Earl Warren: Number 52, Jose Terrones Rios, Petitioner, versus United States. Mr. Grossman, you may proceed.
Harvey M. Grossman: Mr. Chief Justice, Honorable Associate Justices of the Supreme Court. Petitioner Jose Rios has been convicted of unlawful possession of narcotics and sentenced to 20 years imprisonment solely on the basis of evidence which petitioner asserts was obtained in violation of his constitutional rights. The evidence was obtained by state officers and previously suppressed in a state prosecution under the exclusionary rule prevailing in California. This Court has granted certiorari to determine two questions. First, was the evidence in question in fact obtained in violation of the constitutional rights of the petitioner or defendant? Secondly, if the evidence was so obtained, was it nevertheless admissible under the so-called silver platter doctrine because obtained by state rather than federal officers? First, the factual context in which these questions have to be resolved. On February 18th, 1957, plain clothes officers Beckmann and Grace of the Los Angeles police force observed the defendant enter a taxicab at the vicinity of First and Flower Streets, an intersection near the Los Angeles Pacific Center. The time was shortly after 10:00 p.m. At the time, neither Officer Beckmann nor Officer Grace had a warrant for search of the cab or the defendant. They had no warrant of arrest. In fact, their own testimony states that they had no idea whatever as to the identity of the defendant, the cab, or the driver nor were they searching for a participant in any known crime. Nevertheless, they testified that they, and I quote, “stake out on the cab and then proceeded to follow it for some two miles until it arrived at First and State Streets”. Now, their explanation for what seems to be rather extraordinary conduct is as follows. First, they state, according to Officer Beckmann's testimony, that before the defendant entered the cab, he looked about up and down the street. Secondly, Officer Beckmann said that some three months previously, he had arrested another defendant not connected or anyway with defendant Rios in the same locality, and this defendant was also using a taxicab, so this paired to be a somewhat suspicious circumstance as far as Officer Beckmann was concerned. And finally, after the evidence was suppressed in the state court, Officer Beckmann testified that he recalled that the airy in question was one with a “bad reputation for narcotics”, whatever that may mean. Now, based upon this rather flimsy fact situation, which the Government itself conceded, do not constitute probable cause, the police proceeded to follow the cab for some two miles in an unmarked police vehicle. When the cab stopped momentarily for a traffic signal at First and State Streets, the police car pulled up behind it. Officers Beckmann and Grace alighted and approached the cab on opposite sides and Officer Beckmann identified himself to the defendant. Now, with respect to Officer Beckmann's intentions in that regard, he testified in the state court that he was investigating narcotics, and later in the federal proceedings, added that it was his intention to see if defendant had any narcotics in his possession.
Speaker: When they went up at the traffic light identified themselves, did they open the door of the cab and make entrance into the cab?
Harvey M. Grossman: The testimony from this point on, I might say, and I was about to get into that, is a bit obscured, because Officer Beckmann told two stories here. He told one story in the state court and after the state court suppressed the evidence, suddenly some months later he recalled the sequence of events a little differently, particularly from the standpoint of the timing of the search and seizure. Originally, Officer Beckmann testified, and I might say incidentally that while there is -- there are differences in the two factual presentations, we don't believe probable cause has established even if we take the best of the many versions which Officer Beckmann testified to. And I might add that the state court's testimony was received in evidence in the federal prosecution pursuant to stipulation that Officer Beckmann would have testified the same at that time although he did proceed to get a different story. Now, according to the original report Officer Beckmann filed shortly after the events in question, when he identified himself to the defendant, he saw the defendant extract a white object from his pocket. At that point, Officer Beckmann said he opened the door of the cab. He states he didn't saw the defendant drop an object at his feet. Now, when the officer testified in the federal court after the state court had suppressed the evidence, he testified somewhat differently. This time, he testified that the defendant dropped the object before the door was opened. And that now, it was not only Officer Beckmann but the defendant and Officer Beckmann who opened the door, a somewhat different version. The cab driver who was called as a witness for the Government in the trial court, and I think was the only disinterested observer on the scene and whose testimony therefore would be entitled to some weight here, when called by the Government testified that while defendant was still in the cab, Officer Beckmann opened the door, grabbed defendant by the arm and brandish a revolver at which point the cab driver states he protested that while he was accustomed to routine police stopping at his cab and searches, the presence of a revolver seemed a peculiar circumstance and he felt that the officers' conduct was unjustified and testified he complained to Officer Beckmann. So the cab driver's testimony corresponds with the original version of Officer Beckmann's testimony, namely, that Officer Beckmann opened the cab door, the cab driver adds he grabbed his arm, and this was prior to the time the object in question apparently had even been dropped. Now, Officer Beckmann testifies as to two versions of the following events also. In his original testimony, he states that after the object was removed from the defendant's pocket, at this point, we only know there is a white object, this is all he has noted, defendant dropped the objects on the floor of the cab, there's nothing said of any inspection and tempted to alight. And at that point, Officer Beckmann grabbed him by the arm, according to his testimony, and said to the defendant, “You're under arrest.” Beckmann then told his partner Officer Grace, “Pick up the object.” This was done and Officer Beckmann now observed that it appeared to be a white contra -- a contraceptive containing a white powder. So that this is the first point, according to the original version of which Officer Beckmann even had occasion to examine the object at all. In the federal court, he adds an additional fact somewhat contradicting his original story. Now, he testifies that before the defendant alighted from the cab, Beckmann momentarily flashed his light on the object and observed. It appeared to be a contraceptive with some sort of light colored object in it, although, here again, he acknowledged that he didn't really recognize the nature of the object as resembling a powder-like narcotic until after it was handed to him by Officer Grace. At that point, the arrest was not only made in fact but Officer Beckmann had previously told the defendant “You're under arrest,” and grabbed him by the arm. He then, as I say, examined the object with the view to ascertaining its contents and noted apparently for the first time which he had not truly to do so that it appeared to contain some sort of a white powder which later investigation proved to contain heroin. Now, Officer Beckmann, and I -- and I bring this up merely, because in light of the contradictory stories the officer told, his attitude toward the defendant may bear some irrelevance here, then proceeded to pursue the defendant into an alley where he was subdued -- where he subdued the defendant by stopping him and according to his testimony shooting him in the back apparently and beating him with what he referred to as a sap or a blackjack. Now --
Potter Stewart: What he referred to was that?
Harvey M. Grossman: A sap or blackjack. Officer Beckmann stated he subdued the defendant after he'd shot him and defendant followed he beat him with a sap which appears to be a -- where he used for his blackjack.
William J. Brennan, Jr.: What was the circumstance into which he shot him, did you say?
Harvey M. Grossman: Well, he testified, and I might say, this is rather peculiar for this reason. Officer Beckmann testified he shot the defendant while they were alone in an alley, but for some reason, was somewhat reluctant to reveal the testimony after this sequence of events even when he was on the stand. He said that he stopped the defendant. His testimony, at least at one point, was he stopped the defendant and that is when he shot him while the defendant was faced away from him and therefore, of course, shot him in the back that defendant began --
William J. Brennan, Jr.: Well, how distant was this on the fact here?
Harvey M. Grossman: This was after he pursued him into an alley. I imagine a distance of perhaps half a block to a block --
William J. Brennan, Jr.: But --
Harvey M. Grossman: -- from the cab.
William J. Brennan, Jr.: But did the defendant plead with it?
Harvey M. Grossman: The defendant apparently -- yes. After -- after the arrest, he protested his innocence to the officer after the arrest and then attempted to pray for the officer breakaway whereupon the officer pursued him and told him to stop and stopped him, and then after he had stopped, shot and beat him, as I've indicated. Now --
Potter Stewart: Did the defendant testify as to what went on, Mr. Grossman.
Harvey M. Grossman: No. The defendant -- there was no testimony at all by the defendant. The only evidence here, and this, I say, is surprisingly alleged in the various versions and conflicts here. These are all stories by the state police. The only evidence introduced was evidence for the state police and the facts, I have related, are based solely on the testimony of the state police officers and the cab driver called as a witness for the Government. Now --
Potter Stewart: It was a motion to suppress of course.
Harvey M. Grossman: Yes. I was about to mention.
Potter Stewart: Did the defendant testify?
Harvey M. Grossman: No, he did not testify on the motion --
Potter Stewart: Not at all.
Harvey M. Grossman: -- to suppress.
Potter Stewart: Either there at the trial.
Harvey M. Grossman: No.
William J. Brennan, Jr.: Well -- well, there are two motions, one is state motion to suppress --
Harvey M. Grossman: One in State and one in federal and the defendant did not testify on either motion.
William J. Brennan, Jr.: Had the officer testified on the federal motion to suppress?
Harvey M. Grossman: He testified on state motion also.
William J. Brennan, Jr.: Well, was he interrogated cross-examined under the -- at the federal hearing on the conflicts between the state and federal testimony?
Harvey M. Grossman: Attempts were made to cross-examine him however, the trial judge took the position that the extent or the impeachment consisted in simply reading into the record the contradictory statements and would not permit any further cross-examination to bring out these inconsistencies. And I might say that in the course of the federal hearing, when effort was made to question Officer Beckmann as to his intent in connection with approaching the cab and the events in question which we deemed entirely material, the Government objected on the ground that the intent of the police dip matter one bit, a somewhat different position that the Government is now urging, and that objection was sustained and that line of inquiry was stopped, so that efforts to bring out these contradictions and so on by cross-examination were restricted as it appears in our brief and we've cited the pertinent passages. Now, following the events I've related, a trial was held in the state court. And at this trial, the trial judge suppressed the evidence and unlike Elkins, the record in this regard here is quite clear. A motion to suppress was made and granted under the state exclusionary rule on the ground that the evidence was seized unconstitutionally on the basis of a search seizure and arrest without probable cause.
Felix Frankfurter: He's also placed after your Supreme Court decided the Cahan case, I take it.
Harvey M. Grossman: This was all under the Cahan case, yes, sir, Mr. Justice Frankfurter.
William J. Brennan, Jr.: When you say unconstitutionally, that is violation of the state or federal court?
Harvey M. Grossman: Well, the -- I can only say that the state court held it unconstitutional. And apparently, from all that appears in the record regardless that it was unconstitutional under both the state and federal constitutions.
Potter Stewart: Where does its holding appear in the record? Is it in the record?
Harvey M. Grossman: Yes. It appears in the record. Actually, there at page 24 of the record, near the bottom of the page, he states after reviewing the -- after stating -- I can't possibly see how this arrest could had originally been attempted under the information the officer very frankly tells us that he had. And I don't think any reasonable man would think a felony had been committed because a man comes out of a building, looks up the street and so forth, and then he states that your motion to suppress the evidence will be granted. The people rested. At that point, they put on no further evidence and therefore, since the only evidence they'd offered, and this was also the only evidence actually the Government offered essentially at the state court -- at the federal trial had been suppressed. Naturally, it followed that a judgment of acquittal was entered. So it's clear that the evidence here was suppressed by the state court. Now --
Felix Frankfurter: It wouldn't make any difference if they said it was on -- it might make a greater question of res judicata say gone on the ground of -- a consistent ground of federal -- a violation of a federal law but --
Harvey M. Grossman: Well, I might --
Felix Frankfurter: -- I don't see how reading that page Mr. Grossman I can -- I can find anything on which to hang that he decided the federal -- that he adjudicated the federal issue.
Harvey M. Grossman: No, there's nothing specific -- we -- we recognize that it is somewhat ambiguous as far as the federal versus state issue is concerned.
Felix Frankfurter: Well, I think it's more than -- it's less than ambiguous because he expresses his view of great freedom in preferring Justice Carter's well-known view.
Harvey M. Grossman: Yes. Now, as I have stated the -- as I have stated, the evidence was suppressed by the state court. And Officer Beckmann -- and in this case, there's another distinguishing factor from Elkins just argued, and that is this. After the evidence was suppressed by the state court, there is no question even under Officer Beckmann's own testimony but that he went to the federal authorities after he consulted his superiors and presented the prosecution of the facts upon which the prosecution had been based to the federal authorities and consulted with them, whereupon, in fact he stated that he was the -- he acknowledged, he was the instigator of the federal prosecution.
William J. Brennan, Jr.: And in other words, this is to say -- this case is very clear that federal authorities never heard any of these and so the officer came to them.
Harvey M. Grossman: That's quite clear, Mr. Justice Brennan. There's no question as to that. Now, the federal authorities then prosecuted defendant for unlawful possession growing out of the very same transaction involved here. The Government stipulated on the motion to suppress that the very same possession was involved and they intended to introduce the same evidence the state court had suppressed. So that in effect here, the state officer had crossed the street to the federal courthouse and now, another prosecution was under way a federal prosecution arising out of the same set of circumstances. The motion to suppress was denied. The trial court, being of the view first that he didn't feel there was an unlawful search and seizure. And secondly, that even if there was, this didn't really matter because the silver platter doctrine meant that the evidence would be introduced in the absence of evidence of federal participation. And the trial judges views in that regard, I think, are reflected in the fact that when we endeavored to cross-examine Officer Beckmann as to any general patterns of cooperation, which the Court on its own motion objected to the line of questioning stating that the only thing pertinent as far as cooperation under silver platter is concerned, was cooperation on the particular case involved, and we question the soundness of that even under the silver platter doctrine. Now, the Court of Appeals for the Ninth Circuit affirmed on the same grounds that the trial court had rendered its decision. And this Court granted certiorari to determine first the unconstitutionality of the search and seizure and secondly, the silver platter doctrine in the event that search and seizure were held to be unconstitutional.
Speaker: Is the Court of Appeals correct in saying that you did not contest before that Court the illegality of the search and seizure?
Harvey M. Grossman: No. Let me -- may -- may I state, and the Government made a very brief reference and I think the gravity of the Government's reference is due to the fact that quite clearly in the trial court, we stated that after the trial court considered it had a right to review the facts independent of the state court's determination and rejected our contention that they were precluded by the state court's determination. We stated that without waiving our rights in that regard, we would now proceed to try the illegality of the search and therefore, we present it in evidence. The transcript of the state court proceedings and argued at some length in the trial court that the search and seizure was unlawful. Our initial position had been that the Court should not get into that because of the state court's determination but as a second position when the Court declined to do so, we took the position that we would establish the unlawfulness of the search and seizure de novo and made every effort to do so. So that it is not correct that we did not challenge the unlawfulness of the search and seizure, we simply said that while we believe it's an unlawful search and seizure, we also don't waive our claim that the state court determination here precludes a federal reexamination. And if --
Speaker: But what does -- what does this means then in the Court of Appeals opinion that says Rios, it's talking about the argument in the Court of Appeals, not within the District Court, Rios, is it not argued that the evidence submitted to the federal court fails to support the findings and the conclusion of the evidence that they received?
Harvey M. Grossman: Well, I might say that the only explanation for that, Mr. Justice Harlan, maybe that as a result of extensive interrogation in the Court of Appeals on the question particularly of the silver platter doctrine and the effect of some of these Court's opinions our argument -- our oral argument at least did not get in, in great length to the unlawfulness of the search and seizure --
Speaker: With your brief?
Harvey M. Grossman: We discuss -- we discuss the search and seizure in the brief, yes, the -- the question of unlawfulness. And it's quite clear we have never -- I might say that we never conceded that the search and seizure was lawful. In fact, we have always maintained that the search and seizure was unlawful. It was our position as I state that since this was prior to the decision of this Court in Abbate and -- and Bartkus and the limited grants assert here that it wasn't proper for the state court to reexamine the issue in terms of the unlawfulness of the search and seizure. And we believe that in terms of emphasis, I can truly say that we emphasize at that point would seem to be the -- a principal point, namely that there was no need to determine the unlawfulness of the search and seizure because on the facts of the state determination, that issue was foreclosed from federal reexamination. And what we said in effect was, and I gather this perhaps made here some relation to what the Government said in the Elkins case below, although I'm not too familiar with the record in that case. What we said was the question of illegality isn't really one which has to be reached here because we don't feel that there's any basis for reexamination or redetermination of the question in the federal court. But in the Federal District Court, we made a record and we -- among our statement of grounds, we definitely included within the compass of that, the assertion that the evidence was obtained by unlawful search and seizure, and as I say the state court, the -- if the judges of the Court of Appeals had any indication that that point was not being pressed, I frankly don't feel that --
Speaker: Well, they don't discuss it in their opinion though.
Harvey M. Grossman: No, they didn't discuss it in their opinion. In fact, there were many contentions we raised in the Court of Appeals that they didn't discuss in their opinion and -- such as the questions we raised as to the application of the silver platter doctrine and the possible McNabb approach and so on which we had suggested in argument. I mean their -- their opinion treated the matter as a rather routine one and -- and left many of the questions unanswered. Most of the Court of Appeals' opinion is devoted to the Jencks rule which was about the last point in our brief and one which we didn't even present here and which was really a minor point in our argument, but one which apparently intrigue the Court of Appeals sufficiently that they seized upon this as the principle subject to their discussion, perhaps dealing with the silver platter doctrine was so firmly established that these other questions were too important. But as I state, we did contest, we did contest and the reading of the record in the District Court will show quite clearly that we clasp the unlawfulness of the search and seizure and we certainly do so here. Now, the question then, we submit, is, was there an unlawful -- search and seizure --
Felix Frankfurter: Would you agree, Mr. Grossman, the Court of Appeals is right in saying the silver platter doctrine claims that it's not very colloquy to describe what it is, presupposes illegalities. Otherwise, there's no problem.
Harvey M. Grossman: Well, I think --
Felix Frankfurter: I don't draw any inference from that. I don't draw conclusions. All I'm saying is that isn't that so?
Harvey M. Grossman: I believe that --
Felix Frankfurter: So what is the problem?
Harvey M. Grossman: Well, I believe the -- the silver platter doctrine at least as it was applied certainly as it is applied here and -- and I would agree with --
Felix Frankfurter: But it isn't applied in any of the cases in which -- in which it was -- in which this Court has been dealing is the effect upon the use of materials, evidentiary materials obtained under questionable circumstances and more particularly illegalities by state officers who precluded submission to the federal court.
Harvey M. Grossman: Mr. Justice Frankfurter, that is correct. I think that in all of the silver platter doctrine, the question would not be involved, there was no question of illegality were involved and that is -- that is a presupposition of the silver platter doctrine if we assume that to be a valid doctrine.
Felix Frankfurter: Well, that's a different question. All I'm saying --
Harvey M. Grossman: Yes.
Felix Frankfurter: -- is one statute.
Harvey M. Grossman: Yes. And -- and therefore, we submit that the first question here is to determine the unlawfulness of the search and seizure. Now, our belief is that the question of the unlawfulness under state law in light of the state court's determination is not properly a matter for reexamination in the federal courts, but we think there is another matter which the federal courts may properly examine at least, and we particularly submit this in light of the limited grant of certiorari here, and that is, whether aside from violating the state constitutional standards, the search and seizure here violated federal constitutional standards because it was made without probable cause. And that gets us to in a sense to the heart of the problem of unlawful search and seizure as it's presented here. Now --
Felix Frankfurter: That -- that your -- the problem -- the first thing that you put presupposes that the -- the Fourth Amendment is binding upon state agencies in the state.
Harvey M. Grossman: No --
Felix Frankfurter: I'm not saying that -- that answers the -- all the problems we have had. But when you say that at least the assumption must be when you say you must inquire whether what state officials did would be if done by federal officials be a violation of the Fourth Amendment, you certainly imply that the restriction of conduct upon the police constituting unreasonable search and seizure condemned by the Fourth -- Fourth Amendment is a restriction upon state officials. Is that right? It must be so otherwise what's its relevance?
Harvey M. Grossman: Well, may I say this. We -- we think that the -- well we believe that the guarantee of freedom from arbitrary police invasion of privacy contained in a Fourth Amendment is implicit in the concept of our liberty as described in the Wolf case.
Felix Frankfurter: But the Wolf case has decided the contrary. You may ask this Court to overrule it.
Harvey M. Grossman: Well --
Felix Frankfurter: But how you can say it when most of the states of the Union say the other thing, and this Court has said that their rules of law are not violative of the Fourteenth Amendment, I don't understand. I don't understand your argument without taking that attack but I can understand that kind of legal goulash.
Harvey M. Grossman: Well, may -- may I say that while -- and -- and I shall proceed to this point later, while we believe that the Wolf holding, insofar as the constitutional question is involved, took the position that while evidence unlawfully seized may not be excludable in the federal courts, that nevertheless such -- where the state sanction such unlawful searches and seizures, it is acting in violation of the Fourteenth Amendment, we think that there is -- it is not necessary actually to rest this case solely upon Wolf, because after all, the final analysis we are dealing here with federal courts. In the Wolf case, the Court was confronted with the very different problem, because there, the only possible reach of the Court in -- in a sense or -- or basis for the Court to apply was due process because we had state courts and state officers.
Felix Frankfurter: I understand. I follow you. I follow all that.
Harvey M. Grossman: Here -- here --
Felix Frankfurter: I am understanding it, I think, but what I -- are you intervening when you suggested we're going to embark upon an inquiry whether the search and seizure by the two police -- by the policeman and the policewoman constituted a violation of the Fourteenth -- of the unreasonable search and seizure under federal law. And -- and I suggested that that is -- mixing up things.
Harvey M. Grossman: Now, insofar as the question of the unlawfulness of the search and seizure and I -- and I believe it was my intention to -- to indicate that the standards which were laid down by this Court in the cases involving exclusion of evidence seized by federal officers which we believe are pertinent to the application of an exclusionary rule by state officers regardless of whether it is deemed to rest upon constitutional grounds or on grounds of supervisory powers or whatever grounds it may rest upon. We think that certainly, determining whether the evidence was seized with or without probable cause which both the states and federal governments with practical unanimity apply as the test of a lawful search and seizure is one that lies at the crux of the problem. Now, in that regard, we believe that this case presents facts which lie outside the periphery of the area of permissible search and seizure as this Court described the facts in Brinegar and in the Carroll case, because in those cases, the facts involved a driver and a vehicle recognized as having been lately involved in unlawful operations, whereas in the present case, the -- and also was heading for a probable illegal market. In the present case, the police testified they had no idea as to who this defendant was or what the taxi cab was and so on. In other words, it's not surprising the Government concedes a lack of probable cause at the outset of the transaction. Now, we submit that events that occurred later in the course of the transaction cannot validate an enterprise embarked on according to the police to see if defendant had narcotics in his possession, cannot validate an enterprise unlawful from its beginning and further that even at the time the police made their formal arrest of the defendant, even after they'd grabbed him, Officer Beckmann had reached them and grabbed defendant by the arm and so forth, even then there was no probable cause because it wasn't till the defendant had alighted from the taxi cab and been placed under formal arrest. Not only under a -- an arrest in fact similar to that in the Henry case recently decided by this Court. It wasn't until then that the police first really made any real observation of this object and then determined that it appeared to be a container of a narcotic powder. And we submit at that point certainly the police could not justify the prior course of conduct. In other words, while the transaction was unlawful from its inception and the search and seizure began at an earlier point, we submit probable cause doesn't come into the picture until a much later time. Certainly, Officer Beckmann's later suggestion that he flashed his light on the object and momentarily viewed it while defendant was still in the cab which is certainly in about face from his original state court testimony which the Government vouched for and entered in and stipulated to introduction of in the federal court proceeding. We don't think that an officer should be able to justify conduct in a probable cause theory on any such flimsy ground.
Felix Frankfurter: Mr. Grossman, I -- I -- I'm very eager to understand and follow your argument with understanding, am I right in saying that the last that you -- the last -- what you've said during the last few minutes in analyzing and critically commenting upon the conduct on Beckmann and Grace, it's precisely the argument you would make if this had been a federal prosecution and Beckmann and Grace had been FBI agents.
Harvey M. Grossman: Yes.
Felix Frankfurter: Am I right about that? Precisely, you would make that argument if this were Beckmann and Grace had been narcotic agents, let me say, and that had done what they had done, what Beckmann and Grace did, and they'd made the arrest and they had followed the prosecution in federal court, is that right?
Harvey M. Grossman: That is correct, Mr. Justice Frankfurter.
Felix Frankfurter: -- before I go back to my question, that the assumption in the light of validity of that argument is that the limitations upon arresting power and searching power, a federal enforcing authority, a federal law officer, by virtue of the Fourth Amendment, bind the states and therefore the state's officials. That must be the implication otherwise I don't see the relevance of that argument.
Harvey M. Grossman: Well --
Felix Frankfurter: It may -- may be so but although I want to know what --
Harvey M. Grossman: Yes.
Felix Frankfurter: -- I'm dealing with and not have my mind confuse.
Harvey M. Grossman: Well, it is our position that the -- that while the same facts relating to illegality would be presented in either case as posed by the justice, that the basis of exclusion would not necessarily have to be the same. It may very well be that we would attempt to show either case that the officers acted in the absence of probable cause. But having established that fact, then determining why this Court should exclude the evidence could be based, of course, upon an argument. And we submit that one of our bases for so urging would be the constitutional argument, namely, the Fourth and Fourteenth Amendments. And I might say that the Fourth Amendment, I think, comes to the play here in a somewhat different way. And I'd like to get back to something Mr. Justice Harlan referred to yesterday. \We're dealing here with federal action regardless of whether we're talking about state or federal officers because there are federal courts involved here. And to say that the Fourth Amendment -- and I will take issue with Mr. Counsel Wiener's argument on this point yesterday. We submit that the Fourth Amendment has a very vital part here because to say that the Fourth Amendment applies to federal officers is only part of the story. We submit that it should very well apply to actions of the federal courts, so that we don't have to reach the Fourteenth Amendment in this case.
Felix Frankfurter: The federal court didn't make any search and seizure. The federal court comes into play because evidence was admitted which, under your contention, was illegally obtained by state officials and then given to the thrust of the United States prosecutors. I'm not -- I -- all I --
Harvey M. Grossman: We submit that --
Felix Frankfurter: I'd like to have an analysis that I can understand. I can understand you're saying the whole case should be overruled. And I can understand your saying the Fourth Amendment applies to State. I can understand those propositions, but I can't understand arguing and not tenably saying we think Wolf was wrong. We think the Fourth Amendment also applies to the State and therefore its officials. Not doing that, accepting the Wolf case, and going on and arguing as though this conduct was by federal officials.
Harvey M. Grossman: Well --
William O. Douglas: This, I -- I think your argument -- I thought it was fairly obvious this is a federal prosecution. It's the same -- the same as if the federal -- federal officials had -- had employed these state officials to do this job in effect it see -- they're getting they're -- they're getting the benefits of an illegal state action that would be illegal by our federal standards.
Felix Frankfurter: You started out your argument by saying quite candidly in answer to Justice Stewart's question that in this case, there is no controversy that there was any collusion or stimulation or whatever word you used, any kind of relationship whereby federal officials made use of state authorities and to say it's all the same whether federal people did it or didn't it, is to confound counsel.
Harvey M. Grossman: May I state if -- if I --
Felix Frankfurter: Maybe as a matter -- in fact the result maybe the same. But I'd like to add some theories on the basis for understanding the claim that you made.
Harvey M. Grossman: If -- if I mislead Mr. Justice Stewart in that regard, I do not mean to. It was my suggestion by way of clarifying the question he posed to indicate that in this case, unlike Elkins, the instigation of the federal prosecution without question was one by the state officers, because the state policeman said when I couldn't get my name convicted in the state courts, so I consulted my superiors and we decided the best way to do it then was to go over to the federal courthouse, and I then went over and told them about the facts and instigated a federal prosecution.
Felix Frankfurter: But all of that -- followed what they did in getting the incriminating materials, isn't that true?
Harvey M. Grossman: Well, in terms of --
Felix Frankfurter: (Voice Overlap) true that the incriminating materials were -- were brought by them without any knowledge or collusion with stimulation through the federal officials.
Harvey M. Grossman: Well --
Felix Frankfurter: Is it or is it true?
Harvey M. Grossman: May I say in answer to that question, Mr. Justice that we believe that while -- there was no participation. We agree there was no participation by the federal officers the time Officer Beckmann and Grace approached this cab. As a matter of fact, if Officer Beckmann, and this was relevance to any suggestion that there was any -- that there was the danger bungling state officers interfering with federal prosecutions when they well asked if Officer Beckmann and Grace had never made the search and seizure and turn this evidence over to the federal authorities, how in the world can we assume that there would have been a federal prosecution. Now, when they came to the federal authorities, we quite frankly believe that with the federal authorities should quite properly have done. And if the Court decides this case, as we are urging it to be decided, would do would be to say having obtained this evidence unlawfully, we cannot -- we will not land our aid and neither can we invoke the aid of the federal courts.
Felix Frankfurter: I can understand but will you please answer my question whether there was any participation, stimulations, suggestions, knowledge on the part of the federal authorities when Beckmann in the -- regarding the circumstances by which Beckmann and Grace stopped the cab, made a disclosure of their identity, arrested these people and took the materials. Was there any --
Harvey M. Grossman: Not a -- not at the time of the search and seizure, Mr. Justice.
Felix Frankfurter: Well, that's what I'm asking you. I'm now asking you whether (Voice Overlap) --
William O. Douglas: But that's been claimed all along. I -- I thought your argument was that -- was irrelevant because this --
Harvey M. Grossman: It -- it is our --
William O. Douglas: -- evidence is being used by federal agencies --
Harvey M. Grossman: It's our position --
William O. Douglas: It may be with --
Harvey M. Grossman: -- with full knowledge of what -- how it was required.
William O. Douglas: It is our -- position, Mr. --
Felix Frankfurter: I understand that argument, but will you please answer me whether there was any participation, any sharing --
William O. Douglas: There were --
Felix Frankfurter: -- in the way in which these materials were obtained.
William O. Douglas: I think your briefs (Voice Overlap) --
Harvey M. Grossman: No. Mr. -- Mr. Justice Frankfurter --
Felix Frankfurter: Are you arguing this case?
Harvey M. Grossman: Mr. Justice Frankfurter, it is our position that there was no participation at the outset at the time the search and seizure was conducted, and that of course is the reason we have asked this Court to reject the silver platter doctrine. Obviously, if the case was one in which there was participation in the particular case, the silver platter question would never have reached this Court.
Felix Frankfurter: But it isn't always clear whether there's participation or not and that is a contested issue.
Harvey M. Grossman: Well, in this --
Felix Frankfurter: And it might be in this case.
Harvey M. Grossman: In this case, there is no participation --
Felix Frankfurter: All right.
Harvey M. Grossman: -- except the fact that the evidence, when turned over by Officer Beckmann, was being used, prior to that time, there was no participation. Now -- but it is our position, and getting back to the some of the questions previously posed that even in the absence of participation, the federal court, either on constitutional ground, which I've already mentioned or on the basis of the McNabb approach, in the exercise with supervisory over -- powers over the federal courts, should not say granted this evidence was seized without probable cause, granted if it had been seized by federal officers that we would reject it, granted that we believe that with the state sanctions unlawful searches and seizures, it is acting in derogation of the Fourteenth Amendment and granted that the states in an effort to preclude unlawful searches and seizures has attempted to exclude this evidence and to discipline its officers. Nevertheless, we feel that if the officer comes into the federal court in such a situation, we will permit him to introduce this evidence in a federal prosecution. Now, I might say at that point that the exclusionary rule of the state courts is a matter which can't be ignored by this Court because assuming the Court is merely can deal with the problem as one in the exercise of its supervisory powers in fashioning a rule in the exercise of those powers, can the Court properly disregard the fact that 21 of the states in which the rule is going to be applied, 21 or almost half of the states now follow the Weeks rule. And in those states, the disciplinary effect of the state rule will be seriously undermined if the state officers need only do what Officer Beckmann did here and cross the state -- the street to the federal courthouse, nor can it be said that, as was indicated in the Wolf opinion, that proper respect is being given to the state judicial processes and the rights of the state to choose their methods when California finds the only means it has to exclude unlawfully seized evidence, or I should say to deter unlawful searches and seizures, is to exclude evidence unlawfully seized as well explained by Justice Traynor in the Cahan case and the courts nevertheless state that where the state attempts to invoke the exclusionary rule, a federal court will lend its aid to such an undertaking. And I might say there is another aspect of the problem in shaping the rule that bears consideration. And that is this. This isn't simply a case of bungling by state officers which embarrasses a federal prosecution. Not only was this a prosecution which was first called to the attention of the federal authorities by the very state officers who made the unlawful search and seizure, but this is a case where, assuming our contention as to the facts to be correct, there was a search and seizure without probable cause in violation of constitutional standards laid down by this Court as well as by the California courts. Now, such a search and seizure, we submit, doesn't involve mere bungling. It involves an invasion of constitutional rights which should be deterred and while it maybe that an individual in a given case would go free if the exclusionary rule is invoked in such a case, and the same course is true in a federal prosecution where federal officers are involved, we submit that whereas -- certainly where the states have gradually been determining that the only effective means of enforcing the constitutional guarantee is to exclude the evidence, that the federal courts should not say, well, we believe that where state officers were involved in spite of the fact the states may feel the contrary, the need to convict the defendant outlays the need to deter invasions of his constitutional rights. And so we submit that this isn't the case of mere technical or minor violations but one of very serious violations of rights.
Potter Stewart: Mr. Grossman, are we -- is the basic issue here simply want us to whether or not, we're going to promulgate a rule of evidence for the federal courts under our rule making power?
Harvey M. Grossman: We believe this -- yes, we believe that this case can very properly be resolved as a rule of evidence for the federal courts. And that --
William O. Douglas: Under the McNabb --
Harvey M. Grossman: Under the McNabb approach. In other words, this (Voice Overlap) --
Potter Stewart: Well, under -- under specific --
Harvey M. Grossman: -- constitutional question.
Potter Stewart: -- rule making power that they had.
Harvey M. Grossman: It has the rule making power. And unlike a situation such as Wolf where deference to the state court rule making power is involved, if this Court were to say, “Well, it isn't for us to decide what evidence is to be admitted or excluded,” one, they will ask, “Who is going to assume that function?” So we believe that the disciplinary rule can be invoked as a rule of evidence in the federal courts. And further we submit that regardless which approach the Court takes here, the Court is going to be fashioning a rule of evidence because if the Court should adopt the silver platter doctrine and say that regardless of the question of illegality, the fact that state officers seize the evidence, makes it admissible whereas a federal officer seizes it, it's not admissible, this, in itself, is fashioning a rule of evidence. So this Court has to pass essentially on the question of fashioning the rule of evidence. And we believe under the McNabb approach, the proper rule is --
Potter Stewart: Well, quite apart from McNabb, we have the expressed statutory and -- power in the field of evidence to make the rule --
Harvey M. Grossman: That is correct.
Potter Stewart: -- based upon reason and experience, is that not true?
Harvey M. Grossman: That is correct. And we believe reason and experience dictate under the rule making power of this Court that the evidence which is obtained under circumstances of this case should be excluded. And in fashioning such a rule of evidence, this Court, as Mr. Justice Stewart has observed, would merely be fashioning a rule within its general rule making power. And we submit that that is all that's necessary here. So --
Felix Frankfurter: Well your qualifications under the circumstances of this case that implies that under one set of circumstances, which I think was what the Brandeis dissent indicated, under one set of circumstances, you would exclude and another set of circumstances, you would not exclude but would not turn it merely on whether or not there was illegality on the part of state officers. You said just now under the circumstances of this case.
Harvey M. Grossman: Well --
Felix Frankfurter: Were there any -- in the other case, there was an argument that they were horrendous, that they were really shocking circumstances, Mr. Wiener said. Are there any particular aggravating circumstances in this case?
Harvey M. Grossman: Yes, we -- we believe that there -- that there are, if the Court takes the approach that that is the -- is the standard to be applied.
Felix Frankfurter: MAnd I can understand the flat rule that any -- any evidence obtained illegally by state enforcing officers, then put at the disposal of federal authorities, is to be excluded in the federal courts. I can understand that, but my inquiry was aroused by your qualification in the circumstances of this case.
Harvey M. Grossman: Yes. May I state in that regard that we believe that if a case by case approach were adopted, well, we don't -- we do not expressly advocate that as a rule because we think a much simpler rule of evidence among which would serve much more purposely to discipline state officers would be the same categorical rule applied in the case of federal officers, rather than telling them that they must, at their hazard, determine whether they are seizing it too unlawfully or -- or unlawfully enough even if the approach of the case by case analysis were taken here. We think that a case where a search is made without probable cause is a far greater thing than even a search in an effect of warrant, because it puts the police officer, in a sense, in the role of the one who is acting, enacting, I might say, without the sanction of the probable cause which the courts have -- have indicated as a proper standard. In other words, we think even if a case by case approach were adopted in the case of unlawfully procured evidence, where lack of probable cause is involved, and practically every case, this would be a case where the Court should exclude the evidence, because to do otherwise would be to say that, for instance, if the good faith of the officer were to be the controlling factor, then he, rather than the judicial authorities, would be the ones to decide the test of probable cause, because if he thought probable cause existed, he'd be in good faith, and if no probable cause existed, there's nothing the federal courts could do about it.
Felix Frankfurter: One wouldn't be casuistic to suggest that a search made on the basis of a warrantless warrant, an illegal, unsupportable warrant is worse than an officer doing it on his own, because you cloak yourself with legal authority and make yourself the agent of judicial authorization when in fact you haven't got it. So then one might say that's worse than the --
Harvey M. Grossman: This --
Felix Frankfurter: -- taking out the right to seize.
Harvey M. Grossman: May I say --
Felix Frankfurter: All I'm suggesting is the difficulties of drawing these lines.
Harvey M. Grossman: Well, the difficulties of drawing the lines of the reason I had suggested, if the Court please, that perhaps an absolute prohibition without drawing the lines is done in the case of federal officers is the proper approach because that avoids the --
Potter Stewart: If you --
Harvey M. Grossman: -- amount to the problem.
Potter Stewart: -- if we're going to proceed under the rule's enabling act it -- that is a general rule, is it not? (Voice Overlap) --
Harvey M. Grossman: Yes. And we're -- we're contending -- we believe the proper approach and the proper rule would be a general rule of exclusion because the very problems which Mr. Justice Frankfurter refers to could properly be avoided by simply laying down as a rule of evidence a general rule. And in that way, we avoid problems not only of measuring degree of unlawfulness. We avoid problems of injunctions as in the Elkins case. We avoid problems of federal state conflicts by permitting state officers to circumvent state exclusionary rules as happened in -- in our case. We avoid all of these problems by simple clearcut rule of evidence which we think is founded on proper policy consideration which we've outlined at length in our brief. I would like to save the remainder of my time for rebuttal if I may.
Felix Frankfurter: Let me -- may I suggest that hardly any rule of evidence is without qualification, whether the hearsay rule or the best evidence rule or the etcetera, etcetera. So that what you call a simple rule of evidence has not -- it's analog in the domain of evidence.
Harvey M. Grossman: Well, may -- was that a --
Felix Frankfurter: I'm merely suggesting that a simple rule doesn't mean that the -- be -- it has to be unqualified.
Harvey M. Grossman: No. I -- I would like to state that the rule which we had in mind could well be fashioned in light of federal exclusionary rule which we think would serve as a good guide in fashioning a rule in this area under the rule making power of the Court. Thank you.
Earl Warren: Mr. Wilkey.
Speaker: Mr. Chief Justice, may it please the Court. The Government position in the Rios case is in three parts. First of all, we take the position that on the facts of this case, there was no arrest until after the officer had seen and identified the contraband. And that -- and an officer walking up to a car and identifying himself does not constitute an arrest. Secondly, that there was no search and seizure --
William J. Brennan, Jr.: Mr. Wilkey, which version of the facts was factually to take?
Speaker: Well, Mr. Justice Brennan --
William J. Brennan, Jr.: For the -- for the purpose of this argument.
Speaker: -- we don't agree that there are contradictory versions. We think that what happened in the three times that officer -- the officer testified. He was asked different questions by the different counsels. And the federal judge, in making his finding, said one of the reasons he was making a different finding from the state court was that additional testimony had been adduced. And I don't find anything contradictory in Officer Beckmann's testimony. I find that he elaborated on and explained more in detail of what he had said before but I find no contradictions in that. That's what I believe.
William J. Brennan, Jr.: Well, for the purposes of this argument what's your version of what in fact he did?
Speaker: I'll give you that one, two, three, four, Your Honor. The third point I want to mention I'm going to reach is -- or second point that there's no search and seizure in illegal sense at all, that this was abandoned contraband. The third point that this Court should not adopt any exclusionary rule here excluding the evidence in the federal court and the silver platter doctrine. And now, Mr. Justice Brennan, in regard to these facts, first of all, the officers were intentionally placed in a neighborhood with the second worst reputation in Los Angeles for narcotics activity. And this very officer had made most of his 22 arrests in nine months in this neighborhood. Secondly --
Potter Stewart: That's where he's been spending all his time, isn't it?
Speaker: Apparently so, Your Honor.[Laughter]
Potter Stewart: I probably see where he's going to make.
Speaker: I -- I see your point. He was -- he was stationed there. And my point is that during the time he was there and spending his time there, he made 22 arrests --
Potter Stewart: (Voice Overlap) --
Speaker: -- for narcotics. Now, secondly, after spending his time there, he was familiar with the neighborhood and he saw a cab parked here on this parking lot by the apartment house and that was unusual. Thirdly, he saw the petitioner come out of the house, walk down to the street, look around, both -- all three ways on the corner, then go back walk around the lot, then get into the cab. He was sufficiently suspicious to him and his fellow officer that he felt he ought to follow the car. Their -- fourthly, their curiosity aroused, no intent to make any arrest, followed the car to see where it would go. Fifthly, the car then stopped at a red light behind other cars in the track. Sixthly, the officers alighted for the purpose of inquiry. There was no intent to arrest, as shown by the record here on page 14. Now, I understand from petitioner's reply brief, particularly on page 9, although I'm not certain of this. I understand that petitioner contends that the arrest was made at the time the officers walked up to the cab that that was the arrest moment, and therefore, on that basis, there -- it was illegal because there was no probable cause. Now, we say that there was no arrest at that time and we make no argument there was any probable cause for an arrest at that time. Seventhly, the officer, with flashlight in one hand and badge in his left hand, identified himself to both the petitioner and the driver of the vehicle. Now, there was no threat of any search. There was no threat of any kind. And I want to lay at rest in the idea that the officer had a third hand with a gun in his hand at this moment because it was admitted by the petitioner below on page 23 when the petitioner in argument, not this counsel here contended, he approached his gun in one hand, his badge in the other, as I understand it. And that is when defendant jumped out of the car and ran he said. The Court, “No, he had his flashlight in one hand and his badge in the other.” Mr. Forno, “That is right. Flashlight and the badge .That is right.” The Court, “That is right.” So --
Charles E. Whittaker: Mr. Wilkey, does not this knocking off dispute about detail of this nature get down to whether or not it was resolved by findings made by the trial judge as shown at the 101 page of the record?
Speaker: I think that that is correct, Mr. Justice Whittaker. The trial judge heard all of the evidence available, the original transcript, the testimony on the motion to suppress, and he found on all of the evidence that there was no unreasonable search and seizure. Secondly, he found that there was abandoned contraband here and in fact and in law, no search and seizure. And thirdly, that even if it was illegal, the silver platter doctrine applied and the evidence was receivable. Now, we submit that for this Court to reverse the conviction, this Court would have to say that the findings of the trial judge sustained by the Court of Appeals that the search was reasonable, would -- you'd have to upset that finding on the facts. That is correct.
Felix Frankfurter: The difficulty is that we've got a state court that said something else, doesn't it?
Speaker: Yes. But while certiorari was sought on the binding effect of the state court judgment, it was not granted on that. It was limited to the independent determination of the federal court, and I would point out that this petitioner does not concede that point. But in Elkins, the petitioner conceded that the federal court would have the right and power and should make some independent determination. Now, we have the officer identifying himself with the badge and the flashlight. Now, at this point, still --
Potter Stewart: Now, Mr. -- Mr. Wilkey, just -- before you get away with that, you showed us the colloquy in Court in which the -- the Court, the judge, of course, wasn't there that night and the lawyer who also, of course, wasn't there that night, agreed that the policeman didn't draw his gun that -- but that somebody was there that night, i.e. the taxicab driver testified very explicitly that the policeman had a drawn gun, didn't he?
Speaker: Yes, he did. And I suggest this. That the -- the taxicab driver's testimony must be evaluated in the light of the circumstances in the other testimony in the case. And the taxicab driver was not positive as to when the gun was drawn. And I submit that on the facts, the time when the gun was drawn was after the petitioner alighted from the cab and the officer had put away his flashlight and with one hand, as uncontradicted, he was seeking to restrain the petitioner. And then, at that time, it must have been when he drew the gun. And the petitioner --
Potter Stewart: It does -- the petitioner was later shot. And he --
Speaker: Yes, sir.
Potter Stewart: -- certainly wasn't shot with a flashlight
Speaker: Absolutely. And the --
Charles E. Whittaker: That is why I asked the question (Inaudible). Is the running policeman or basis upon which we here can determine facts that are in controversy in detail and that have been resolved. There's some reason why we are not bound by the findings made below.
Speaker: Not unless the finding on the facts of the District Court was so unreasonable and unwarranted by the evidence.
William J. Brennan, Jr.: Where are these findings, Mr. Wilkey?
Charles E. Whittaker: Page 100 and 101.
William J. Brennan, Jr.: (Voice Overlap) --
Speaker: 90 on -- page 99, I believe it began, the middle of the page, I -- second paragraph. I've read the transcript before Judge Otto Moore the next paragraph. There's been additional testimony before this Court. He says, “I must reach the conclusion. There was reasonable ground for the arrest and that there was nothing unreasonable about it.”
William J. Brennan, Jr.: Is that the finding of fact?
Speaker: That's the finding of the legal conclusion of the judge reached. And then he recites the -- the facts. There is no formal finding but I think the rule in the federal court is that the judge's opinion reciting the facts may be taken as findings of facts. And that's what this judge did here very carefully. From page 99 there to the middle of page down -- near the bottom of page 100, the Trial Judge, United States Judge, recites the facts as he understood them to be from the testimony he heard.
Earl Warren: Mr. Wilkey, did I understand Mr. Grossman to say that he endeavored to -- to find out what the true version of this arrest was before the District Court and the District Judge refused to let him put on testimony concerning officer Beckmann?
Speaker: I believe the counsel didn't make a statement like that but the record reflects that defense counsel had ample opportunity at each hearing to examine Officer Beckmann and while --
Earl Warren: District Court, in the District Court?
Speaker: In the District Court, yes, Mr. Chief Justice.
Earl Warren: Was he -- he was not denied at any time the right to cross-examine him on the subject?
Speaker: I think that there are two or three places in the record where the Trial Judge said that a further inquiry along certain lines would not be material.
Earl Warren: Where was that in the record? It might be material to what we're talking about now on question of findings.
Speaker: Mr. Chief Justice, I would -- I can' find that at this precise moment.
Earl Warren: But would you do that in the lunch hour?
Speaker: I would like to do that if I may.
Earl Warren: Yes, you may.
Speaker: Counsel, I think, do not point that out, but I will find that over the lunch hour. Now, at this point, at the identification and all of these things, Your Honor, that I -- Mr. Chief Justice, that I'm discussing are brought out in the record by the testimony of Officer Beckmann and the others so there's ample development here, I think, of the facts.
Earl Warren: Yes. I -- I don't know. I -- I just heard him say that and I -- I wondered -- how you responded to it.
Speaker: I will find it for you, Your Honor. Now, after the identification with the flashlight in one hand and the badge in the other, then is when the petitioner did what he need not have done, what he should not have done and what no innocent man could have done. He removed the narcotics in the container and dropped them on the floor. Now, this was in an intersection with four overhead streetlights fairly illuminated and the officer had a flashlight, and he saw it. And he was an experienced narcotics officer and he identified the contraband in the usual container and he realized what he had. Now, it is at this point. It is at this point that not only probable cause for an arrest exists but there is a necessity for an arrest and in seizure if any police officer is doing his duty. And it was at this point and only after the contraband had been dropped that the arrest and whatever seizure taking there was, was made. There is conflicting -- there maybe conflicting testimony as to the exact -- who opened what door. But it is clear that the petitioner sought to alight from the cab. We take it that the petitioner and the officer simultaneously sought to open the door and that petitioner alighted. He certainly made no effort to get out from the other side of the cab. He attempted to alight on that side. The officer seized the petitioner on one hand and told him he was under arrest. With the other hand, he attempted to reach for the narcotics. There was a struggle. I think at this moment, he drew -- the officer drew his gun. The second officer came around, picked up the narcotics, and the petitioner broke loose, ran, and was apprehended later after being shot. There was quite a struggle as the record reflects the details of the struggle. The time element as estimated by the cab driver was approximately one minute from the time the officer approached the cab until the petitioner broke and ran.
Earl Warren: We'll recess now.