatives, but that language is not in the '37 Act.
Roy W. Allman: --That is correct. If you look at the '37 Act, the Attorney General said, look, we have got a robbery statute but if there is nobody around and the guy comes in and takes the money off the counter and walks out, we do not have a robbery. We cannot prosecute him under our Bank Robbery Act. Therefore, we should change the Act as follows: make it burglary, you do not have to put anybody into fear to take the money, and larceny, common law larceny. At that time the government argued, yes, the definition is common law larceny--
John Paul Stevens: If they wanted just to cover that situation, should they not have said takes and carries away without the consent of the bank because in that situation there would have been no consent--
Roy W. Allman: --That is correct.
John Paul Stevens: --the one that they are talking about specifically. Somebody came in and found the money on the counter.
Roy W. Allman: Takes and carries away, steals, or purloins. That is an inaccurate common law larceny definition basically. It is a little broader than that. I agree with you.
John Paul Stevens: You are suggesting the statute should be read as if it included the words "without the consent of the bank? "
Roy W. Allman: If we are going to separate the part... False pretenses gets us to the fact that they tricked him. The bank gave consent to take it, yes. With the larceny situation, and I think as the statute reads and as Congress intended it contemplated an active, violent, robbery, burglary concept, coming in and taking something, not coming in talking to the teller, putting a check in, going back, waiting the 20-day period and then withdrawing the money at their leisure taking a chance that the bank would not detect this. This is not common law larceny. This is false pretenses. Le Master specifically addressed this issue and said the statute does not cover it.
William H. Rehnquist: Well, Mr. Allman--
Roy W. Allman: Yes, sir?
William H. Rehnquist: --wasn't common law an element of I think they call it aspertation in larceny. Was that not just taking and carrying away requiring a removal right them so to speak?
Roy W. Allman: This is the way I feel and this is what I think Congress was concerned with. They were concerned with, I think, the violent aspect, taking and carrying away, the robbery concept. This is the Federal Bank Robbery Act. Twenty-one thirteen (b) is, I think, a lessening of the requirement for violence but requiring still the nonconsensual taking away.
William H. Rehnquist: Certainly it does not have to be robbery. It could be burglary.
Roy W. Allman: Burglary or larceny, but the quick, violent active type of crime that Congress was addressing in this matter, if you look at legislative history and if you look at the interpretation in Turley, Turley says how are we going to interpret the words "steal and purloin"? Purloin could mean by stealth, but it is still the same concept. All the tellers go to the coffee machine. He comes in sees the money on the table picks it up and walks out. That is a larceny. Like you say, there is no consent from the bank. In this case the bank helped him commit this crime by a mistake. He tricked the bank as just as though he tricked the people who had the money. That is why Congress in limiting itself to the violent type of crime specifically said, we do not want to cover the crime of false pretenses by eliminating section 2 in the 1934 bill and again in 1937 not specifically enacting it.
William H. Rehnquist: When you say a violent I take it--
Roy W. Allman: I mean active.
William H. Rehnquist: --burglary could certainly obtain at 3:00 in the morning and no guards around. There would be no violence but there would be an immediate removal.
Roy W. Allman: Nonconsensual, active taking away, yes, sir. That is my problem with this statute applying to this case.
Warren E. Burger: Why is this less a removal than taking it a 3:00 in the morning when they happen to leave the door open?
Roy W. Allman: It is both a removal. There is no question about it. It is a crime. The difference is this--
Warren E. Burger: He carries it away in both cases does he not?
Roy W. Allman: --I'm sorry?
Warren E. Burger: He carries it away in both cases?
Roy W. Allman: Yes. He carries it away. There is no question about it. The difference is in this case Congress considered the option of covering consensual trickery or crimes by the bank coming in and being suckered into a deal. They considered that. They specifically eliminated it in 1934. If they had intended and if it had been a problem as the burglary and larceny aspects, the original statute was inadequate to cover the immediate taking and nonconsensual carrying away type thing, so in '37 they amended it. They changed it. But they did not go back to section 2 which they eliminated in 1934 and say this shall include either by implication and interpretation the trick, false pretense. False pretense was not larceny ever under definition in common law. False pretense was a separate crime primarily because they got possession and title. The larceny thing they got possession with the consent. In this case the bank intended him to have the money. They thought it was his money. They had made a mistake. He had involved the bank in a crime but not the crime under 2113(b) because there was no nonconsensual taking away. There was a consensual tricking of the bank not covered by this statute. The legislative history is specific on that. They could have put it in. They did not. In Williams this Court absent support in legislative history for the design of a statute to apply to the specific conduct, this Court, the Supreme Court holds it is not proscribed. That is not the conduct approached in this statute. That was the conclusion in Williams in 18 U.S.C. 1014. We have an analogous situation. Just recently the Supreme Court again said consistent with the approach of lenity the construction of a criminal statute shall be specific. They shall not be presumed to take over the state's role in prosecuting crimes. The federal bank robbery statute approaches and addresses itself specifically according to legislative history the nonconsensual, violent or active taking away from a bank not false pretense which was contemplated and rejected. This is my whole problem with 2113(b) in this case.
Thurgood Marshall: Am I correct that if you win your man goes free and that the statute is wrong in the state case? Am I right?
Roy W. Allman: No, sir. The statute is not wrong in the state case--
Speaker: It has not?
Roy W. Allman: --and I think ultimately that is what the courts are doing. They are making sure that somebody who does something that is wrong is punished. I think what is happening is they are stretching the statutes to far when the congressional intent was specific not to stretch it to this crime. I think what really happened and basically what we are talking about is the prosecutor charged him with the wrong statute. He could have turned it over the the state. The man would have been punished. He made a mistake. In the dissent they admit he committed a crime. He did something wrong. There is no question about that. The problem is is it going to be punished or are we going to let him go because he was charged with the wrong statute. Unfortunately, under the law a few guilty men must escape so that the law maintains its integrity. I have reserved some time for rebuttal if I might.
Warren E. Burger: We will resume at 1:00. Mr. Giuliani.
Rudolph W. Giuliani: Mr. Chief Justice, and may it please the Court. The Petitioner in this case obtained possession of a $10,000 check that did not belong to him to be deposited into a savings account at the Dade County Savings and Loan Association. Petitioner opened an account at the Dade County Bank using a false address, birthdate and social security number. He then deposited the stolen check into this new account at another branch of the Dade Bank using a second false address and having altered the account number on the check to state his own new account number. After a 20-day holding period, Petitioner withdrew $10,000 plus interest from this account. In plain every day English, Petitioner stole $10,000 plus interest that at the time belonged to the Dade County Bank, a bank insured by the Federal Deposit Insurance Corporation. The bank theft statute, 18, U.S.C. section 2113(b) prohibits anyone from taking and carrying away with intent to steal or purloin money belonging to a bank insured by the FDIC. In plain--
William H. Rehnquist: Mr. Giuliani, did he take cash?
Rudolph W. Giuliani: --Yes, Your Honor, I believe he did. In plain English that is precisely what Petitioner did. He stole $10,000. In order to avoid the express language of this prohibition, Petitioner urges that the words do not mean what they say but instead should be read to mean that Congress in 1937 meant to prohibit solely larceny at common law. That is trespassory taking or taking without consent.
Harry A. Blackmun: Was there any other federal statute which conceivably could have covered his action here?
Rudolph W. Giuliani: I do not believe so, Your Honor.
Harry A. Blackmun: Not 1014?
Rudolph W. Giuliani: Ten fourteen would not because this would under your own decision in 1014 this would not have amounted to an extension of credit.
Harry A. Blackmun: The Court's decision.
Rudolph W. Giuliani: Yes, Your Honor. Crucial to the crime of larceny at common law was a trespass really a physical invasion because primitive criminal law was concerned only with protection against force or violence. A trespass was necessary for any crime to be felonious. As the criminal law developed, however, and expanded to protect other interests including property rather than acknowledging the changing nature of the law, the Courts in England engaged in fiction to avoid the reality of reversing prior precedents. So crimes such as larceny by trick an unilateral mistake developed so that it was larceny to trick someone out of possession of that money, but it would not constitute larceny if the owner of the money had also turned over title. If Petitioner's argument is accepted and these ancient distinctions are revived, it would be a violation of section 2113(b) if a person cashing a check for $100 mistakenly received $1,000 from the teller, realized that mistake and decided to keep it and walked out of the bank because that at common law would have amounted to larceny by trick in the sense that according to the fiction only possession had been turned over, not title. If, however, that same--
John Paul Stevens: Is the same true that that would have been a violation of state law?
Rudolph W. Giuliani: --Pardon me, Your Honor?
John Paul Stevens: That would be a violation of state law, I assume?
Rudolph W. Giuliani: I assume it would be.
John Paul Stevens: Just in a broader sense, what is the reason why these cases ought to be in the federal court rather than the state court?
Rudolph W. Giuliani: Well, Your Honor, the banks--
John Paul Stevens: I understand it is a federal insurance at a bank, but nevertheless it is a state crime as well. Just in terms of allocating law enforcement resources, why would this not be a good category to leave to the states?
Rudolph W. Giuliani: --Well, first of all there is potential federal lability in the sense of all of these banks are insured by the Federal Deposit Insurance Corporation--
John Paul Stevens: I understand.
Rudolph W. Giuliani: --and it is our view that this is precisely--
Thurgood Marshall: I am not too sure that the statute does not limit it to those. It says any bank. The statute says any bank, those insured or not would it not?
Rudolph W. Giuliani: --No, Your Honor, it would have to be either a--
Thurgood Marshall: Are all banks insured?
Rudolph W. Giuliani: --I do not believe all banks are insured, Your Honor, it would have to be--
Thurgood Marshall: Well, the statute says all banks. Does it not?
Rudolph W. Giuliani: --Well, it should be--
Thurgood Marshall: Or any bank, credit union, or any savings and loan association, so it applies to all banks.
Rudolph W. Giuliani: --Now it does. At the time that this amendment was passed in 1937 it was passed specifically to apply to banks that were insured by the Federal Deposit Insurance Corporation.
Thurgood Marshall: But the statute we are operating under says all banks.
Rudolph W. Giuliani: It has been expanded since then. That is correct, Your Honor.
Thurgood Marshall: It says all banks. That is the one we are operating under?
Rudolph W. Giuliani: That is correct.
Thurgood Marshall: I join Justice Stevens. I do not see what the federal government's interest is in any bank. An uninsured bank, what interest would the federal government have? In stealing money from an unfederally uninsured bank?
Rudolph W. Giuliani: First of all, Your Honor, this particular bank was not an uninsured bank. This bank was insured by the Federal Deposit Insurance Corporation. The statute that we are construing here was passed in order to protect the assets of federally insured banks and that is one of the reasons why we argue for an interpretation that would include all forms of theft.
John Paul Stevens: Is it not true that it was passed in response to a specific problem. John Dillinger and some of his friends were running around the country crossing state lines holding up banks all over the place. Was that not what caused this statute to be enacted?
Rudolph W. Giuliani: No, Your Honor, that is what caused the 1934 Act to pass.
John Paul Stevens: Right, and then they picked it up to take care of the fellow who walks in and finds the money on the counter.
Rudolph W. Giuliani: But I think there is a very big difference between the 1934 Act and the 1937 Act. The 1934 Act when it originally was proposed by the Attorney General would have covered all forms of taking. It would have covered robbery, burglary, and larceny both with and without consent.
Warren E. Burger: I suppose one explanation on the policy issue is that that is the way Congress decided it should be. Congress enacted the statute.
Rudolph W. Giuliani: But, Your Honor, I do not believe that that gives effect to what the 1937 Congress did.
Warren E. Burger: No, my point is only with respect to the policy question that was suggested that why does the federal government get into it. The answer is because Congress says.
Rudolph W. Giuliani: That is precisely correct.
John Paul Stevens: Why didn't you read the statute correctly? If it did not say that you would make precisely the same argument to the contrary.
Rudolph W. Giuliani: Well, our argument is simply that the plain language of the statute if you put aside distinctions that are 200 and 300 years old and have been criticized for 200 or 300 years as just introducing technicalities into the law that have no equity. If you read the plain language of the statute it certainly covers the conduct of this Petitioner taking and carrying away $10,000. Then when you look at the legislative history of the 1937 Act and what Petitioner has done is to confuse the legislative history of the 1934 Act with the legislative history of the 1937 Act. There is no doubt that the 1934 Act was limited to bank robberies. The House so limited it. Their concern was the Bonnie and Clyde gangster bank robbers who moved around state to state.
William H. Rehnquist: Not just burglaries but robberies.
Rudolph W. Giuliani: Only robberies in 1934. In 1935, however, a significant fact occurred. Congress expanded the coverage of the bank robbery statute to cover not only federal reserve banks and banks chartered by the federal government, but in 1935 Congress expanded it to cover all banks insured by the Federal Deposit Insurance Corporation, a much larger and greater area now of potential federal liability. So that in 1937 when the Attorney General went back to Congress, he asked the Congress to expand the coverage of the 1934 Act to include burglary and larceny and he used new words to define larceny, not the old words that we used in '34 but new words. The words that he used were "taking and carrying away with intent to steal or purloin. " so that the purpose of the '37 Congress cannot be the same as the limited purpose of the '34 Congress. The purpose of the '37 Congress goes beyond merely being concerned about taking by force and violence.
William H. Rehnquist: Mr. Giuliani, what if Mr. Bell instead of being an outsider here had been a teller in the Dade Federal Savings and Loan Association and had simply embezzled $10,000?
Rudolph W. Giuliani: That would be covered by a separate statute that had a federal embezzlement statute that applies to agents and employees of the bank. That, in fact, had already been a violation of federal criminal law, I believe, at the time these statutes were passed.
William H. Rehnquist: Would you say it was covered also by this statute?
Rudolph W. Giuliani: It could be covered by this statute as well.
William H. Rehnquist: Does that mean you think it might be but you are not sure?
Rudolph W. Giuliani: No, I believe that the purpose of the Congress in 1937 was to broadly prohibit theft from a federal bank. That term was defined then as a generic term.
William H. Rehnquist: So the taking away requirement is really almost done away with because in the facts of this case you have Bell actually taking $10,000 that did not belong to him, dollar bills, so to speak, or tens or hundreds, but in the embezzlement thing it is just basically a credit or a ledger transaction. You say that is covered, too?
Rudolph W. Giuliani: No. It does not have to be covered, Your Honor. You do not have to go that far because at the time that this statute was passed embezzlement was already a crime.
William H. Rehnquist: But I am not trying to strike a bargain. I am just trying to find out how high you think the statute should be interpreted.
Rudolph W. Giuliani: The statute should be interpreted to reach theft offenses, larceny, larceny by trick, and taking by false pretenses.
William H. Rehnquist: How about embezzlement?
Rudolph W. Giuliani: It does not have to be read and should not be read to reach embezzlement. Embezzlement is already covered by another federal statute.
Byron R. White: Do you think embezzlement is a taking away? At least there is a taking away here, is there not?
Rudolph W. Giuliani: Yes, Your Honor, there clearly is.
Byron R. White: If there was an embezzlement, why would the statute not cover it?
Rudolph W. Giuliani: Well--
Byron R. White: We have other instances where an act we have already recognized it that, I think it is in the bank field, where the same act violates two different criminal statutes.
Rudolph W. Giuliani: --You could interpret... The statutes could cover the same ground. There is no doubt about that.
Byron R. White: What about the false application on a loan application? A false statement on a loan application, that is covered in another section.
Rudolph W. Giuliani: That is covered in 1014.
Byron R. White: Was that on the books in '37?
Rudolph W. Giuliani: I do not know if it was or not, if it was on the books in '37 or not, Your Honor. The embezzlement statute was a crime prior to 1934. I do not know about section 1014. To assume that Congress in 1937 had reintroduced these distinctions would mean that it would be a violation of this statute if someone mistakenly received $1,000 as I said before and decided to keep it. But it would not be a violation of this statute if he stole checks, forged those checks, presented those checks to a bank and over a period of time depleted the bank of unlimited amounts of money because at common law one would constitute larceny by trick because there had only been a cheating of possession and the other would constitute taking by false pretenses. Petitioner and the few Circuits supporting his view in our view confused the purpose of the 1934 Congress with the purpose of the 1937 Congress and interpret those purposes as being exactly the same. The 1934 bill as presented by the Attorney General and passed by the Senate would originally have prohibited robbery, burglary, and larceny defined actually as both taking by false pretenses and larceny at common law. The House Judiciary Committee struck the burglary and the larceny provision not as Petitioner would have it because of some concern over the reach of common law larceny. There was no discussion of common law. There was no discussion of common law distinctions. The word never even came up in the legislative history. That Congress, the 1934 Congress was concerned with limiting the crime to reach the situation of interstate gangster bank robbers and wanted to limit the crime just to robbery and not to embrace burglary or any form of larceny. The 1937 Congress when it took up this subject again clearly had a different purpose than the 1934 Congress. The 1937 bill was intended to broaden coverage beyond robbery, beyond just merely taking by force and violence to cover burglary and larceny. Concededly under everyone's interpretation of this statute, it would cover crimes such as taking money mistakenly given by the bank or larceny by trick, scarcely crimes that are committed by the Bonnie and Clyde interstate bank robbers. Once Congress removed the force and violence limitation and expanded the statute to reach nonviolent theft as well as fraudulent theft, it cannot be logical to ascribe to the 1937 Congress the same intent as the 1934 Congress. Rather the more logical and sensible conclusion is that in expanding the statute the intent of the 1937 Congress was to give broad protection to banks whose assets were insured by the Federal Deposit Insurance Corporation. Now the choice of words that Congress used, I believe, is very important. The Petitioner relies very heavily on the fact that Congress selected the words "take and carry away" and the title larceny as if those two formulations are code words for all of the ancient distinctions of common law larceny. By 1937, however, the words "take and carry away" as well as the term "larceny" no longer were limited solely to describing common law larceny. In fact, in the 1934 bill which passed the Senate it used the words "take and carry away" to go on and define takings without consent which would have been common law larceny and then taking and carrying away with consent which at ancient common law would have been a false pretenses. As this Court has noted in the Turley decision, by 1919 the law of many states had developed to include not only common law larceny but larceny by trick and false pretenses in their prohibition of generic larceny and theft offenses. This Court, in fact, in the Jerome case twice used the label larceny for a description of crimes including false pretenses and pointed out that Congress did so in the legislative history to the 1934 Act. Thus, by 1937 to conclude mechanically and dogmatically that larceny means solely common law larceny and that takes and carries away means the same thing that it meant in the 18th century is to ignore the contemporary use of those words both common use and use as words of art.
Sandra Day O'Connor: Mr. Giuliani, speaking of the Jerome case, in Jerome the Court held the burglary prohibition of section 2113(a) did not cover this act and the underlying act in Jerome was, I think, uttering a forged check. Under your theory, could the government have brought that action under subsection (b) then?
Rudolph W. Giuliani: No, Your Honor, because actually it was an incomplete crime. The crime was never completed in Jerome in the sense of a taking and carrying away. The Jerome case does contain dicta--
Sandra Day O'Connor: That is contrary to your position.
Rudolph W. Giuliani: --That is contrary to the position that the government is now arguing. At the same time the Prince case contains dicta that supports precisely what the government is arguing. The Jerome case really involves in our view a very different issue. It involved a question of whether in determining whether Congress meant to cover in the burglary section a situation where a person enters a bank with intent to commit a felony. Did Congress mean by felony, felony under the laws of all the states in which case what it would have read into the federal statute all the differing interpretations and definitions of felony, high misdemeanors and misdemeanors that vary in the 48 states or not. It came to the conclusion actually which is supportive of our position that you should not read felony to mean what felony meant at common law and that you should give it an interpretation consistent with the purpose of the 1937 amendment which is precisely the--
Sandra Day O'Connor: If the act had been completed in the Jerome situation, could the government have prosecuted under subsection (b)?
Rudolph W. Giuliani: --Yes, I believe so. It would actually be a taking of the money.
Sandra Day O'Connor: Could the government in the case that we had last term in Williams have prosecuted for the check kiting scheme under this subsection?
Rudolph W. Giuliani: If the scheme had actually been completed in the sense that check kiting you have the ambiguity as to whether or not the person intends to make good on the check in the period of time between the time that they write the check and the time that the check is actually finally negotiated. If, in fact, the person goes through with the check kiting scheme and takes away the money then you really move out of the strict definition of check kiting and you have an actual theft of the money. In looking at the language that was struck by the 1934 Act, the Petitioner ignores several crucial points, and I think makes more of that than the legislative history can sustain. The 1934 Congress as I said before was concerned with a situation of robberies and limited the language to robberies. It was not in any way, didn't evince any concern at all with the coverage of larceny as either being common law larceny or false pretenses so there was not a specific striking of the language because Congress was concerned with any of these distinctions as between common law larceny and false pretenses. In 1937 the new language that was presented was significantly different. It deleted the words Mr. Justice Stevens noted before it also deleted the words "without consent" which would have clearly defined solely common law larceny. So the words that it used "with intent to steal or purloin. " in our view created or evinced a concern with a broad interpretation or at least as broad as the matter that they were concerned about, the assets of federally insured banks.
Thurgood Marshall: Let's get back to the other question that you made. What is there in the legislative history or the rules of the department that delineate a line between state and federal crime on a particular alleged crime?
Rudolph W. Giuliani: Well, in this particular case, Your Honor, the line would be with this particular bank a bank whose actual funds were insured by the Federal Deposit Insurance Corporation so that I--
Thurgood Marshall: You mean the state law would not cover that?
Rudolph W. Giuliani: --No, state law does cover it. This is one of--
Thurgood Marshall: Mine is what line says that this is a state crime and this is a federal crime?
Rudolph W. Giuliani: --In this particular case it would be the federal insurance in federally insured banks, the necessary and proper clause of the constitution.
Thurgood Marshall: You say it was two crimes. This is two crimes, a federal crime and a state crime.
Rudolph W. Giuliani: Yes, Your Honor.
Thurgood Marshall: Is there any procedure in the Department of Justice that says who should prosecute an instance of double crime when it is a crime against two sovereigns?
Rudolph W. Giuliani: There is a formal procedure that exists if a person is prosecuted in one place and then there is the possibility of prosecuting him again because of the possible double jeopardy concerns involved in that. But there is no formal process that takes place in making that decision in advance. Most United States Attorneys have policies that they work out with District Attorneys as to what cases they will take and what cases would be turned over to the Department--
Thurgood Marshall: There is nothing in the record to show why this was brought in the federal rather than the state court?
Rudolph W. Giuliani: --In most--
Thurgood Marshall: No, sir, in this one. There is nothing in this one.
Rudolph W. Giuliani: --No, Your Honor. In most urban areas the local prosecutor is anxious for the federal government to take as many of these cases as the federal government can take because of the tremendous burden on the administration of justice.
Thurgood Marshall: And there is no burden on the federal department?
Rudolph W. Giuliani: Yes, there is, Your Honor, but--
Thurgood Marshall: I thought so.
Rudolph W. Giuliani: --there is a sharing. There is a kind of attempt to share the responsibility and to share the burden. This would be one that would easily fall within a matter of federal interest. The amount of money was $10,000. It was not de minimis. In some of the drug cases there are guidelines that are worked out so that it has to be either a conspiracy case or a case involving a certain amount of drugs for it to involve the federal government and in some of the embezzlement cases U.S. Attorneys have dollar figures that they use to try to delineate the difference between whether the federal government will take the case or the state government. But by any standard that I know of a theft of $10,000 would certainly be enough for a United States Attorney to prosecute it anywhere.
William J. Brennan, Jr.: If this savings and loan association had not been federally insured, could there have been a prosecution under this statute?
Rudolph W. Giuliani: I do not... The statute was expanded in 1950, Your Honor, to cover additional institutions, and it is not limited just to institutions insured by the FDIC. There are a certain number of banks that are not covered. I am not exactly certain what the additional criteria would have to be.
William J. Brennan, Jr.: Not all banks but some savings and loans institutions, I think, are purely state institutions--
Rudolph W. Giuliani: That is correct.
William J. Brennan, Jr.: --without any federal insurance. I just wondered on the face of the statute any bank would seem to mean that you could answer my question yes, but I wondered--
Rudolph W. Giuliani: I think that is further defined, Your Honor, to include only banks that are federal reserve banks, federally charted banks or banks that are insured by the federal government in some way. There are very few banks left that--
William J. Brennan, Jr.: --Any bank in this statute has been so limited?
Rudolph W. Giuliani: --I think it has been, yes, Your Honor.
Byron R. White: How has it been limited? It has not been limited by a amendment of the statute, is it? There has been a construction? By a definition somewhere?
Rudolph W. Giuliani: Yes, further on in the statute, Your Honor, 2113(f) as used in this section the term bank means any member bank, federal reserve system and any bank, banking association, trust company, savings bank or other banking institution organized or operating under the laws of the United States and any bank the deposits of which are insured by the FDIC. So it would not be... There are very few banks left in that category.
Byron R. White: Well, if that were not the case, why it would apply to any bank and it would not make any difference how this case came out. Whatever the reach of this statute it would reach any bank.
Rudolph W. Giuliani: That is correct. Your Honors, there are four principle reasons why we urge this Court to affirm the decision of the Fifth Circuit. First of all the plain language of this statute clearly reaches this conduct. Any ordinary person reading this statute would assume that this person's misconduct was covered by it, and there is no issue here of fair notice or in some way the Petitioner's being treated unfairly because he might have misunderstood what the statute meant. Secondly, the legislative purpose evinced by the 1937 Congress clearly covers all forms of taking from a federally insured bank. That is exactly what happened here and that interpretation, the government's interpretation is in line with that purpose. Third--
John Paul Stevens: May I interrupt right on that point? The footnote your brief quotes, I guess it is a note which I have not read but points out that Chairman Sumners of the House Judiciary Committee in 1934 sought to limit the expansion of federal power just to those situations where there was not really a strong showing of need. I am curious to know and perhaps I should not take your time, but was he still chairman of the committee in 1937?
Rudolph W. Giuliani: --I believe he was. I will check that but I believe he introduced the '37 legislation as well.
John Paul Stevens: That is why it would seem to me... I wonder if he thought it was as expansive as the government's argument would make. Is that consistent with the views he seemed to be espousing in '34? Do you think maybe he changed his mind?
Rudolph W. Giuliani: Well, I actually do not think you have to say that in '37 you need an expansive interpretation of the language of either the statute or the legislative history, just a common sense interpretation of it. The plain meaning of the language clearly covers the misconduct and the '37 Congress was clearly intending to protect banks, federally insured banks, broadly against theft. So I don't think--
John Paul Stevens: And more broadly than '34?
Rudolph W. Giuliani: --That is right.
John Paul Stevens: The only example that was given, and am I correct, and it is the only example that was given was the larceny example?
Rudolph W. Giuliani: It was an example that would have constituted if you use the common law distinctions of common law larceny. However, Your Honor, Chairman Sumners never displayed any interest at all or any concern about whether larceny was defined as common law larceny or taking by false pretenses. He was concerned about in '34 limiting it just to robbery.
John Paul Stevens: Right.
Rudolph W. Giuliani: But in '34 or '37 there is absolutely no concern at all evidenced as to whether it should be common law larceny or larceny by false pretenses. In summation, the views have now been... This question has been passed on by just about every Circuit. I believe nine Circuits have either held or expressed their viewpoint on this, and the split for whatever it is worth is six to three for the government's view. But also the most recent decision and I believe the best considered decision is the Hinton case which was decided after our brief in the Second Circuit and the Simmons case lay out the legislative history very clearly. Finally, to reintroduce these distinctions would just create unnecessary, needless distinctions that have no purpose any longer. It would become difficult to charge under this statute in the sense of bringing an indictment. It would be difficult to charge a jury as to the distinction between possession and title. It would also raise unnecessary issues on appeal that have nothing to do with the underlying equities of why theft or why protection of federally insured banks should be a federal crime. For all those reasons and for the others that we mentioned in our brief, we ask this Court to affirm. Thank you very much.
Warren E. Burger: Very well. Do you have anything further counsel?
Roy W. Allman: May it please the Court. Everything he said was true. The government is arguing what the statute should say and maybe what the law should be, but I am arguing what the law is and what Congress intended the law to be specifically in the development of this law. This law has been specifically expanded and amended and nowhere in all this time since 1934 has Congress taken upon itself to say it covers the crime of false pretenses. It has added larceny and burglary. The government used to argue in Jerome in 1943 it applied to common law larceny specifically. There is no question about that but the definitions are not important. What we have to decide here is the ambiguity of steal and purloin. Is it expansive to the point where it covers crime by false pretenses and the answer is no. Sumner specifically addressed that issue saying he wanted to confine the extension of federal power to those situations where the need to supplement state and local law enforcing agencies had become imperative. It was an emergency-type statute to eliminate bank robberies. It is the bank robbery statute, not the thing that is covered by state law and the statute has not run on a state law in this case with regard to the fact that a man did commit a crime by false pretenses. That is my whole point in this case. 2113(b) is not an expansive statute. It is a narrowly defined and specifically drawn federal statute that does not approach and control for that crime. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.