Warren E. Burger: We’ll hear arguments in a few moments, we are awaiting Justice Douglas in Number 51, Hill against California but we’ll wait on Mr. Justice Douglas. Mr. Amato, you may proceed whenever you’re ready.
Joseph Amato: Thank you Your Honor. Mr. Chief Justice, may it please the Court. I’ll be rather brief in as much as this re-argument and some of the factual arguments have been made by prior counsel today. I would like to briefly, if I may, go over the facts of this particular case. We had a situation in this case, where there was a robbery, four individuals robbed a particular residence and then took some money, canvas and some other personal property. The day after the robbery which was June 4th, the robbery date being June 4th. On June 5th, two of the four accomplices to this particular robbery were captured in a narcotics situation. And they were captured in the car of the petitioner Archie Hill, along with other personal property that was recovered. The two particular individuals that were captured told the officers that Archie Hill was one of the four participants in this robbery. They implicated him to this particular crime. The police then checked out the association, the petitioner Archie Hill with the other two participants in the police records that they had available. They got the description of Archie Hill which was approximately 5’10”, 160 Lbs. They got the address and so forth. On the 6th of June, they proceeded to the residence of Archie Hill, the petitioner. At that time, the petitioner was not in his apartment. We’re talking about a four room apartment, one bedroom. There was a Mr. Miller in the apartment. The officers came in to the apartment and upon noticing Mr. Miller, made an immediate arrest, thereafter shoving Miller aside, searching the other rooms and finding nothing. At that time Mr. Miller indicated that he was Mr. Miller. He showed the officers identification showing that he was Mr. Miller. He further indicated that he was waiting for Mr. Hill. The officers in this case did not ask permission to search the premises. Thereafter, they spent approximately two hours, making an extensive search of the particular apartment. Now, the primary purpose of the search was to recover the personal property, additional personal property and the weapons which included two knives and two guns in the apartment house.
Potter Stewart: Didn’t also the search take placed before Archie Hill was arrested?
Joseph Amato: The search took place after Mr. Miller was arrested.
Potter Stewart: After Mr. Miller was arrested?
Joseph Amato: That’s correct Your Honor.
Potter Stewart: Before Mr. Hill was arrested?
Joseph Amato: Mr. Hill was not in the --
Potter Stewart: (Voice Overlap) -- they never got to -- the point of getting arrested?
Joseph Amato: That’s correct.
Warren E. Burger: I’m not sure you made this cast of characters very clear as to who the man in the room said he was and who he really was and who the police thought he was. I think it might help if you’d go over that.
Joseph Amato: Thank you Your Honor. Yes, Mr. Miller who in fact was Mr. Miller was arrested. He stated that he was Mr. Miller. The police said that the identification meant nothing to them that he flipped the description of Mr. Hill exactly. And therefore, they felt that because criminals tend to in many instances, to avoid arrest, they will falsify their identification. So in this situation, Mr. Miller was in fact Mr. Miller. Mr. Hill was not in the apartment at all. Now, the search was very extensive. They went all over. And what they recovered which is extremely damaging to the petitioner in this action was a personal diary in a drawer, in the dresser. And the reason why this particular evidence is extremely damaging even though they found other evidence associated with the crime, is because Bader who was one of the four accomplices lived with the petitioner. And he stated that he was involved in the particular crime. Now the --
Speaker: Could I interrupt you a second, going back to the Chief Justice’s question. Is there any question, is there any contention in this case that the police in arresting Miller turned out to be not Mr. Hill, were acting in bad faith when they arrested him in thinking he was Mr. Hill?
Joseph Amato: Well, Your Honor, I think the Court of Appeal that reversed this, indicated that police were acting in good faith when they did reverse the conviction. There is certainly evidence in there that could be argued. That they were not exercising good faith but the Court of Appeal in reversing stated that the officers apparently acted in good faith.
Warren E. Burger: What about the trial court?
Joseph Amato: The trial court --
Warren E. Burger: What's the record in the trial court on that score?
Joseph Amato: The trial court in this situation, I think it is important what the trial court said and what they were thinking at that time. They took two days after this trial. Excuse me, after this matter was submitted to make a determination. And in the trial record, the Court indicated that the officers were acting in good faith. However, the Court further indicated that he realized that he may be opening Pandora’s box that Rabinowitz and Harris was never intended to go this far. Now, certainly we contend strongly right from the outset that Rabinowitz and Harris are not applicable to this particular case. Certainly, counsel in the prior cases have already indicated this, insofar as the factual details of Rabinowitz and Harris. The location, the office in Rabinowitz, the public manner and so forth, the fact that a continuing crime was committed, and then when you compare it to a particular diary, something that the officers, even if they have the knowledge of that diary. Even if they had plenty of time, could never have gotten a search warrant for that diary. And yet --
Potter Stewart: Where was that diary found?
Joseph Amato: The diary was found in a dresser drawer in the bedroom.
Potter Stewart: Was it the entire diary or just a couple of pages?
Joseph Amato: Just a couple of pages, but they were the damning pages implicating the petitioner in this -- and really --
Potter Stewart: (Voice Overlap) As a matter of fact, did the officers take the couple of pages from -- a diary or just a couple of pages in the drawer?
Joseph Amato: That is not clear from the record Your Honor but it is just a couple of pages.
Potter Stewart: Incidentally, I gather you could object on Fifth Amendment grounds, could you?
Joseph Amato: Your Honor, I didn’t handle this matter in the trial level and the only reason I didn’t object was the same basis that I didn’t object to the fact that he was found guilty of kidnapping under in effect the Lindbergh law. And clearly the facts that I’ve stated here, do not indicate any type of kidnapping. Fortunately, the Superior Court in San Francisco County has reversed that to habeas corpus. And this leaves, I think possibly to another matter here where we are talking about the second degree robbery. Here is an individual serving the fifth year in the state prison on an effect, a one year minimum prison sentence. The Rabinowitz case and the Harris case, I think when you review those cases very carefully, it’s interesting to know that they infer throughout the decision itself that it should apply to those particular facts in Rabinowitz and Harris. But unfortunately, this Court did not see fit to expressly state that. And as a result, the states across this country have just murdered this decision, giving it unrealistic results as far as this particular petitioner’s contentions concerned are. Certainly, the factual situations when you put Rabinowitz and Harris together come up with a situation where really you could almost fit, nearly every factual situation to a situation where you do not need a search warrant and if you get the search warrant, you’re better off without it because you can go further like in this particular case, they never could have got any search warrant for that diary and yet because they have gone beyond the scope, they’re able to bring in this extremely damaging evidence.
Potter Stewart: Why couldn’t they get the diary into a search warrant?
Joseph Amato: Well, in this particular case they -- in the first place, they knew absolutely nothing about the particular diary.
Potter Stewart: Well I gather that -- I mean is there anything apart from that?
Joseph Amato: Well, yes Your Honor then there’d be a strong Fifth Amendment objection compelling the particular petitioner to get evidence of this sort which is self incriminating, if in fact they knew this particular evidence.
Potter Stewart: Well, what about Warden and Hayden?
Joseph Amato: Well, I think this is different than Warden and Hayden and several --
Potter Stewart: Well, this question was reserved in Warden and Hayden.
Joseph Amato: I’m sorry Your Honor.
Potter Stewart: This question was reserved, wasn’t it, Warden --
Joseph Amato: That’s right Your Honor it was. Now, insofar as retroactivity and I think all the other points are spelled out in the brief and since this is re-argument, I will at least reserve until I hear the Attorney General, as far as the retroactivity is concerned, I don’t think this Court has to go that far. I don’t think and of course, the arguments I would espouse would be the same as adequate expressed in the Williams case that here is a case that is on direct appeal. That one of the differences and big differences that I think this Court should consider when a case is on direct appeal and one that is being attacked collaterally from the stand point of retroactivity is the fact that on direct appeal, certainly the Government and the Attorney General and all those prosecutors should be fully aware that there is always the possibility that the case will be reversed and they should keep their witnesses and keep their evidence and keep all the things necessary to prosecute the case again in advance pending the possibility of a reversal. This is --
Warren E. Burger: How long do you think they should be obliged to keep the case together?
Joseph Amato: Well Your Honor, I don’t believe there to be any time limit but a direct appeal expressly on the issues that are involved. Now, I believe the Government in the prior case just mentioned that if bringing up appeals on various other matters, well, not relevant to the particular issues that are involved here. And then they come in on that way, there could be exceptions to that extent.
Warren E. Burger: In California, if they went back for another trial, may they use the recorded testimony of the missing witness who testified at the prior trial?
Joseph Amato: Under certain exceptions Your Honor, provide he is unavailable.
Warren E. Burger: That’s what I mean.
Joseph Amato: Yes sir.
Warren E. Burger: I mean, unavailable, a missing witness.
Joseph Amato: Yes Your Honor.
Warren E. Burger: In other words, no different from the federal --?
Joseph Amato: That’s correct Your Honor. I think in conclusion here at this time, I would just like to indicate to the Court that this case right from the outset was attacked on the Rabinowitz and Harris theory that really Chimel was not a criteria so far as taking this case up and that during the whole procedure up, it was a very difficult question. And I think that the reason it was difficult was because of the expanded critical decisions of Rabinowitz and Harris as we have gone along in time. And the Trial Court, when they indicated, they are open at Pandora’s door was not as the Attorney General indicates in this case. Opening a situation where if every case, there is a person who is not in that particular apartment, then all of a sudden, you have opened the door in that area. What they are talking about really was Rabinowitz and Harris gave the Government wide latitudes in the search. Now, we are going to a situation where the person doesn’t even have to be there, then all of a sudden, you come to a situation where really there just isn’t going to be any exceptions to amount to a material reason why they cannot search once they have the arrest. And I would submit in the interest of justice, particularly in this case. And I’m arguing particularly in this case because of the situation where the equities should come out where here, an individual has served in his fifth year on a minimum one year has never been up for parole because he was convicted of a kidnapping charge that he clearly did not do at the time. And the Courts are --
Potter Stewart: You say that conviction has been set aside and --
Joseph Amato: Yes Your Honor.
Potter Stewart: In other proceedings?
Joseph Amato: Yes Your Honor.
Potter Stewart: -- on habeas --
Joseph Amato: This year, it was set aside. And I --
Warren E. Burger: Isn’t that the problem of the State Courts of California to deal with the length of this subject?
Joseph Amato: Yes Your Honor, I’m --
Warren E. Burger: Is that issue before us?
Joseph Amato: It really is not. I’m just indicating this as an equitable situation when you’re drawing a very close line in this case because the trial courts in California knew about Rabinowitz, knew about Harris. The trial court made that statement in the record at the time. The Court of Appeal reversed 3:0 against and it’s just not that clear cut of a case. And I think some times in those type of cases the information like that might be helpful. Thank you very much.
Warren E. Burger: Thank you Mr. Amato. Mr. George, you may proceed whenever you’re ready.
Ronald M. George: This is a re-argument in a direct appeal from a state conviction. The sole issues in this case involve the search and seizure which occurred in the petitioner’s apartment in 1966. And beside from the issue of the retroactivity of the Chimel decision there are two or three issues involving the legality of the search under pre-Chimel law. Before reaching these issues however I’d like to quickly dispose off the new element that petitioner has injected into the case, namely this collateral proceeding in the California Courts whereby I believe within a month previously, the kidnapping count was set aside but that was on a state law ground and that is not even a final judgment that is being appealed to the Court of Appeal --
Warren E. Burger: You said a month previously --
Ronald M. George: must lead to this state, sometime within the last month, I believe it was, and that’s not even final yet and frankly I don’t see any bearing on it. The kidnapping count is gone but the robbery counts which carry a maximum of life imprisonment remain. In fact, although petitioner’s minimum is one year since that time not applicable to him, the statute provides for a 15 year minimum whereas here, there is a bodily injury to the victim. So that’s really something collateral.
Warren E. Burger: Well, let’s not spend anymore time on that issue.
Ronald M. George: So basically, getting to the search and seizure issue, I would like to again outline the facts, although counsel has because they are a bit confusing and I don’t think a complete statement has been given. On Saturday, June 4th, 1966, a robbery is committed, involving a brutal assault and unnecessary assault by gang of fur armed men. One of whom is petitioner and this is part of a series of robberies in the San Fernando Valley area of Los Angeles. Now, two days later, the police acquired probable cause to arrest petitioner. And petitioner at page 10 of his opening brief really concedes that there is probable cause to arrest him. So there’s no need to dwell in detail on that. What the police do is they proceed to petitioner’s apartment. They do not have a search warrant or an arrest warrant. They go in order to seize the weapons and the stolen property that’s involved with the robbery in the present case. And this is even arguably done with the consent of the one of the other robbery gang members who is in custody. But that is not central to the case. The police --
Warren E. Burger: To whom are you referring when you say in custody?
Ronald M. George: That is Mr. Bader. He is one of the four men, Baum and Bader were arrested.
Warren E. Burger: And he has told them about all this.
Ronald M. George: He has told them about this and they have independent information in their files connecting petitioner with these two men and with the series of robberies in that area. So the police --
Potter Stewart: Bader was the petitioner’s roommate, wasn’t it?
Ronald M. George: Roommate, that’s correct.
Potter Stewart: And is it -- it’s not your submission, is it or is it that Bader gave consent to this search?
Ronald M. George: Well I stated that arguably he did because he said “You can go to the apartment.” And that’s where the loot is and the weapons are.
Potter Stewart: That wasn’t the basis on which this was upheld by the Supreme Court attorney, was it?
Ronald M. George: No, it isn’t. No, although I noted briefly in our respondents brief that we don’t think that’s dispositive, the fact that that was not a ground upheld by the appellate Court. I just injected that that we seek to uphold the validity of the search on other grounds. Now, what the police do is they knocked and they identified themselves and they’re confronted by a man who opens the door and who looks exactly like petitioner Hill. And they have descriptions of petitioner Hill from the victims of which there were three. Although not all of them gave full description. But they have general descriptions and they have of course a description from petitioner’s roommate and they have their own information from their files involving previous arrest of petitioner. So they go there and there is a man who the record Bader indicates is only 10 Lbs off in weight and 2 inches in height. And these are discrepancies which would not necessarily be apparent to the officers and could be accounted for by any -- let’s say ambiguity in the victim’s description.
Warren E. Burger: Two Courts, the trial court has found as a matter of fact there was no bad faith and the Court of Appeals says affirmative, don’t they?
Ronald M. George: That is correct. So I --
Potter Stewart: The Court of Appeals reversed the conviction and then it was state took it to the Supreme Court where it was affirmed.
Ronald M. George: That is correct but the Court of Appeals did affirm the validity of the arrest as such.
Potter Stewart: In good faith, yes, good faith, yeah.
Ronald M. George: Yes. And of the arrest as such, they had a rather curious approach to the legality of the search which I’ll mention in passing. Now, what happens is before the officers even enter the apartment, they see a gun with a loaded clip in plain view from the threshold to the apartment sitting on the coffee table. They asked this man, what do you know about guns being on the premises? He says “I don’t know about guns being on the premises.” Well what about this one? You know, this already certainly alerts them as to evasive conduct by the person they suspect being the member of the robbery gang. So, he is also unable to give any satisfactory explanation for this presence. He is asked how did he get in here, “Well, I don’t know, I just got in here.” Where is petitioner Hill? “Oh, I don’t know where he is, you know.” So, then he says “I’m Miller and I’ve got identification to prove it.” But are the officers supposed to believe that when he tells them he doesn’t know anything without a gun in plain sight? So they are entitled -- as Justice Black stated in a previous argument today to assume that the person who opens the door especially when he matches the tenant’s description is the person in control. Now, this is where the divergence begins in the treatment of the case between the Court of Appeal and the State Supreme Court. The Court of Appeal adopted the approach suggested by petitioner that somehow what is important in ascertaining the legality of a search is not the dominion and control of the person over the premises, in a physical sense but at somehow his proprietary control that matters. Well, this is a concept that I believe this Court has rejected time and time again in the Jones case, Silverman case and I think finally buried in the Katz case. That the right to search incident to arrest, whatever its scope does not depend upon proprietary matters but rather upon the physical dominion and control because after all, it’s for the officer’s protection. And I think that Katz indicates that clearly, we’re concerned with the ability of the person to grab a weapon, all of these cases indicate this is the consideration. Now, --
Potter Stewart: Is it your theory, do you submit at all that it was -- you suggest Igave mean that Miller gave consent to this search?
Ronald M. George: No, not that Miller did. We have never made that contention.
Potter Stewart: You suggested that Bader might have?
Ronald M. George: Yes, that is the case, not that Miller, no. Miller did not. Now, hearing the arguments in the White case involving electronic surveillance and it seemed to me that the Katz decision has its one of its facets of the protection of the right to privacy, a concern really with assuming a risk of invasion of privacy and I think that’s really the key to this aspect of this case. The risk that the public will have access to the person’s words or his property. If you leave that telephone booth door open, it’s a different matter. If you leave your front door open or if you invite people into your premises that’s a different matter and that’s exactly what we think is the case here. There is a certain assumption of the risk by having visitors in your apartment. If you invite the visitor in, let’s say Hill had been there and they had come to arrest Miller. It was Hill’s place. I don’t think that the fact that Miller had no proprietary control over the premises, it would mean that the officers would have to say “we’re not going to search here because we’re invading Hill’s privacy.” I think that Miller could’ve grabbed a weapon of a drawer next to him even under the Chimel scope and injured the officer. So --
Thurgood Marshall: Mr. George, is there anything in the record as to how he did happen to be there?
Ronald M. George: There was --
Thurgood Marshall: I don't think that has much to do with thise case, but I would assume.
Ronald M. George: I’m curious about it myself and I have no idea from the record or from any other source. All I know is that he was asked for an explanation. He was unable to give one apparently. Now, I think that the Stoner opinion itself recognizes that apparent authority can provide the basis for searching even when there is a mistake. Now, I think what’s important here is that if you assume that Hill was there, the search that took place was totally proper. It was a type of search that would have been permissible under pre-Chimel law and the fact that this mistake occurred in good faith should make no difference and the treatment of it. Otherwise, certainly any felon could frustrate any search by claiming to be somebody other than the petitioner and unless the officer had personally seen them, that would just automatically preclude further search. And I think that Frazier versus Cupp also speaks in terms of assumption of the risk as far as the scope of permissible search. Now, one thing I would like to get in to, after concluding now that the scope of the search was unexceptional. The items being found in the bedroom is this question of the diary. I think, other than that, there can’t be any particular novelty to this case under pre-Chimel law. Now, first of all, we’d like to state strenuously that we believe that issue is improperly raised before this Court. It’s been --
Potter Stewart: The Supreme Court has no objection.
Ronald M. George: Not on this ground. No, in fact, perhaps the making of an objection on other grounds is affirmatively indicative of the waiver of an objection on this ground.
Potter Stewart: The objection I think was made was on Fourth Amendment ground?
Ronald M. George: On Fourth Amendment grounds to all of the evidence in general.
Potter Stewart: What would you do with that statement in void, the way you’re dealing with something like diary and the -- incriminated statement, the Fourth and Fifth Amendment is almost --
Ronald M. George: Well that language does appear. I think that --
Potter Stewart: I mean for the purposes of the sufficiency of the objection --
Ronald M. George: Of the objection.
Potter Stewart: Fifth Amendment, the Fourth Amendment context.
Ronald M. George: Well, I don’t think that that can really be dispositive of the issue or even that significant. Because after all, if we look at the purpose of an objection, it’s to appraise opposing counsel and the trial court of the basis for the objection --
Potter Stewart: Yes, but doesn’t the objection on Fourth Amendment grounds as to the diary, necessarily implicate the Fifth Amendment consideration on the issue of reasonableness?
Ronald M. George: I would say particularly not in view of the novel nature of this allegation because I know of no cases under California law or under federal law applicable to the states where it has been held that because this is a document, that alone bars its admission and evidence. So --
Potter Stewart: Incidentally are those pages anywhere in the record?
Ronald M. George: The objections.
Potter Stewart: All the diary pages?
Ronald M. George: Yes. The diary can be found at --
Potter Stewart: The diary said, is on page 77 of the appendix of the Footnote to the opinion of the Supreme Court of California by dispute.
Ronald M. George: And on page 41 itself. It is as the Supreme Court of California concluded a damning account of petitioner’s involvement really. It’s a rather unusual thing, it relates the fact of the robbery and some of this is in criminal jargon but in effect some of the members of the gang including petitioner went to TJ, that’s Tijuana and scored 7k’s which means purchasing seven kilos of marijuana. And that when they came back, they went to bed and then couple of them went out to get something to eat and then “this turned out to be mistake because they got busted.”
Potter Stewart: Well this is just about the detailed confession for the commission of the crime, isn’t it?
Ronald M. George: That’s correct. Made under absolutely no compulsion whatsoever, in view of the fact that the criminals do not customarily confess their crimes with the introductory phrase “dear diary, yesterday I did so and so.” This is something that is totally volunteered and that brings me really to the merits of this claim of a Fifth Amendment basis, let me just state briefly though this was not raised at the preliminary hearing, not at the trial court, not at the Court of Appeal, not the Supreme Court of California, not even in the petition for writ of certiorari. So under the Cardinal versus Louisiana decision and this Rule 40 of this Court’s rules, I think that precludes it but on the merits, I think that Guled itself who’s mere evidence rule was at least to a very substantial degree rejected in Warden v. Hayden precludes the claim made here. And I think it’s --
Potter Stewart: Well I know but wasn’t this -- this very question was reserved in Warden and Hayden?
Ronald M. George: To a certain extent it was.
Potter Stewart: To a certain extent it was.
Ronald M. George: But this I think is dispositive, the following sentence if I may note from Guled itself. There is no special sanctity in papers as distinguished forms of property to render them in unit from search and seizure if only they fall within the scope of the principles of the cases in which other property maybe seized.
Byron R. White: Yes, but at 302 and 303 of Warden and Hayden, we were dealing there with clothing.
Ronald M. George: Clothing.
Byron R. White: And we sent the the items of clothing involved in this case and that testimonial are communicative in nature and their introduction therefore did not compel the respondent,become a witness against themselves and violation of the Fifth Amendment. This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object to release in search and seizure. And that reserve this question?
Ronald M. George: I think that that language in conjunction with whatever this Court would want to do in the future certainly leaves the Court open to hold the documents are in a special class. My only statement is that Guled in effect said, there is a mere evidence rule and it’s not because of documents. Documents and clothing, everything is the same way. So once this Court in Warden dealt narrowly with the issue before it, namely non documentary evidence, I think that by the weight of that language, despite the reservation of the questions--
Byron R. White: Well I suppose documents and documents but what we have here really is as you can see, the detailed confession of this very crime. That’s what he wrote down on his diary, a very peculiar thing but that’s what it was.
Ronald M. George: That is true and if it is testimonial however, it is not under any compulsion.
Byron R. White: Well I can imagine a jury wouldn’t have filed that very effective evidence upon which to convict with, that confession.
Ronald M. George: Yes, but I hardly view that as the test. I think the test is of course whether this was given under any compulsion and --
Speaker: Well he certainly didn’t make and expecting included in his door expecting some police officer to find it, do you?
Ronald M. George: Well I don’t think that the compulsion goes to the manner in which the document was acquired by the police. I think the compulsion goes to the making of the statement and of course when the statement was made, it bears all the indicia of reliability. Here’s a man in his own apartment writing down his own thoughts, events of the day. So I think that there’s no compulsion whatsoever. It’s not as if the officer had said, “You’re under arrest. Now write down what you’ve done the last 24 hours. Now, some question was raised at the previous argument about why the officers looked to this diary. Well, I stated that hypothetically, the police might have been concerned with finding a weapon or some contraband there and I think that the events of the last day or two, give some way to my hypothetical. It was interesting to read in the Washington Post yesterday about a man who attempted to escape from death row in Chicago, and had in a hallowed out book of the collected works of Edgar Allen poke a pistol. And he succeeded I believe in wounding some of the guards and there’s --
Byron R. White: To the extent you claim this search was valid based on consent of the absent owner co-tenant really doesn’t make much difference where they were looking, is it?
Ronald M. George: No. To that extent it would not make any difference.
Byron R. White: And the California Supreme Court referred to the consent issue and relied on itself, didn’t they?
Ronald M. George: No. In all fairness, I must say they did not uphold this on the consent issue, they --
Byron R. White: What did they say?
Ronald M. George: There was a footnote in there opinion and that can be found in the appendix on page 76, footnote 2 that the consent issue would not be decided by that Court because the facts surrounding it whether it was not a mere submission to authority, not bound up with unlawful conduct were never developed. So, in other words, the Supreme Court of California chose to uphold the search on grounds other than consent.
Potter Stewart: The Court upheld it as a search incident to a lawful arrest.
Ronald M. George: Yes.
Potter Stewart: All be it a mistaken identity.
Ronald M. George: Yes.
Potter Stewart: Did it not?
Ronald M. George: That is correct.
Potter Stewart: And decided the case before this Court’s decision in --
Ronald M. George: Chimel.
Potter Stewart: Chimel, however it’s pronounced. And the question is whether this search was consistent with Fourth Amendment as construed in the Chimel and if not, whether or not Chimel should be given retroactivity, retroactive application.
Ronald M. George: Yes.
Potter Stewart: Is that about it?
Ronald M. George: Yes, that is it and this issue --
Potter Stewart: Then there are other complications in this case stemming from the mistaken identity and from the fact that a diary was among -- that they were to recall and is used against the person and perhaps and the possibility of Bader’s consent.
Ronald M. George: Yes. On the diary, I would like to add a couple more comments. First of all, Schmerber itself notes the shift in the Fourth Amendment view from property to persons and their right of privacy.
Byron R. White: Was the Fifth Amendment issue presented to the California Supreme Court?
Ronald M. George: No, not anywhere, not anywhere from the preliminary hearing.
Byron R. White: So you don't have any state decision on this at all?
Ronald M. George: No, none whatsoever. Not even in the petition for writ of certiorari. For the very first time of the opening brief, I would like to note one thing perhaps a little bit collaterally but the enormous effect of any ruling by this Court holding that papers are somehow sacrosanct was brought home to me recently working on the preparation of this Sirhan Sirhan case involving the diary of a political assassin. I think that if there somehow is going to be a special rule for papers that the Court has to be fully aware of the ramifications of this giving special treatment to that. Now, I’d like to cover one aspect of the search before getting to the retroactivity question. Namely the lawfulness of the search under Chimel because we do not in any way feel that the retroactivity issue is dispositive of this case and I think it’s important to note that Chimel and the cases upon which it relies have held that the requirement for the search warrant should not routinely be dispensed with. But that word is impracticable to obtain a search warrant that one need not to be obtained and this is precisely a case that comes within the exigent circumstances exception to Chimel. In Chimel of course, the officers had weeks to obtain a search warrant. Here, let’s look at the chronology leading up to the search. The offense was committed late on a Saturday night only after 5:30 pm on the following Monday, two days later that the officers require their probable cause to arrest petitioner. This was after Court hours. They would have had to wait well over 12 hours to obtain a search warrant and perhaps more. It occurred to me that the first Tuesday in California at least is a Court holiday in the month of June in election year. So, this really might be a 36 hour wait, instead of a 12 hour wait. Now, was there any reason why they shouldn’t wait this day or two? Well, the officers knew that there was a fourth member of the robbery gang at large. This gang was armed and dangerous. They had committed several other robberies in the area. The officers knew that the weapons and the stolen property were at petitioner’s apartment. Thus time was of the essence. The officers were confronted with what was very close to a hot pursuit situation. And there were these reasons for not delaying the search until the search warrant could be obtained. Petitioner and the fourth member of the gang, (Inaudible) were at large and they could still be committing other assaults and robberies. Secondly, the arrest of two members of the gang, just two-and-a-half hours before the search here, might alert petitioner to flee from his apartment and perhaps from the jurisdiction. And thirdly, if petitioner were arrested that evening and then search of the apartment delayed another day or two, that fourth man back -- might have come back being alerted by petitioner’s arrest or the arrest of the two other man Bader and Baum and realized that the officers would have seen incriminating evidence when they arrested petitioner and then might have removed.
Thurgood Marshall: When was the petitioner was arrested?
Ronald M. George: Petitioner? He was arrested about Thursday or Friday of that week but that is not on the record.
Thurgood Marshall: Well, I mean, is the only submergence for the hot pursuit, you know you didn’t get it until Thursday.
Ronald M. George: But they didn’t know that.
Thurgood Marshall: Can I ask if you got warrant then?
Ronald M. George: No. There was -- I don’t know if there was a warrant or not.
Thurgood Marshall: Don’t you think it’s of interest to some people as to whether you have an arrest warrant.
Ronald M. George: It’s a great interest to me to but it’s no where in the record, not even in the local Courts record. Now, I think any --
Warren E. Burger: May I interrupt you a moment? How much will you want for rebuttal?
Joseph Amato: One minute.
Warren E. Burger: Alright.
Ronald M. George: I think it’s significant that the officers knew that both guns in the robbery and all of the remaining stolen property were on these premises and that these were armed and dangerous men and they had to act quickly. Now, I won’t go into it in detail but the problem of exigent circumstances is graphically demonstrated in the amicus curiae brief filed by the Americans for effective law enforcement. They demonstrate the practical necessities for having a meaningful exigent circumstances exception to the Chimel rule. The brief that that organization has filed, details a couple of presently pending cases where the murder weapon itself was disposed off, during the time that the officers sought to comply with Chimel and went out to try and get the search warrant. Now, one related problem of course is what can be done to secure the premises and that’s one of the most serious problems and in California, our view is that the premises cannot be secured to the extent that people who are not involved in criminal conduct are restrained, their movements are followed around the house. Perhaps a matron has to come because the wife of the petitioner is there, she wants to use the facilities. She could dispose off evidence, you have to have an armada men and equipment there to follow everybody around the house. So I think that there is a serious problem about that. And that is what has been most difficult to leave with, under the Chimel decision. Now as far as retroactivity is concerned, we detailed our views in the brief and I think it’s important of course to apply a fully prospective test to the Chimel decision. The purpose of the decision of course is to deter unlawful police conduct. That’s not going to be deterred by punishing police officers for what they did relying on the existing law as decided by this Court several years ago. And up to two or three years ago, specifically at the time this search was conducted. There certainly has been reliance and the effect on the administration of justice of a retroactive application of this Chimel decision would be I submit greater than the effect of any decision of this Court on the administration of justice. Just thousands of prisoners would be sent back for new trials and only questionably could be retried. And I’d like to launch with the Court an original and ten copies of a memorandum which I have provided petitioner here, a manhour cost study regarding the Chimel decision. And that report is very significant in indicating that annually, the Chimel decision will cost the Los Angeles Police Department alone an additional 86,000 manhours. And the monetary cost is close to half-a-million dollars. And that is just for police officers, not the clerical help and the equipment that this is --
Thurgood Marshall: Is there anything there by what the cost would be to get search warrants in Los Angeles County?
Ronald M. George: This is what I’m referring to, Justice Marshall.
Thurgood Marshall: I thought you are talking about how many people you have to have in the building and all--
Ronald M. George: To get search warrants. It’s a very involved process.
Thurgood Marshall: To prepare search warrants.
Ronald M. George: That is --
Thurgood Marshall: So it’s limited.
Ronald M. George: To obtain search warrants, that’s all that I’m talking about here to draw of affidavits. I see my time is up. Could I prevail upon the Court for an additional minute? And this is just the cost to police officers. Not clerical, personnel. Now, this I believe averages out to about 30 extra police officers for the City of Los Angeles a year because of this. And consequently, one can imagine the retroactive application of this. And what I would like to note in conclusion as far as the impact of this decision is that, this strikes at the most sensitive nature of police work. The type of property crime, burglaries particularly where the rate of recovery is lowest it might be of interest to Your Honors to note that less than 10% of stolen property is recovered. Now, when the time that takes to obtain a search warrant and each case which is several hours is multiplied by the hundreds of situations, every day that occurred necessitating one under the Chimel decision, one can see the impact of this decision. One can easily point to one case or at the other case and say a warrant could have been obtained here. But if one looks at the overall impact, it’s quite apparent with two million burglaries being committed annually in this country, 265,000 of them in California. That there is indeed a real problem of just not getting slowed under by police work. So for these reasons, we would submit very strongly that the date of prospectivity should be adopted that all searches conducted previous to the date of Chimel, not be governed by the rule of that decision and we urge that the search and seizure in this case is lawful in all respects.
Warren E. Burger: Thank you. The document you referred to, will be considered as lodged with the Court, the Court will past on it in due time. Mr. Amato.
Joseph Amato: I’d like to just hit on four points Your Honor very briefly. The first one insofar as the Fifth Amendment was concerned, of course the problem there, it is an involvement with the Fourth Amendment in many respects. The reason it wasn’t specifically brought out on appeal is because it wasn’t objected to at the trial. I have no where indicated anytime during the Court of Appeals, Supreme Court or petition, that this wasn’t a consideration. It was only not mentioned because the trial attorney at that time didn’t object the most particular grounds.
Byron R. White: Could it have been raised? Is there rule in California that says you may not bring before the Court, something that wasn’t raised in the court below?
Joseph Amato: Well, that’s correct Your Honor. There is a Court rule that you cannot. I could have brought it in -- in effect of counsel. However, he -- I didn’t think was --
Byron R. White: Did you brief it, even to the extent you did here in the California Supreme Court?
Joseph Amato: Yes Your Honor. Oh, as far as the briefing, no Your Honor, it did not.
Byron R. White: You did not brief it? Your brief Buoy here.
Joseph Amato: That’s correct Your Honor.
Byron R. White: You did not in the California --
Joseph Amato: That’s correct, I did not. The second basis now is Bader’s consent. Now, insofar as consent, the petitioner contends strongly that there was no consent given. I think, the words in the transcript are and I quote “that he could go to petitioner’s apartment.” And I think that’s a far cry from giving consent to search into drawers in the bedroom. The third point that I’d like to add is --
Warren E. Burger: A bit on that question. What do you suppose that an officer would think he was being authorized to do if Mr. Bader said, “You may go to my apartment.” Just look at the apartment?
Joseph Amato: -- go see Mr. Hill and inquire Mr. Hill what the circumstances were. And if he doesn’t say you can search my drawers, or search my places, I would indicate and go to the apartment and meet Mr. Hill at that time.
Warren E. Burger: Suppose, instead of Mr. Hill or Mr. Miller or anybody else being around, there was a cleaning lady there that day and they said “Mr. Bader has told us we could come to the apartment.” And so she let them in.
Joseph Amato: I would still say Your Honor the same thing applies. I think, on two counts. One is, he wasn’t given expressed permission to search. And secondly, there is another serious questions to whether another person can give up the constitutional privacy, another part. Now, insofar as the amicus curiae brief on behalf of the Attorney General of Colorado and the police chiefs across the country. I too believe that this is a good case. That guidelines could be set as to what the police can and cannot do. But it still doesn’t take even those examples really go back to this particular case. The examples there are pretty extreme and yet that the Attorney General points out in Colorado. And yet in all those cases that he points out, those extreme examples where certainly there is a necessity for guidelines. The Attorney General was able to get convictions in all of those matters expressed even though they had to go and get the search warrant. In this case, I think it isn’t that close of an issue. Now insofar as retroactivity and counsel has indicated that 30 officers in Los Angeles will be required if it is made retroactive, the Chimel decision.
Potter Stewart: I’d understood him to say that 30 officers, additional officers in Los Angeles will be required just to carry out the Chimel decision, I don’t -- I think that argument --
Joseph Amato: That’s correct Your Honor, that’s what I was alluding to, improperly stated. The point that I would like to make is that we draw some happy median and drop it from maybe 30 officers to one officer on direct appeal. Those cases certainly outnumber, at least on a 30:1 basis.
Potter Stewart: A retroactivity wouldn’t require any officers now. You can’t un-ring a bell, you can’t -- if this was an unconstitutional search, there’s no way to constitutionalize it now. You can’t go back and get a search warrant and go on --
Joseph Amato: Then I ask, what is the purpose of the 30 officers? What difference does that basically make? In other words, the inference that I got and although I didn’t quite understand it, if you need 30 officers, on something that’s already passed, you don’t need any officers, what differences does it make? I thought the point he was trying to bring out was the fact that if you make it completely retroactive, you’re going to have to accumulate a lot of this evidence based on past cases. And now, I’m saying that if you have to get additional man power, that if you make it only on direct appeals, certainly a 30:1 ratio isn't unreasonable in light of all the years that are involved prior to Chimel versus the cases on direct appeal. I like to conclude with this last point that I wasn’t going to mention until counsel mentioned about the numbers of crime and so forth. I don’t stand up here for a crime. I hope no attorney or citizen does. Certainly, numbers can be misleading. And I think earlier in this case, I pointed that out where the gravity of this plan was elevated to kidnapping where in fact Harold Chessman died under the same penal code section. And this Court knows the facts of this case and certainly he was subjected to the death penalty also. And yet, there would have been totally unreasonable in this case. Just as we indicated, it’s been totally unreasonable to go into the bedroom and to get that diary and there’s no indication that this particular diary wasn’t a book. The only evidence and if it wasn’t a book, it should have been brought out by the prosecution. The only evidence is that there was two pages of a diary. No weapons could have been or supposedly no weapons could have been within those two pages. There is no evidence to indicate that it was anything different from the ordinary two sheets of paper. I would submit strongly Your Honor, in the interest really of justice in this particular case that this case -- that this Court reverse the Supreme Court and affirm the Court of Appeals.
Warren E. Burger: Thank you. The case is submitted.
Joseph Amato: Thank you Your Honor.
Warren E. Burger: Counsel, you were appointed to act in this case and acted at our request at our appointment. On behalf of the Court, I want to thank you for your assistance, not only to the petitioner, your client, but your assistance to the Court.
Joseph Amato: Thank you very much Your Honor.


William H. Rehnquist: We'll hear argument next in Number 88-1000, New York v. Bernard Harris. Mr. Coddington.
Peter D. Coddington: Mr. Chief Justice, and may it please the Court: Your Honor, I know you're all aware of the facts in this case so I'm not going to dwell on them. Rather, we believe the New York Court of Appeals erred on four fronts in this case. And, if I may, I'd like to concentrate on our first two arguments primarily while I'm at this podium. We believe that the New York Court of Appeals misunderstood Brown and its progeny by holding that a precinct confession, totally voluntary, given outside of a man's house, should be suppressed because the police arrested him in his home without a warrant. Now, I believe they misapplied Brown. Brown merely holds that Mirandas will not attenuate a Fourth Amendment violation in every case. The opinion says so, that Miranda warnings by themselves will not always attenuate. However, Brown also did not adopt any "but for" standard... but for a Fourth Amendment violation a confession so be suppressed. Brown, Taylor and Dunaway, the three cases on which the court of appeals relied, hold merely that when the confession is the product of prolonged involuntary detention without probable cause, then a confession should be suppressed. In those cases, the confession comes as a result of the Fourth Amendment violation. That is, holding a man without probable cause in violation of his Fourth Amendment rights. Where, however, in a case like this where there is ample probable cause, I submit that the vice that led to the Brown, Dunaway and Taylor holdings is absent. Once this man was taken outside of his house, the detention was completely lawful for Forth Amendment purposes. Therefore, the perfectly voluntary confession given later at a public place, the police precinct, I submit should have been admissible. Now--
William H. Rehnquist: Without regard to any other factors? What I mean is do you agree with what I think is the Solicitor General's position in his brief that the vice of... going inside the house in this case to arrest the person was that you might have seen things inside the house that could be used as evidence, not the mission to... to arrest him?
Peter D. Coddington: --Yes, sir.
William H. Rehnquist: And, therefore, so long as you're not using any evidence that you saw inside the house to prove your case, the arrest itself is okay?
Peter D. Coddington: That's... that's precisely... that's my second point, Chief Justice Rehnquist. We believe also that the--
Anthony M. Kennedy: Well, but just... but just on the first point, to follow-up to the Chief Justice's question. If you assume that the rule is you must exclude the statement that's given in the house, then do you make the same argument here? Or is it just a factual inquiry as to whether or not there's... the taint's been attenuated?
Peter D. Coddington: --Well, I believe we get into attenuation. With respect to the Brown holding, my position is that if there is probable cause, Miranda warnings by themselves should attenuate and there's no need to go through the three-fold factors. Okay? But I also agree that the Payton rule... I think there should be a bright-line rule here that Payton applies to evidence that is seized or perhaps observed in the home, and that evidence that is taken outside the home should not be suppressed as a violation of Payton. If that answers Your Honor's question.
William H. Rehnquist: So your first point is that probable cause plus Miranda warnings attenuate without more?
Peter D. Coddington: That's right. And my second--
William H. Rehnquist: And your second point is what?
Peter D. Coddington: --My second point is that Payton applies only to evidence seized in the house, and that evidence seized outside the house should not be suppressed under Payton.
John Paul Stevens: That's the Solicitor General's argument. Go back to your first point a minute. I'm not sure I understood your response to Justice Kennedy. Under your first point, you would say the first confession in this case is also admissible, wouldn't you?
Peter D. Coddington: Well, if there is a Payton violation, and as you--
John Paul Stevens: Well, we're assuming there is. I mean--
Peter D. Coddington: --Okay.
John Paul Stevens: --isn't that where we start? At least for purposes of decision we assume violation, don't we?
Peter D. Coddington: Well, as you know, my fourth point is that the entry was consensual, and if so, there would be no Payton violation.
John Paul Stevens: Well, if you're right on that--
Peter D. Coddington: If you... for the moment--
John Paul Stevens: --there's not... then we didn't really need to take the case.
Peter D. Coddington: --Okay. Assuming there is a Payton violation, I believe... and we've agreed in the state courts... that the confession in the apartment probably should be suppressed.
John Paul Stevens: Why? Under your first argument--
Peter D. Coddington: That's right.
John Paul Stevens: --there was probable cause and they got Miranda warnings. Didn't he?
Peter D. Coddington: Well, that's an extension that I was not... did not make in my brief. However--
John Paul Stevens: I know. But it seems to me it's a logical... a logical conclusion--
Peter D. Coddington: --I would... I would certainly adopt that--
Speaker: --for your argument.
Peter D. Coddington: --here. But--
John Paul Stevens: And maybe you're right, but I don't know why you'd differentiate between the first and the second confessions.
Peter D. Coddington: --Because that's the way it was litigated in the state courts. But, however, I'm perfectly willing to adopt that position here.
Antonin Scalia: Well, you might... you might consider that confession to be evidence seized in the house.
Peter D. Coddington: That... that was the point I was making. But--
Speaker: xxx.
Peter D. Coddington: --Well, I think Wong Sun answers that. Evidence, I believe, of confession.
Speaker: Wong Sun?
Peter D. Coddington: Well... that's what this all stems from. Actually, in Wong Sun, by the way, the amicus makes the point Wong Sun is completely different. Wong Sun was released on his own recognizance by a magistrate.
Speaker: Yeah.
Peter D. Coddington: Which is quite different than the facts of this case. The amicus argued as... against one of our arguments that perhaps the police should have released this man and then rearrested him. I submit that would have been inappropriate and would not follow under Wong Sun. Back to Justice Stevens' question. I do submit that probable cause plus Mirandas under normal circumstances should be enough to render a confession voluntary. And if we can get over the Payton violation, then I submit the confession in the apartment actually should have been admissible. However, as I say, that was suppressed by the state court, and we only admitted the precinct confession. The man was convicted with it. So, that's not really a question that's before the Court.
Thurgood Marshall: Did the police have the drawn guns when they went in there?
Peter D. Coddington: That's a close question, Your Honor. The testimony was that one officer had a gun in his pocket; one had a gun down by his leg. The defendant was looking through a peep-hole in the door. So I don't think that he ever saw the guns when he opened the door.
Thurgood Marshall: Do you think that was consensual? Do you think that to admit somebody with a gun is consensual?
Peter D. Coddington: If he sees the gun, perhaps not. But I don't think there is any evidence that this man saw the guns when he opened the door. And the police testified they holstered their guns as soon as they went in. When he opened the door... you know, they knocked on the door. They said police. I mean, this is not Gulag. This is not Johnson.
Thurgood Marshall: Well, then he was in. Then he could do whatever he wanted to do.
Peter D. Coddington: Well, I think he said, "I'm glad you're here. " "Come on in. " I mean, I think there--
Thurgood Marshall: What else do you do with a man with a gun? [Laughter]
Peter D. Coddington: --Well, I think you can shut the door. That's what I'd do.
Thurgood Marshall: You... you would shut a door with a man with a gun?
Peter D. Coddington: Shut the door and duck, yes.
Thurgood Marshall: Try it sometime. [Laughter]
Peter D. Coddington: No, I think you can do that, Your Honor.
Thurgood Marshall: You won't be around to talk about it. [Laughter]
Peter D. Coddington: Well, I don't know, Judge... Justice.
Thurgood Marshall: But, I mean, this rule in New York to me is not proper under the Constitution. That you don't get a warrant of arrest.
Peter D. Coddington: Well, let me touch on that, Your Honor.
Thurgood Marshall: There's nothing. There were five days--
Peter D. Coddington: That's right. Okay, let me--
Thurgood Marshall: --And there was... there was no reason at all except the rule.
Peter D. Coddington: --Well, under New York, law, as Your Honor knows... as Your Honor knows, the police cannot question a defendant without an attorney once they have an arrest warrant. But as I read these--
Thurgood Marshall: There's nothing wrong with that.
Peter D. Coddington: --Well, I have no quarrel with that either. But there's nothing in any of this Court's decisions that says that the Sixth Amendment requires the police to file charges so the man has an attorney just when they have probable cause.
Sandra Day O'Connor: Well, Mr. Coddington, is it the policy then in New York that arrests are made without warrants to avoid that problem?
Peter D. Coddington: No, Your Honor, it's not. It's not.
Sandra Day O'Connor: Well, that certainly is... is the argument made in part by the other side.
Peter D. Coddington: It certainly is and--
Sandra Day O'Connor: Do you think that's the custom or practice in any agencies in New York?
Peter D. Coddington: --It may have been the custom of this particular police officer. But, as I deal with at length in my reply brief, it certainly is not the policy of the New York City Police Department. I mean, I'm not going to say that some police officers don't delay arrests so they can obtain confessions. But I submit that that's perfectly proper. I mean, there's one thing to flagrantly disregard a constitutional right. It's another to tailor your conduct in conformance with the Constitution.
Sandra Day O'Connor: Yes, but to make an arrest without a warrant in a home certainly violates the Constitution, does it not?
Peter D. Coddington: If that was their intent when they entered--
Sandra Day O'Connor: I mean, you... you concede that the arrest without a warrant was unlawful inside the house?
Peter D. Coddington: --I agree that if it was non-consensual, it violated Payton. But I submit to Your Honor that... I mean, the record here shows that these police were not--
Sandra Day O'Connor: Well, do you think Payton was articulating a constitutional requirement?
Peter D. Coddington: --I think so. Yes.
Speaker: Uh-huh.
Peter D. Coddington: Yes, I agree.
Sandra Day O'Connor: So you would agree there was a constitutional violation?
Peter D. Coddington: Well, understand, in Payton the police broke in the door when the man wasn't there and searched the apartment. Here, in this case, at page 380 of the record, the detective, Detective Rivers, went to this man's apartment--
Sandra Day O'Connor: Do you think Payton was determined only because the door was broken in?
Peter D. Coddington: --Well, there was no warrant and it was a forceful entry.
Speaker: Uh-huh.
Peter D. Coddington: So far as I know, none of this Court's opinions deal with anything like the circumstances of this case. In Welsh v. Wisconsin they came late at night. The same is true of Riddick. In Payton and in Brown the police broke in the door. Here, there is a knock on the door and an apparently consensual entry.
William H. Rehnquist: Well, are you suggesting there's some sort of halfway house between consent to entry and a violation of Payton?
Peter D. Coddington: No, I'm not. I'm just suggesting that on this record it's a most unclear question.
William H. Rehnquist: But the New York Court of Appeals found there was no consent, didn't they?
Peter D. Coddington: That's correct, and that was a factual finding that was binding on them which I do not believe binds this Court. At least, not as to the legal conclusion.
Speaker: No, but we--
Peter D. Coddington: Which is why--
William H. Rehnquist: --didn't grant certiorari on any... on any question like that, did we?
Peter D. Coddington: --No. No. I think--
William H. Rehnquist: I think you might be well-advised to assume that we're very unlikely to relitigate that question here.
Peter D. Coddington: --Okay. So then we will assume a Payton violation. Okay. Assuming a Payton violation, I believe, again, that... okay, back to Justice Stevens' question. Assuming a Payton violation, I believe probably that the confession in the apartment should be suppressed. I submit that the confession at the precinct should--
Speaker: Well, the only issue we've got is the station house.
Peter D. Coddington: --That's just what I'm getting to.
Anthony M. Kennedy: So we don't need to argue anything else.
Peter D. Coddington: I was just trying to follow... follow-up on Justice Stevens' question. I believe the confession at the precinct should not be suppressed. One, that was taken outside of the house. I believe that Payton should extend no farther than the house. This is a nice bright-line rule that the Court can enact. I think it has an ease of application that will aid police, prosecutor, defense counsel and state courts in application. I believe... touching back to Justice Marshall's question... that the police behavior here was not designed to violate the Constitution. In Hoffa and in Levasco, which I believe Your Honor wrote, the Court has held that the police do not have to file charges at the moment they have probable cause. The Court has recognized that it is perfectly reasonable for police to go to a man's house, knock on the door, and attempt to question him before they make an arrest. This is perfectly reasonable behavior. And, as the Court knows, reasonableness is the test under which all Fourth Amendment decisions are rendered. I submit that the conduct here was perfectly reasonable. So, I submit that the confession at the precinct--
John Paul Stevens: Well, let me just stop you on this. Don't you have to assume that a police officer's version of the arrest, rather than the defendant's version, in order to reach that conclusion?
Peter D. Coddington: --Oh, yes, but--
John Paul Stevens: But were there findings that they told the truth and he was lying--
Peter D. Coddington: --Yes.
John Paul Stevens: --when he said they barged into the apartment with their guns drawn?
Peter D. Coddington: Yes, there was.
Speaker: Oh.
Peter D. Coddington: When the court rendered its verdict, it expressly discounted... discredited... the defendant's version. I can get the cite for that. It's... I believe it's... well... it is at... it would be page 27, I believe, of the joint appendix. No, excuse me, page 29 of the joint appendix. "I cannot accept the defendant's version with respect to the course of nature in this statement or that his statement was other than voluntary or true. "
John Paul Stevens: Well, that's not... that's not with regard to how... what the behavior was at the time they entered.
Peter D. Coddington: No, but I think--
Speaker: That's the course of--
Peter D. Coddington: --I think that's the court's ruling on the entire testimony of the defendant.
Speaker: --I see.
Peter D. Coddington: And I think the defendant's testimony at trial started with an involuntary entry, gunpoint questioning, so on and so forth, culminating in an involuntary confession at the precinct. I submit the court specifically rejected--
Thurgood Marshall: What did the court of appeals say about it?
Peter D. Coddington: --The court of appeals didn't precisely reach that issue. The court of appeals applied the Brown factors, which is the next point I'd like to get to.
Thurgood Marshall: The court of appeals did... said that Payton applied, didn't it?
Peter D. Coddington: Oh, yes. Yes. We... we agreed on that now.
Thurgood Marshall: And you agree that Payton applied?
Peter D. Coddington: I agree now. Yes, I do.
Thurgood Marshall: Well, I wonder why we're sitting her for.
Peter D. Coddington: I'm sorry, Judge, I didn't hear you.
Thurgood Marshall: I wonder what's up left. Once you agree on Payton, aren't you in trouble?
Peter D. Coddington: Well... no. Okay. Excuse me. I... I agree that the police violated Payton here. However, I do not agree that the precinct confession should be suppressed. I think that Payton should not apply to a precinct confession. I submit that because there was probable cause Brown does not apply the way the court of appeals applied it. I submit that because there was probable cause and Miranda warnings that should attenuate the precinct confession. And in any event, I believe that the court of appeals misapplied the Brown factors in finding this confession was--
Thurgood Marshall: xxx New York ever approved this rule of the police department that you did not need a warrant?
Peter D. Coddington: --Oh, yes. In People v. Lane, which is cited in my brief... I believe it's 64 N.Y. 2d.
Thurgood Marshall: I only saw one case. Is that the one?
Peter D. Coddington: Yeah, Lane. Now, see, in New York... under New York law one has to file--
Thurgood Marshall: This rule is a rule of the police department, not the New York courts.
Peter D. Coddington: --Well, okay. I don't believe it's--
Thurgood Marshall: Well, this opinion says that.
Peter D. Coddington: --Yeah, that's true. I think that was an unfortunate mistake, frankly. As you notice in my reply brief... I mean, the policy of the department is emphatically to the contrary.
Thurgood Marshall: Well, what does the policy of the New York Police Department have on us?
Peter D. Coddington: Absolutely not--
Thurgood Marshall: Are we bound by it?
Peter D. Coddington: --Oh, no, no, no, no. But I don't want to leave the Court with the impression that the policy is other than it is. I mean, I would not like a factual mistake to color this Court's judgment. But with respect to New York law, a search warrant can only be obtained once the police have filed an accusatory instrument. This commences the action. It triggers the New York right to counsel. In Lane the felony complaint had been signed but had not been filed, and the court of appeals approved an admissible confession there. The action hadn't commenced. So, that is the law of the State of New York. Now, back to the Brown standards. For the reasons I'm arguing, I don't believe that the police conduct here was purposeful or flagrant. In Brown, after all, they broke into the man's house and arrested him at gunpoint as he was coming home. Here, the Payton violation was of the most minimal nature. It was nothing like Payton, where they'd broken the door. This is a knock on the door, we're the police. He says, "Come on in. " "I'm glad you came for me. " Now, had the hearing court found a consensual entry, which what we'd argued below, there would have been no Payton violation at all. The Payton--
Speaker: xxx hopeless case?
Peter D. Coddington: --Oh, yes. Yes.
Anthony M. Kennedy: You know, there is no consensual entry even if you just walk up to the... knock on the door and show your badge.
Peter D. Coddington: They said they had a warrant, or misrepresented they had a warrant, if I'm not mistaken, and the court held that where there's a warrant there can't be consent. If I'm not mistaken, that's Bumper's. You know, here... I mean, had the court found its facts a little bit differently, there would have been no Payton violation. My point is the Payton violation occurred here, or was found here at the hearing, some months after the entry. As Justice Stevens said in the Garrison case... I mean, we have to judge these circumstances as they appear to the cops at the door. Knock on the door, come on it, I'm glad... glad you came for me. I mean, I submit that on an objective view to any reasonable police officer that would sound like an invitation to enter. That's certainly the way it appeared to these police officers.
John Paul Stevens: That's why they had their guns drawn.
Peter D. Coddington: Their guns were down where the defendant couldn't see them. I... I would admit that, you know, if they were pointing them at his head, it would be different. But the record is clear that he could not see the guns and the guns were holstered as soon as they went into... went into the defendant's apartment.
John Paul Stevens: I know, but even if they had them unholstered and concealed, they weren't entirely convinced that they would be welcome, were they?
Peter D. Coddington: Well, they were prepared. This... this was, after all, a homicide investigation and there were three knives within easy reach, as it appears once they got into the apartment. But the defendant was completely congenial. I mean, as soon as they saw each other, any coercive atmosphere disappeared. They holstered their guns. They immediately read him his Miranda rights.
John Paul Stevens: Again, that's... that's if you accept the police officer's testimony.
Peter D. Coddington: Well, that was the... yeah, the testimony--
John Paul Stevens: And as I read over the trial... what the trial court said, he really was concentrating on the second confession, not what went on at the time of the... the entry.
Peter D. Coddington: --Well, I submit, though, that in order to find attenuation--
John Paul Stevens: And also it's also clear that all the courts in the New York system agreed that the entry was not consensual. So, I think that means we have to accept at least some degree of credibility to the other side's version of the facts.
Peter D. Coddington: --Well, okay. But, I mean, in terms of the flagrancy of the police conduct here, I think it militates on my side towards that. I mean, this is clearly not, you know, a flagrant violation as has occurred in Brown. This is--
John Paul Stevens: Well, of course, it depends on what one means by the word flagrant. If there is a deliberate policy to violate the Constitution in order to avoid the effect of a New York rule that would make it improper to interrogate the person, one might say that's flagrant too--
Peter D. Coddington: --Well, there's--
Speaker: --if that's the case.
Peter D. Coddington: --There are two answers to that. One is California v. Greenwood, of course, in which the Court held that notions of state law should not control for Fourth Amendment purposes. And also... I mean, the flagrancy... at least as I understand the case, it has to be flagrant violation of the Federal Constitution. I mean, a state rule of law, I submit, probably is not a flagrant violation within the meaning of the Fourth Amendment.
Thurgood Marshall: But this is not state law we're talking about.
Peter D. Coddington: Well, the--
Thurgood Marshall: This is the police department of a city's law.
Peter D. Coddington: --To avoid--
Thurgood Marshall: They are... aren't they different?
Peter D. Coddington: --Well, yeah. To avoid a New York state constitutional requirement, not a Federal constitutional requirement. Patterson v. Illinois, that's--
Thurgood Marshall: --police procedure is wrong. Yeah.
Peter D. Coddington: --I am not trying to condone the police procedure, Your Honor. I am merely saying that it is not a flagrant disregard of the Federal Constitution. This Court has recognized--
Thurgood Marshall: xxx flagrant and violations of my Constitution.
Peter D. Coddington: --Well, the difference has to do with the police officers' intent.
Thurgood Marshall: Well, what would have made it flagrant? For them to have cursed him or something?
Peter D. Coddington: No. What would have been flagrant would have been what happened in Brown.
Thurgood Marshall: If they'd hit him in the head with a blackjack, would that have been it?
Peter D. Coddington: That sure would have been flagrant.
Thurgood Marshall: Would that... well, what... what below that is flagrant?
Peter D. Coddington: Below that would be the facts as in Brown, where they break into the man's apartment, wait for him to come home. As he walks up to the door, arrest him at gunpoint. That's flagrant. That's clearly flagrant.
Thurgood Marshall: I guess shooting him would be flagrant too, wouldn't it?
Peter D. Coddington: It sure would. But, I mean, here--
Thurgood Marshall: Well, are we obliged to find what is flagrant in this circumstance? Because the City of New York... I mean, the State of New York in its opinion has already said it was a violation. They didn't need to say flagrant, I didn't think. They said it was a violation.
Peter D. Coddington: --Well--
Thurgood Marshall: Now, why can't we say the same thing?
Peter D. Coddington: --Well... okay. I do believe if you are going to apply the Brown attenuation standards, you do have to come to grips with the question of whether or not it's flagrant. As I read the Court's opinions, the flagrancy of the police conduct is one of the most important considerations. So, I submit the Court is going to have to answer that question. I mean, there are violations. For example, take United States v. Leon where the taint is the good-faith reliance on what turns out to be an invalid award. There should be no suppression at all. I mean, now, there is a violation that's not flagrant. The same may be said of Crews and Ceccolini and in Michigan v. Tucker where the Fourth Amendment violation leads to the testimony of a live witness. Again we have a violation that's not flagrant. I submit the same thing should be said here. Here there is a Payton violation, but under the circumstances of the entry and the police behavior and the fact that they can go to a man's apartment and attempt to gain entry to question him, plainly the violation is not flagrant. Your Honors, if there are no further questions, if I may, I'd like to reserve the remainder of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Coddington. Mr. Parker, we'll hear now from you.
Barrington D. Parker, Jr.: Mr. Chief Justice, and may it please the Court: On January 16th, 1984 three New York City police officers, each with 18 years experience on the force, went to Bernard Harris' home both to question him and to arrest him in connection with a homicide five days earlier. Five days earlier, on the 11th, the police officers, specifically Detective Rivers who was in charge of the investigation, had probable cause to arrest Harris. In addition, they knew on that day, the 11th, where he lived. The officers were apparently not concerned that Harris was a threat to anybody else, nor were they concerned that he might flee because between the 11th and the 16th, insofar as the record shows, they made no effort at all to apprehend him. Now, the specific purpose in going to Mr. Harris' house was to question him. Both officers testified to that. McCarthy and his partner, Rivers. Both of these were 16-year detectives. The officers did not have a warrant, no effort had been made to obtain a warrant. Furthermore, the record shows... excuse me... the record does not suggest that the arresting officers in connection with their efforts to arrest Mr. Harris went anywhere other than to his house. Now, obviously the police officers in this case are presumed to have knowledge of and be bound by the district court's decision in Payton, a decision which, of course, in the first instance talked directly to New York City Police Department. In addition, there is a memorandum which is not part of the record but which is quoted in the state's reply brief. That memorandum apparently was circulated to all police department... all police force members and specifically to detectives at about the time Payton was decided. So, I think the record is clear that these officers knew what Payton required. So, it was after dark. There were no exigent circumstances at all. And although the arrest took place four years after this Court's decision, Detective Rivers, the 18-year veteran, testified that it was not the custom in his department to comply with what this Court said the Fourth Amendment required in Payton. He was asked by the court if it was the custom in his department to get warrants. Detective Rivers said no. And I suggest to this Court that there is nothing in the record which contradicts or qualifies Detective Rivers' admission about the existence and the application of the custom.
William H. Rehnquist: Was he... can you tell from the question and answer whether he was referring to search warrants or arrest warrants?
Barrington D. Parker, Jr.: The questioning... it was not specific, but in context they were talking about arrest warrants. I think the... there are several important things about--
William H. Rehnquist: The police here would have been no better off with an arrest warrant, would they?
Barrington D. Parker, Jr.: --Pardon me?
William H. Rehnquist: The police here would have been no better off with an arrest warrant than with probable cause, would they?
Barrington D. Parker, Jr.: They would have been... they would have been better off... they could have lawfully arrested him at home with an arrest warrant. A simple... simple probable cause would not have done that. I think one of the ironies of this case is that the petitioner could have been arrested anywhere except in his home. The police made no effort to arrest him anywhere except in his home. Now, Rivers' testimony and--
Sandra Day O'Connor: But do you think that makes the person arrested somehow more likely to confess than if he were arrested outside his home? Is there something about that fact that enhances the exploitation of that illegality?
Peter D. Coddington: Well, I... I don't think the... I think they are obviously both... potentially... potentially coercive events. I think the fact that he was... that an arrest in the home is not for Fourth Amendment purposes of any less significance than an arrest on the street. We're not making that argument. But to return to Detective Rivers--
Sandra Day O'Connor: Or any more significant?
Barrington D. Parker, Jr.: --I'm sorry?
Sandra Day O'Connor: Or any more significant?
Barrington D. Parker, Jr.: Or any more significant. To return to--
Anthony M. Kennedy: Well, but... but that is the point... that is the point of your case, isn't it? Because I... I take it you would concede... maybe you wouldn't... I take it you would concede if there is an arrest outside and the warrant is somehow defective, that the statement is nevertheless admissible.
Barrington D. Parker, Jr.: --I think this Court's decisions indicate that that's... that's... that rule... that result would obtain, Your Honor.
Anthony M. Kennedy: Well, then it is the fact that he was arrested in violation of Payton in his home that establishes the invalidity that you must rely on here, is it not?
Barrington D. Parker, Jr.: The... it's our position that the statement... the statement given later at the station house must be suppressed as a result of the illegal arrest in the home as a result of a Payton violation.
Anthony M. Kennedy: And why is it that a statement taken at home is deemed to be more coercive than a statement taken someplace else?
Barrington D. Parker, Jr.: Well, I'm not saying that's a per se rule. I think you have to look at all of the facts. It--
Anthony M. Kennedy: You're... you're not saying it's a per se rule--
Barrington D. Parker, Jr.: --I'm sorry, I--
Anthony M. Kennedy: --that a... that a statement taken at home in violation of Payton is... is inadmissible?
Barrington D. Parker, Jr.: --No, no. I'm not saying that a statement taken at the home is necessarily more coercive than a statement taken somewhere else. I am saying, of course, that a statement taken at the home or a statement taken as a result of a Payton violation becomes inadmissible.
Byron R. White: Well, suppose there hadn't been any statement taken at the... in the house at all but there was an entry without a warrant, without an arrest warrant. And you go to the station house, give him the Miranda warnings and then you get a statement. Would you be here then?
Barrington D. Parker, Jr.: Yes, I would, Your Honor.
Byron R. White: You would say it's just the fact that there was an illegal entry that's coercive?
Barrington D. Parker, Jr.: Well, I think in those circumstances the... the... the rule that applies is that a confession obtained through custodial... interrogation after an illegal arrest should be suppressed unless the state shows sufficient attenuation.
Sandra Day O'Connor: Uh-huh. That's the Brown--
Barrington D. Parker, Jr.: That's the Brown rule, Your Honor.
Sandra Day O'Connor: --v. Illinois rule?
Barrington D. Parker, Jr.: And it's--
Byron R. White: So we need... you needn't focus on the statement taken at the house at all, as to whether it might contribute to the coerciveness?
Barrington D. Parker, Jr.: --Well, I think that's not in this case. I believe this Court granted certiorari only with respect to the station house statement. But there obviously are circumstances where the... a statement given earlier might be on of the factors considered under Brown that made the second... second statement less attenuated. But I don't believe that's something that is presented for this Court's decision here.
Sandra Day O'Connor: The Solicitor General in a brief filed in this case suggests that we shouldn't... we should limit Brown v. Illinois and its rules on attenuation to circumstances of arrests without probable cause.
Barrington D. Parker, Jr.: Two things about that, Your Honor. First of all, I do not adopt and I do not believe that what this Court was concerned about in Brown and Dunaway and Taylor were arrests without probable cause. I believe that in those cases what the Court wrestled with was the notion of how best, how most efficiently to deter an illegal arrest. Arrests can be illegal for a variety of reasons. They can be illegal because there is no probable cause. They can be illegal because there happens to be no warrant. I believe that there is no good policy reason to focus on one type of arrest and exclude another type of arrest that because of the circumstances might be more flagrant. What you have in the usual circumstance of no... what it seems to me complicates the cases involving arrests without probable cause is this Court's recognition of the difficulties police officers have in making spontaneous or difficult on-the-spot judgments. But here we don't have that situation. This case, I suggest, is far more flagrant than Dunaway or Brown. It... it, I would suggest, creates a substantially more compelling justification for the absence... excuse me, for the application of an exclusionary rule than Brown, Taylor and Dunaway. It was a home arrest. They knew they had to get a warrant. The policy manual told them. Five days, no effort to get the warrant. They could have arrested him anywhere. They intended to arrest him without a warrant. The officers made no effort to look for him anywhere but in the home. And as the New York Court of Appeals found, this series of steps by the police was intended to avoid restrictions on interrogation... custodial investigation imposed by the New York State Constitution--
William H. Rehnquist: Well, why should that interest us, what the New York Constitution imposes on the New York state police officers?
Barrington D. Parker, Jr.: --Well, I... it... I think it... it adds... what it does, simply, Your Honor, is it... it... I think it makes more plausible the existence of the custom. It indicates why that custom probably arose, and why it is plausible to assume in New York... to assume, as the court of appeals did in New York, that the custom was followed.
William H. Rehnquist: But you're saying is that it rules out other possible explanations.
Barrington D. Parker, Jr.: It tends to rule out--
Speaker: Yeah.
Barrington D. Parker, Jr.: --other possible explanations.
William H. Rehnquist: If the... if the reasoning behind Payton is that the wrong there is the entry of the home without a warrant, why... why isn't that wrong satisfactorily compensated for or protected against by simply excluding whatever the police might have seen or seized when they came into the home?
Barrington D. Parker, Jr.: It does not do that, Your Honor, because in many instances what the police officers are likely to be looking for when they go to make a Payton... to make an arrest is not simply tangible or testimonial... excuse me... is not simply tangible evidence, but they go, as they did here, to try to get some sort of statement. And the Solicitor General's approach to the problem doesn't address that concern.
William H. Rehnquist: But... but they can get that by arresting him on the street, can't they?
Barrington D. Parker, Jr.: They could have arrested him on the street. No question about that.
Speaker: But--
Barrington D. Parker, Jr.: But they chose to... but it... excuse me. I'm sorry.
William H. Rehnquist: --If... if you're trying to figure... as I take it all of us are trying to figure out exactly what happened here and why it happened, it seems to me the only... the most logical explanation for why the police did this at home rather than on the street... if they were trying to pull something off... was to get inside the house and see something. That they could do inside the house, and they couldn't do it on the street. They could talk to the talk to the fellow on the street just as they could inside the house.
Barrington D. Parker, Jr.: Well, I... I cannot really fully reconstruct what the thinking of the police officers was here, but if you look at the kind of information they had when they went to his house and what may have been missing, I think it's... what it looks like they, as we've said, had probable cause but may not have had enough to convict this man. And what they needed was a statement. And maybe after... based on their experience they thought the best way, the easiest way to get the statement was to confront him at home. I... I don't know. I'm speculating about that. But the record certainly doesn't definitively answer that. But if you assume that in some instances... for example, in this instance... the police wanted to get a statement, then they would not be deterred from Payton violations by the Solicitor General's rule.
John Paul Stevens: May I ask a question of New York practice? As I understand it, if they had gotten a warrant, that would be an accusatory instrument which would have required the appointment of counsel and precluded questioning until the lawyer was appointed. But without going... without getting a warrant... say, they just picked up a man on the street on probable cause... would they... would that same prohibition against questioning apply?
Barrington D. Parker, Jr.: They could have arrested him on the street without a warrant. The accusatory instrument would not have had to have been filed on the--
Speaker: At what--
Barrington D. Parker, Jr.: --Excuse me.
John Paul Stevens: --At what point in the process would there have been... would it have been necessary as a matter of New York law to file something that would have terminated their ability to go ahead and question him?
Barrington D. Parker, Jr.: I believe he would have been arrested, he would have been arraigned, and at arraignment... or shortly after arraignment some kind of information, a felony complaint or a misdemeanor complaint--
Speaker: I see.
Barrington D. Parker, Jr.: --would have had to have been filed and at that point, at arraignment, the right to counsel would have attached.
John Paul Stevens: So that until they either get an arrest warrant or some kind of a formal complaint is filed leading to an arraignment they could go ahead and question him?
Barrington D. Parker, Jr.: That's correct, Your Honor. I believe that the... the really principal difference that separates the prosecutor's and our position is whether a Brown attenuation analysis really applies in these circumstances. It's our argument that it certainly does because if the primarily rule of the... primary thrust of the exclusionary rule is going to be deterrence, stopping a... not applying it to a... not applying to a situation here where you have an arrest that is... has been found to be purposefully flagrant is not going to... is... is not going to deter police or eliminate this custom. In view of the Court's position on consent, I will not address that. I believe I've covered most of the... covered the main points I have. I will... if there are no questions, I will surrender the balance of my time.
Antonin Scalia: Mr. Parker, maybe... maybe you can explain to me what I really don't understand. What... what is attenuated under Brown? I... I... if the object of excluding the confession was to exclude something that has been coerced, I could understand that you would look for attenuation of coercive impact. But that's not the... that's not the... the object of the exclusion, as I understand it, is it?
Barrington D. Parker, Jr.: I think the object of the exclusion in Brown is to eliminate the incentive to violate the Fourth Amendment. Brown wrestled... in addition to wrestling with the issue of how Miranda warnings fit in there, also following Wong Sun and the older cases, wrestled with the... a notion of where you draw the line following an illegal event in order to bring about deterrence.
Antonin Scalia: So you think the most significant factors are how flagrant was the... was the event which ought to be sanctioned by the exclusion and... it's just sort of strange to refer to that as attenuation. I... I... that's... that's what--
Barrington D. Parker, Jr.: I'm not sure... I'm not sure I could think of a better term. It's a... it's a shorthand that we're all familiar with.
William H. Rehnquist: --Well, you... yeah. Doesn't... doesn't it mean in part letting the defendant get back to normal from whatever effect the wrongful action might have had on him?
Barrington D. Parker, Jr.: It means that in part, I believe, and that's why it looks to the temporal factors. But it... it's complicated because I believe this Court's opinions have now indicated that as far... insofar as attenuation analysis is concerned the most important factor is the flagrancy of the police misconduct.
Antonin Scalia: Haven't we said that it's not a Fifth Amendment principle?
Barrington D. Parker, Jr.: It's a Fourth Amendment principle.
Antonin Scalia: It's a Fourth Amendment principle so really what we're looking to is not how coerced was the confession. And that's what gives me the difficulty in... in conceptualizing it as attenuation.
Barrington D. Parker, Jr.: Well, I... I realize that the... that there are gray areas around these principles, but I think that in terms of setting doctrine that courts can apply and have now experience with applying and are comfortable with applying, the attenuation analysis seems to be working. There is no indication here, in the record here... in this case that it's not.
Byron R. White: Well, the question is whether... I suppose in general whether this statement at the station house was a product of the arrest in the house without a warrant.
Barrington D. Parker, Jr.: Well, I believe under this Court's controlling doctrine that burden--
Byron R. White: Yeah, well isn't that... isn't that the issue or not?
Barrington D. Parker, Jr.: --Yes, I would agree. Yes.
Speaker: Yeah.
Barrington D. Parker, Jr.: But it--
Antonin Scalia: Are you sure you would agree? I think that makes it a Fifth Amendment principle. I think when you say a Fourth Amendment principle, you--
Barrington D. Parker, Jr.: --Well, that's a factual question certainly. But--
Byron R. White: --Well, would you... if you say it is a product there of the illegal entry, I would suppose it would be the same product if a statement was taken two weeks later.
Barrington D. Parker, Jr.: --But there it might be... there might be other intervening factors. And, of course, they'd begin to implicate Fifth Amendment concerns. But here, of course, the police went to Harris' house for the purpose of getting a statement and... and they got a statement.
Byron R. White: Well, but... they got a statement in the house and they got one at the station house. But the issue is the one... is about the one at the station house.
Barrington D. Parker, Jr.: That's correct.
John Paul Stevens: Mr. Parker, can I ask you... are you through +/? another question about New York law that I'm just not entirely clear on? This rule about the accusatory instrument makes it impermissible to question the suspect without a lawyer until a lawyer is... and he can't waive that right except in the presence of a lawyer which, as I understand it, is a holding in your Samuels case in 1980. Was that the law prior to Samuels?
Barrington D. Parker, Jr.: Oh, I--
John Paul Stevens: Is this an old New York rule or is this kind of a by-product of Payton is what I'm really asking, I suppose.
Barrington D. Parker, Jr.: --Now, I believe this body of law existed before Payton. It went back to some decisions in I believe the mid to early '60s.
John Paul Stevens: I see.
Barrington D. Parker, Jr.: And, of course, when Payton came along the body of law imposing the restrictions was suddenly confronted with this new element, this requirement that this Court set in Payton. I think what is significant there is that following Payton the legislature was asked to reconsider the requirement of accusatory instrument filing as a predicate to an arrest warrant. And the argument was made that some difficulties might be created... some difficulties had been created because of this Court's Payton decision, and the legislature rejected it. So here we have a case where the New York legislature... it's not... of course, the legislative history is not as complete as you would have for a congressional action. But there is some indication that the legislature in New York was aware of this position... aware of this situation and did not change... did not change the law having been advised of these concerns.
William H. Rehnquist: Thank you, Mr. Parker, and thank you for serving as an amicus curiae for the Court in this case.
Barrington D. Parker, Jr.: Thank you.
William H. Rehnquist: Mr. Coddington, you have eight minutes remaining.
Peter D. Coddington: Thank you, Your Honor. I have no intention of taking all eight minutes. I expect to be very brief. If I may, I'd like to begin by answering Justice White's question. I submit that the precinct confession here is by no means the product of the entry at all. I think the Payton violation here is completely addressed the seizing whatever evidence might have been found in the house, and to extend it further than that I think would be to apply a "but for" rule which this Court in Brown said was not the law. So, I submit that it is not a product whatsoever of the entry. And I think in terms of attenuation you can look to the second statement for evidence of attenuation. It was much more... much more detailed than the first. The first statement essentially said, I killed her because she was an unfit mother. The second statement, about an hour later, went through the detail of the prior affair with her, the abduction, that she lied to him, so on and so forth, and none of these details were given to the defendant by the police. This all came from his own recollection, his own independent act of free will. That's what I believe attenuates this confession. With respect to the time factor, here it's about an hour. In Rawlings I believe it was about 45 minutes. So, I mean, there is precedent in this Court's opinions for the time factor serving the effects of attenuation. Finally, back to the non-policy... I'll call it... of the New York state police department. Remember, in the record only one police officer testified that it was the custom to not get warrants. McCarthy at joint appendix page 8 said that if the defendant hadn't opened the door, he'd have left. Rivers himself at page 380 of the record testified that he'd been there once before. Nobody was home. He left. And why they went to this man's house?
Byron R. White: This isn't really the issue where you say there is a Payton violation and whether it's a product of a policy or not.
Peter D. Coddington: Okay. Fine. Good. Then that's--
Speaker: Isn't that right?
Peter D. Coddington: --That's the point I'm trying to make. And if this goes to the flagrancy of the police conduct, which is what most of the thrust of the amicus' argument was. That's what I'm responding to. It is not flagrant. I believe it was... had the facts been found slightly differently, it would have been in all respects lawful. It was not flagrant. This is, frankly, I think a clean case. This is a case where a hearing court with the benefit of hindsight found the facts differently than they appeared to the police. And that's why we're here. For all of these reasons, Your Honors, I think that the court of appeals misapplied this Court's precedence and I ask you to reverse their judgment.
William H. Rehnquist: Thank you, Mr. Coddington. The case is submitted.