Earl Warren: Number 92, Mabel Black and T. Y. Wulff et al. versus Cutter Laboratories Corporation. We'll wait just a moment. Now, Mr. Forer, you may proceed.
Joseph Forer: Thank you. The Court please. The decision under review in this case is a decision by the Supreme Court of California which set aside by a split decision of four-to-three, an arbitration award. The award had been made by the board of arbitrators in favor of the union which is the petitioner here through two individual officers and against the Cutter Laboratories which is the respondent company. And this award directed the reinstatement of a discharged employee, Mrs. Doris Walker, with a limited amount of backpay. Under California law, the decisions by arbitrators are conclusive on the merits, both on findings of fact and determinations of law subject to certain very limited exceptions which I need not go into. Here, the California courts accepted the findings of the arbitrators but set aside the Supreme Court, set aside the award on the ground that enforcement of the award would be against public policy as expressed in both federal and state laws. And the reason why they said it was against public policy was because Mrs. Walker was, as the arbitrators found, a member of the Communist Party. The key facts which were found by the arbitrators were these. Cutter Laboratories manufactures and sells throughout the United States biological and pharmaceutical products. It has both military customers and civilian customers. During World War II, the company was under stringent security regulations and controlled by the military authority. And at that time, the Government had the right to require Cutter Laboratories to discharge any employee as a security risk, although, the right, in fact, never had to be exercised. Since the end of World War II, the company has been under no such controls, although, I'm sure the Court is aware that the Federal Government has a very expensive program of so-called industrial security. On October 10, 1946, Doris Walker got a job at Cutter Laboratories, she was hired by them. She was first a label clerk and then toward the end of her employment became a clerk typist in the purchasing department. Soon after she was hired, Mrs. Walker became active in the petitioning union and in its branch at Cutter Laboratories and held successively various positions in the union. By October of 1949, which is the date in which Mrs. Walker was discharged, she held two positions in the union. She was the union's chief shop steward at the Cutter plant and she was also president of the union local which included branches at plants other than Cutter. At this time in October of 1949, the union and the company had been engaged in wage negotiations and they had reached at the particular time, more or less of an in pass. These negotiations were being carried on under a wage reopener clause in an existing collective-bargaining agreement. On October 5th, 1949, Mrs. Walker met as a union representative along with several other union representatives, with some of the top officers of the company on the union matter. And in the course of that meeting, the executive vice president of the company expressed anger and irritation over conduct by the unions, specifically a broadcast, a radio broadcast by the union dealing with the wage negotiations at Cutter. That was October 5th, 1949. The very next day, October 6th, 1949, Mrs. Walker was called in to the office of the top personnel man and she was discharged. To quote from the arbitrators' award, this discharge “was the discharge of top union official and negotiator at a passionate climax in the middle of a stubbornly contested wage negotiation.” At the time of the discharge, the company read to Mrs. Walker, a prepared written statement to the effect that the reason they were discharging her was because she had made false representations on her application for employment which she had tooled out some three years before. Because the company was convinced as a result of an investigation that she was a member of the Communist Party and that the nature of Cutter's business required the company to take precautions against sabotage and subversion. That very same day, shortly after Mrs. Walker was discharged, the company called a meeting of the employees of the plant. And at this meeting, it read the discharge clause statement which it had read to Mrs. Walker who was the president of the union at this plant. At the same meeting, remarks were made by company officials, telling employees “get out of that left wing union” and saying “nothing but a left wing union would press for wage increases at this time.” In other words, and now I'm making my own comment rather than the arbitrators, the discharge was exploited that very same day to oppose the union's demand for a wage increase. As the arbitrators found during the entire period of her employment of some three years, Mrs. Walker's conduct and performance on the job had been consistently satisfactory to the company. And at no time had there been at the Cutter plant any strike or any interference with production for about political or revolutionary objective, such strike or activities, there had been -- had clearly been legitimate union activity. Mrs. Walker also, as the arbitrators found, has never been arrested or convicted of any crime. Mrs. Walker's discharge after exhaustion of the contractual grievance procedure went to arbitration under the collective-bargaining agreement between the union and the company which agreement provided for binding arbitration. The issue before the arbitrators was whether the discharge had violated two particular clauses of the collective-bargaining agreement.One clause prohibited the discharge of any employee except for just cause. And the arbitrators construe the -- a discharge for unjust cause to mean a discharge which was not based upon grounds reasonably related to the employee's competence, performance, and general suitability in the job. That was one issue and if the union went on that, Mrs. Walker had to be reinstated. An alternative and the second issue was under a second clause of the contract which was whether the discharge was based upon a motive by the company to interfere with union activity. The union charged violations of both clauses of this contract. At the arbitration hearing, the company took the position that it discharged Mrs. Walker for the two reasons that it had given Mrs. Walker when it discharged her, namely, that she had falsified her application form in various respects, that she was a Communist, and that the company was afraid of the possibilities of sabotage by a Communist employee. Mrs. Walker admitted and the arbitrators found that she had falsified her employment application with regard to her education, concealing her full educational background and substituting a fictitious work history for her actual work history and that she had done this because she felt that if the company knew that she was overeducated for the position, if it knew that she had had a certain work experience particularly representing labor unions, she didn't think she would be hired as a typist. I may say that actually there's no real issue here under the decision by the Supreme Court of California regarding the falsification of the employment application in any respect. The real question comes with regard to the claim of discharge because she was a Communist. At the arbitration hearing, the company introduced evidence which satisfied the arbitrators that Mrs. Walker was a Communist and that the company honestly believe that she was a Communist. Mrs. Walker, who was a witness at the hearing, refused to answer a whole series and string of questions propounded by the company's lawyer designed to establish that she was a Communist and very -- and they devoted an act of Communist, her refusal was on the grounds that these questions were an unwarranted invasion into her private beliefs. The arbitrators ruled that the questions were material but said they would not require the witness to answer, however, coupling that with the warning that if the witness did not answer, then, they, the arbitrators, withdraw all justifiable inferences from the refusal to answer the question.
Speaker: She claimed Fifth Amendment --
Joseph Forer: No, she just refused from the grounds that this was her private beliefs, it was not of the company's business, had nothing to do with the arbitration. Now, the arbitrators eventually concluded from the record, and we -- we will grant that this Court has to accept that conclusion whether right or wrong is of no consequences right for the purposes of this Court. The arbitrators eventually concluded from the record, both from the company's evidence and from the refusals to answer, that Mrs. Walker was a Communist. They therefore held that they had not deprived the company of any rights. The company has not been prejudiced by their refusal to direct Mrs. Walker to answer the questions as to whether she was a Communist, because they said that would just had been corroboration of what they found anyway, therefore, the company got what it wanted. Nevertheless, the arbitrators ruled in favor of the union and they held that Mrs. Walker had, in fact, been discharged without just cause and because of her participation as an officer, an important officer in union negotiation. Now going into the details, they rested these conclusions heavily on the timing of a discharge on the fact that the company had known for two years or more -- over two years before the discharge and from about six months after Mrs. Walker had hired. In other words, they had known her for two-and-a-half years. While Mrs. Walker was working for them, the company had known these facts in substance, namely, it had known that she had falsified her application and it had known that she was a Communist. And the arbitrators pointed out that the company had been indifferent to these facts until the critical union negotiations period, they found that the grounds actually given by the company was stale that they were not the true grounds, that the true grounds were to interfere with the union wage negotiation. When the company refused to abide by the award, the union went to Court in order to confirm the award under California procedure. The Superior Court of California confirmed the award, the intermediate appellate court affirmed. The Supreme Court of California reversed four-to-three holding, as I've already said, that enforcement of the award would be contrary to public policy because of these Communist business.
Speaker: What -- what authority does the -- the California courts have over an award?
Joseph Forer: Under the California statutes, awards arbitration, at least if by agreement it is meant to be binding, must be enforced by the California courts without reviews subject to very limited exceptions such as corruption on the part of the arbitrators or that they exceeded their authority. However, the Supreme Court of California has now also held and that is an obvious -- they must be accepted by this Court that the California courts have authority to refuse, to confirm an award if that would be against the public policy of the State.
Speaker: And you, you accept that?
Joseph Forer: Oh, yes. I -- I don't think that this Court can change the California procedure on award. At this point, the petitioner and the respondent come to a parting of the ways. We brief the case on one view, they brief it on a different view. As we understand the case, we say that the state court refused to confirm the award in favor of the union to reinstate Mrs. Walker on the ground that Mrs. Walker was a Communist and they said it is against public policy to allow a Communist to work in private industry, and we say that is clearly unconstitutional. The respondent doesn't dispute on legal argumentation but it says that that's not applicable to the facts. It says that what actually happened is that the board of arbitrators found and the Supreme Court of California interpreted the arbitration award as finding, not that Mrs. Walker was just a member of the Communist Party but that she was a member of the Communist Party, “with the full implications of dedication to sabotage, force, violence and the like which party membership is believe to entail.” The quote is taken from the arbitration award which is quoted by the Supreme Court's opinion. Now, this language concerning --
Felix Frankfurter: What is quoted from what? The quotation --
Joseph Forer: Membership in the Communist Party with the full implications of dedication to sabotage, force, violence, and the like which party membership is believed to entail. They said that the --
Felix Frankfurter: Where does it come from, Mr. Forer?
Joseph Forer: I say originally the quote is from the arbitrators' report and then the Supreme Court of California referred to it. What they say, is that the arbitrators found that she was found that she was a member with the full implications of dedications to sabotage, which Communist Party membership is believe to entail. Now, this language is regarding full implications, seems to me to be something less than clear. But the respondent's argument is that what the arbitrators found and what the Supreme Court of California said they found was that Mrs. Walker was personally dedicated or devoted to sabotage in violence as a person. And they say, maybe it's unconstitutional to -- to exclude from private employment a person just because she's a Communist, but it isn't unconstitutional to exclude a Communist who has been found to be and is personally dedicated to sabotage and violence.
Felix Frankfurter: Well, now was the latter -- it was the latter ground on which the Supreme Court of California went for the moment I'm not -- I'm not breaking the question --
Joseph Forer: I know.
Felix Frankfurter: -- whether they were justified in going on that ground --
Joseph Forer: I --
Felix Frankfurter: -- and that's the professed ground of the California decision.
Joseph Forer: I am coming to that because that's the question. I've got to go into that. I -- if you will bear with me --
Felix Frankfurter: You can't -- you can't tell (Voice Overlap) --
Joseph Forer: I -- my view is no, their view is yes, and it's a little obscure. And if you will bear with me, I will be coming to it in a minute. The --
Felix Frankfurter: In other words, there's a conflict between you and the respondent --
Joseph Forer: On what --
Felix Frankfurter: -- on what it is that the California court really decided.
Joseph Forer: That's right.
Felix Frankfurter: Now, assume that they've decided -- but you also going to tell us, what your view is, assume they decided or it could fairly be construed if decided --
Joseph Forer: Yes.
Felix Frankfurter: -- what respondent did --
Joseph Forer: Yes.
Felix Frankfurter: -- if that is -- if that was the view -- you still reject that as it is?
Joseph Forer: Yes.
Felix Frankfurter: So, from your point of you, it doesn't matter what they decide --
Joseph Forer: Well, it matters --
Felix Frankfurter: In this case, I mean?
Joseph Forer: Well, it matters. It gives me a much easier case, a much different case to argue, matters in that respect that makes it easier case for Your Honors to decide. And I think it is important that in deciding this case that we make plain just what is being decided, and that's exactly what I would like to get to now. In other words, their position is that Mrs. Walker was found to be a sabotage addict. Like they had narcotics addicts, they say she was a sabotage addict. This rest on a single passage in the arbitrators' report, it's the first two paragraphs at -- at the top of page 29 of the record. And this thus refer -- that the first two paragraphs on that page -- and this thus refer to membership in a Communist Party with the full implications and dedication to sabotage, force, violence and the like which party membership is believe to entail. And then, they -- they point at the second paragraph it says that the company honestly believe all these things and the accuracy of those beliefs is established in the record as follows. So, they say, "Well, that is a finding," that it not only believe that membership -- that membership in the Communist Party had full implications of dedications to sabotage, but it plead that that belief -- but that -- the finding to that belief was accurate. I must say that -- that if you try to read those two key paragraphs literally, all you get is sheer gibberish because you can't see how the accuracy of a belief about the nature of party membership has anything to do with the thing which immediately follows it which deals with omissions and falsification on the application for employment, nor can you see that the accuracy of a belief is proven by the last clause of that paragraph that the belief is presently understood by other people. The fact that a lot of people share a belief doesn't mean obviously that the belief is accurate, otherwise, the world would never have changed from flat to round. Now, the only sensible interpretation of the passage is that the Board did find that Doris Walker was, in fact, a Communist and that it found that the company honestly believe that she was a Communist and that it found that the company honestly believe than what is a prevalent view that a Communist is a person who is dedicated to sabotage force and violence. You just can't read that particularly in the context of the report as a whole as anything so preposterous as a finding that Doris Walker was a sabotage addict.
Felix Frankfurter: When you say Communist, you mean member of the Communist Party --
Joseph Forer: Member of the Communist Party --
Felix Frankfurter: -- and not through a sense.
Joseph Forer: No. I mean it as a member of the Communist Party. Although, as Your Honor maybe aware, a member of the Communist Party also has a very loose meaning.
Felix Frankfurter: I -- I'm not drawing any implication --
Joseph Forer: All right.
Felix Frankfurter: -- from the latter but I --
Joseph Forer: Yes, I mean member of the Communist Party. As I say, the notion that an arbitration board would find that somebody is a sabotage addict it's strange on the face of it. This Board wasn't conducting a lunacy inquisition, it was conducting an ordinary arbitration. Now, the true meaning of the passage, is what I say it means, becomes crystal clear when you look at the report as a whole because you note that the report, although it compiles the evidence very exhaustively including all the evidence of Mrs. Walker's claimed Communist Party membership, recites no evidence having to do with sabotage or force or violence either by Mrs. Walker, by the Communist Party, by any Communist or by anybody else. And to us, as it recite any predilection or any evidence showing a predilection on Mrs. Walker's part for such activity. Furthermore, the questions asked by Mrs. Walker of the company and which she refused to answer and from which the arbitrators said they might draw inferences, those questions had no reference to sabotage or what. Now, let me come to the -- so -- well, let me put it this way. Their view is a -- a abates point which makes no sense in reading the arbitration award and I must say that even -- that you can't really tell what the full implications mean anyway. Now, let me turn to the decision of the Supreme Court of California. They say, "Well, the Supreme Court of California agreed with their view that the board of arbitrators found that Mrs. Walker personally was a sabotage addict." Now, in the majority opinion, the Court on one occasion paraphrasing respondent's argument thus refer to the arbitrators award as directing reinstatement of a member of the Communist Party "who is dedicated to that parties program of sabotage, force, violence and the like." At another passage, the California court says that the board of arbitrators found that the activity engaged in by Mrs. Walker was "membership in the Communist Party with the full implications of dedication to sabotage force, violence and the like which party membership is believe to entail." So far, it sounds like they have a point. But it is also clear from the opinion, reading the opinion as a whole and reading other passages that to the California Supreme Court, the conclusion that a person is dedicated to sabotage in violence is the automatic and inevitable conclusion from a statement that the person is a Communist at least to these -- has physical consciousness. Its theory was, for example, and this appeared from the opinion, that a person who says that he is carrying on the program of the Communist Party and the -- the company introduced a letter in which Doris Walker was purporting to say that it -- it -- she was faithful to the program or principle of the Communist Party. Its theory was that anybody who says he's faithful or carries on the program of principles of the Communist Party automatically, thereby, acknowledging being a criminal conspirator and a saboteur. It's making no allowance for the fact that the view of the person making the statement of what our Communist principles doesn't necessarily coincide with the understanding of the majority, the four justices of the Supreme Court of California of what a -- of what are Communist principles. Again, the California court uses Communist Party member indistinguishably with a -- a person who is dedicated to sabotage. For example at one point in referring to the finding by the arbitrators, the California court said that the Board's finding was that the company "honestly and correctly believe Mrs. Walker to be a knowing and deliberately acting Communist." And another point it said, "Every Communist Party member is a clear and present danger," and at another point it said, "Acts of sabotage are reasonably to be expected from any and every Communist." In short, the California court majority considered that Doris Walker was and was found to be dedicated to sabotage and violence, merely, because it thought that she was and was found to be a Communist in possession of her consciousness. The Court establishes the law in California. The proposition that all Communist are ipso facto without the need for proof, personally dedicated to sabotage and violence unless they are not in a coma. Its view was that the -- an addiction to sabotage was the inevitable conclusion from the finding that Mrs. Walker was a Communist. Now --
Speaker: What -- what gave this lady the right to be reemployed?
Joseph Forer: The -- the thing that gave Doris Walker the right --
Speaker: (Inaudible)
Joseph Forer: -- to be reemployed was the provision in the contract, plus the law of the State of California that arbitration to enforce a contract is binding, and that -- in other words, you can contract in California to have a binding arbitration which she had a contractual right for reinstatement.
Speaker: That -- that contractual right to the labor agreement that (Voice Overlap) --
Joseph Forer: Yes. Well, actually, of course, the -- the plaintiff was the union. The union had the contractual right to have her reinstated.
Speaker: And -- and she was employed under that contract?
Joseph Forer: Yes.
Speaker: And she was discharged for labor union activities?
Joseph Forer: She was discharged for labor union activities. Yes, sir.
Speaker: Now, the California court didn't agree with you on that Supreme Court, didn't it?
Joseph Forer: The California court said that whether she was discharged for union activities or not, she couldn't be reinstated because it is against public policy for Communist to hold jobs in -- in a private plant. That's what the California --
Speaker: Well, I'm -- I'm looking at the --
Joseph Forer: Wait. I just want to add one other thing. In addition to that it said, that it is impossible for Communist to engage in union activities because even when they are engaging in union activities, they are still Communist. Now, I think it --
Speaker: Well, what did they -- what did they mean in that part of the opinion when they said, "Her activities therefore, upon any reasonable view of evidence, the findings of the fact were not union activities but were Communist Party activities."
Joseph Forer: I don't know what they mean except they -- they took the view that it is impossible for a Communist to be -- to engage in union activities because when the Communist engages in union activities, the Communist is doing so to forward communism. That's what their view seems to be. I may say there was no evidence on that support, that -- that again they say that's inevitable. A Communist can't engage in union activity. That --
Speaker: Well, I -- I --
Joseph Forer: That's what they said.
Stanley Reed: Yes. I was wondering that it -- perhaps the contract that the union had with Cutter --
Speaker: Yes.
Stanley Reed: -- provided for reinstatement only when they had been discharged from union activities?
Speaker: No. The contract provided as I've said at the beginning, Mr. Justice Reed, there were two clauses that the discharge violated. One, was discharge of any employee without just cause. And that had nothing to do with or without union activities. And Doris Walker was found by the arbitrators to be discharge without just cause and that the reason action given was a fake. And then in addition to that, it was found that she was also fired in violation of the contractual prohibition against firing to interfere union activities.
Stanley Reed: Now, the Supreme Court overturned that?
Speaker: Yes. They overturned it on the grounds that --
Stanley Reed: They said she was discharged at least one of the grounds of the discharge was this false representation that she'd made?
Speaker: Well, no. The -- the company said that the false representation was one of the grounds for discharge. The arbitrators found that that was not a true ground and had been waived and that finding was not, in anyway, overturned by the Supreme Court of California. May I -- let's say I think that false representation just added the case. Let me go back. The reasoning by the Supreme Court of California that every Communist who was not in a coma is a -- a sabotage addict makes the question, the one which we see it and not the one which the respondent says is the case. In other words, the award was denied confirmation on the theory that Doris Walker is a Communist by California law, all Communist are conclusively presumed to be personally addicted to sabotage and violence and this -- and not on the grounds that there was evidence and the arbitrators found that aside from this legal presumption of the nature of Communist that Doris Walker was a sabotage risk. But even if the California court held and now I'm coming to the second question that Mr. Justice Frankfurter presented. But even if the California court held that the arbitrators found that Mrs. Walker was personally addicted to sabotage, that folding is not binding on this Court. And even if the arbitrators so held, that holding is not binding on this Court. Although, as I say, the only sensible interpretation of the finding is that wasn't so found and the only sensible interpretation of the opinion is that that wasn't so held. But going under a theory, the findings and construction in that respect would not be binding on this Court because the question of constitutional right, a question of the invasion of Doris Walker's constitutional right is here involved. And if the Court examines the evidence before the arbitrators, all of which is printed in the record, it is impossible to find any evidence that Doris Walker was personally addicted to force and violence or sabotage or any evidence that anybody else was or believe in. And the same thing is true as I said earlier that none of the question asked of her related to the subject. The basic question which this case raises then is this. May the State announce and implement a public policy that Communist should not be employed in private industry. In this particular case, the public policy was implemented by refusing to confirm an arbitration award which under California law would have been confirmed and thus enforce for any non-Communist. But if the principle of this particular implementation is sound, it necessarily follows that the same public policy that Communist are not allowed to work could be implemented further as for example by state legislation making it a crime for Communist to work in private industry or for Communist to be hired by private industry. This public policy that Communists are unemployable was applied in this case, even though the particular immediate victim did not had a sensitive job but was just a typist in the purchasing department. It was applied even though the employer was not a defense claim, now, it's true that the company's products and operations are susceptible to sabotage but what plant is not. This public policy was applied even though its immediate victim was never convicted of any crime and without any evidence that she personally, actually engaged in or advocated sabotage or violence. It was applied even though the victim never had a trial by jury or any other kind of a judicial trial and even though the employer as the arbitrators found were willing to retain it though she was a Communist but they fired her because she was a union official. Now, I say that due process and equal protection prohibits to state from applying the policy that Communist are not allowed to work in private industry, particularly on the completely undiscriminating basis that was applied here. Moreover, I say the manner in which this policy was applied in this case that is where the edict that Doris Walker is an unemployable person was issued without evidence and without a judicial trial, that violates procedural due process. The right of Doris Walker to work in private industry which means her ability to eat is an essential right vital to the preservation of life itself.
Felix Frankfurter: Was this lady a lawyer?
Speaker: Yes. She was a lawyer. She left -- let me go to that as I say --
Felix Frankfurter: I just -- I just want to (Voice Overlap) --
Speaker: Alright. The lady was a lawyer. She wanted to be a labor lawyer. She got frustrated because she couldn't find work as a labor lawyer, she decided to become an ordinary worker, and she did. Under the Equal Protection Clause, the State cannot deny Doris Walker the right to be employed, while other people enjoy the right to be employed, without some strong compelling rational basis for classifying Doris Walker as an -- as unemployable. And it can't deprive her of access to judicial remedies which are available for litigants generally and they can't deprive her of the benefits of union representation, all of which is been done here, merely because she is a Communist. Anymore than as this Court held last Monday, the State of Illinois could deny access to an appellate court to people merely because they were invisible. Now, under the Due Process Clause, the State may not deprive Doris Walker of this essential right to earn a living, to obtain the benefits of union representation unless there is a compelling rational basis for the deprivation relating to her, not to the Communist Party but relating to her, and unless a fair procedure was employed to achieve that deprivation. There is and can be no such basis here. The California court is ruled that there is conclusive presumption that Doris Walker is unemployable and unfit for union representation, because being a Communist, she is necessarily personally addicted to sabotage. Let me quote one passage from the opinion at page -- the record at 488, "That acts of sabotage by Communist are reasonably to be expected. At anytime such acts maybe directed by the party leader is not open to question." Doris Walker couldn't question that if she were a Communist, she was necessarily addicted to sabotage. This presumption was erected without any evidence to support it as to Doris Walker personally or for that matter as anybody else, and it was applied without a judicial trial for Doris Walker. Doris Walker has been caught in a mass adjudication of group criminality. This is not and cannot be due process, substantive, or procedure. This Court has repeatedly held that evidentiary presumptions violate due process if they had no rational basis in common experience and if they are not subject for rebuttal by evidence. Here, the presumption was made without evidence and it's not subject to rebuttal but is conclusive on Doris Walker, and on anybody else who happens to be or is believed to be a Communist. And that basis furthermore has no rational -- that finding, that presumption has no rational basis and it has no basis in common experience. It is not rational and it does not accord with common experience, to hold that all Communist in California or anywhere else corresponds to the stereotype of a Communist which has been erected by the enemies of Communist. It is not rational and there is no experience basis from which to conclude that every Communist in California or anywhere else, every Communist is addicted to sabotage and violence. As matter of fact, it is not rational to conclude on the basis of experience that most Communist or many Communist are so addicted. The Supreme Court of California didn't cite any instances of sabotage inside of California or anything else to prove that Communist commits sabotage, and therefore Doris Walker is prone to sabotage. All it cited were animate versions against communism in legislation and various opinions. If all Communist in capitalistic countries are saboteurs, it is impossible to explain how a factory remain standing in such countries as Italy and France. This country was -- this Court was met with an argument in Stack against Boyle, that all Communist or points of the Communist Party which is a criminal conspiracy and that they're so likely to flee justice if the party leader tells them to flee that when they're arrested under the Smith Act they have to be put on prohibitive bail. The Court in an opinion by Chief Justice Vinson repudiated that argument and had held that Communist like everybody else under our Constitution are presumed to be innocent until proven guilty, and that they must be personally and individually judged. What has happened here is that Doris Walker has been attainted on the basis of a policy that makes absolutely no sense at all in any respect. Communist are people, people different. If people are going to live together, there has to be somewhere, some limit. On the precautions, it can be taken to exclude people from society on the grounds that someday, some place, somehow, they may do something bad like throwing a bomb. Otherwise, you just have this terrible injustice and all of association gets disrupted. You can't in California permit the -- a crowd to go to the Rose Bowl game without giving everybody a bombing test because somebody might throw a bomb. On this record, there is no -- and on any record on any theory, there is no rational basis for this discrimination against Doris Walker, and therefore, it is a violation of due process. This violation is particularly acute here because it occurs in an area of First Amendment right. On this record, Doris Walker has been declared unemployable solely because of her unpopular political beliefs and associations though she has never committed a crime without a judicial trial. In the Schneiderman case, in -- however, some members of the Court may disagree with the final holding of the Schneiderman case but one thing is indisputable. In the Schneiderman case, both the majority and the minority recognized that it was possible that the leading Communist in California, Mr. Schneiderman, the Secretary of the California -- of the party in California, it was possible that he -- the leading Communist in California could be attach to the Constitution and could be well dispose to the peace and well-being of the United States. And that it was possible that no matter what official Communist Party doctrine might be that this leading official didn't necessarily advocate doctrines of force and violence. The California court says that isn't possible. It says it is impossible for any Communist unless he is completely unconscious not to be a saboteur and a traitor and it made this decision not on the basis of evidence introduced in a trial but on the basis of a political climate, ex parte and on aversions against communism and it's perfectly clear on the basis of a personal and political prejudices of the four judges who constituted the majority. When this Court upheld Section 9 (h) of the Taft-Hartley Act in (Inaudible) It recognized that the non-Communist affidavit provision reached the brink of unconstitutionality under the First Amendment, but it sustained 9 (h) on the grounds that it didn't do very much to Communist or to their first amendment rights. It said it only touch a handful of Communist that it didn't deter a party membership as such, that the only persons affected were people -- were Communists who were in a position of power over the nations economy. All these reservations have been swept aside in California which now holds that any Communist cannot hold any position in private industry no matter how meaningful. The rationality of this public policy erected by the Supreme Court of California is underscored by the source from which it derived that policy. It relied on chiefly on various states in federal legislation. Among the state legislation relied on was the California criminal syndicalism law. But this statute is not in effect, it violates the Supremacy Clause as it clearly appears form this Court's decision recently in the Steve Nelson case. So we have case of public policy derived in part from superseded legislation which violates the Supremacy Clause. Among the federal legislation relied on is the Smith Act, and the Smith Act doesn't say anything about Communist or communism. It is after for -- only the persons who are convicted at the trial by jury, after having a presumption of innocence apply of personally advocating violent overthrow of the Government, personally conspiring, so to advocate or belonging to an organization knowing that it advocates violent overthrow. From this legislation itself on the edge of unconstitutionality, it was irrational for the California court to distill the proposition that Communist can be punish without trial, without evidence, without the presumption of innocence, without regard to personal innocence and despite a lack of guilty now. The California court had solved one of the Smith Act problems. There's been a problem under the Smith Act of whether -- of whether Communist can get fair trial. It solved the problem, it says don't give him any trial at all. This whole thing is so irrational that -- that it -- it reaches a -- a level which is obnoxious. If all Communist are alike -- if all Communist made anytime a drop of bomb, I suppose it would be reasonable if Mr. Sean O'Casey who was a Communist in a capitalist country and Picasso who is a Communist in a capitalist country, I suppose it would be reasonable to lock them up because they might go to a theater, they might go to an art gallery, they might throw a bomb, they therefore dangerous. I say that no such thing can stand. This whole thing is a clear violation of due process and equal protection. Let me now turn to my second point, and that is that this public policy which has been applied by the Supreme Court of California and which was invented by it cannot stand because it violates federal policy and federal enactments. And the first of these is the federal policy created by the National Labor Relations Act, the Taft-Hartley Act in the interest of protecting interstate commerce. The decision below holds that Communists are not entitled to the protection of union representation or the protection of a collective-bargaining contract, because if a union can't make a contract which protects your employment rights or protects your salary, it's perfectly obvious that they can't represent you in any effectual meaning. But the National Labor Relations Act sets forth its policy very clearly and it says that all employees in interstate commerce should be allowed to be and must be allowed to be represented by labor unions and must be allowed the privilege of collective-bargaining through unions of their own choosing. Furthermore, the policy of the Act, as expressed in Section 83, is that labor unions should be protected against discriminatory discharges because of union activity. Now, those policies of the Act which are federal law apply whether the person, the employee involved is a Communist or not. The Act doesn't say that only non-Communist can bargain to labor unions and only non-Communist can join a labor union. Now, its true that in Section 9 (h), the Congress showed that they didn't want Communist to be officers of unions, but they never went so far as to provide that Communist can't be represented by union. The amicus brief and I should make this point of the National Association of Manufactures which has been filed in this case. The N. A. M. filed a brief on the laboratory side and the American Civil Liberties Union filed an amicus brief on our side. The amicus brief to the N. A. M. suggest that if there is a conflict between the decision below and the National Labor Relations Act, then, it says -- I'll resume after lunch.
Earl Warren: We'll recess now.


William H. Rehnquist: We'll hear argument next in No. 02-809, Maryland v. Joseph Jermaine Pringle. Mr. Bair.
Gary E. Bair: Mr. Chief Justice, and may it please the Court: When the officer stopped the car respondent was riding in and found drugs packaged for distribution in the rear seat armrest, and then also found a large amount of cash in the glove compartment--
William H. Rehnquist: What... the rear seat armrest was pushed up--
Gary E. Bair: --Yes, Your Honor.
William H. Rehnquist: --and then the drugs were behind the... the armrest?
Gary E. Bair: Yes, Mr. Chief Justice. The rear seat armrest was pushed up against the rear seat. The officer merely folded it down and then the drugs appeared, and these are drugs that were packaged in five separate individual packages that were packaged for distribution at $20 a bag. The officer also found $763 in a rolled-up ball of cash in the glove compartment, and there... at that time there was individualized probable cause that focused on all three people in that car, and this is so for three principal reasons. First--
Sandra Day O'Connor: At the end of the day, what happened?
Gary E. Bair: --At the end of the day, all three were arrested, respondent confessed, and said the--
Sandra Day O'Connor: And respondent was a front seat passenger?
Gary E. Bair: --Yes, Justice O'Connor.
Sandra Day O'Connor: He's the one who confessed?
Gary E. Bair: Yes.
Sandra Day O'Connor: And was found ultimately guilty of--
Gary E. Bair: He was found--
Sandra Day O'Connor: --some drug-related offense?
Gary E. Bair: --He was found guilty both of possession and possession with intent to distribute.
Sandra Day O'Connor: And the other two?
Gary E. Bair: The other two were not charged formally after respondent confessed. The officer made a discretionary decision not to charge the other two at the station house after respondent confessed to this crime.
Sandra Day O'Connor: Do you say that there was probable cause for the arrest of all three at the time they were found?
Gary E. Bair: Yes, Your Honor.
Sandra Day O'Connor: Was there probable cause sufficient to support charges at a preliminary hearing--
Gary E. Bair: I think there would have been.
Sandra Day O'Connor: --against all three?
Gary E. Bair: I... yes, Justice O'Connor, I think there would have been. I think, given the circumstances of this arrest, the mere fact that one of the three confessed doesn't ultimately determine that the other two were not culpable.
Sandra Day O'Connor: Is there any additional requirement for establishing probable cause at a preliminary hearing above and beyond what's needed for the arrest, or are they identical, in your opinion?
Gary E. Bair: I would say they're identical, Your Honor.
Anthony M. Kennedy: So... so under... under that view, assume no confession, hypothetical case, under that view, these people, all of the three could have been bound over for trial?
Gary E. Bair: I believe so.
Anthony M. Kennedy: And under that view, any motion to dismiss prior to trial would have to be denied?
Gary E. Bair: I believe there would have been probable cause to charge and to take the cases to trial.
Anthony M. Kennedy: And I suppose what happens in that case is the judge says, and I want to tell you right up front I think this is a very skimpy case, you'd better come up with something... I guess that's the way it works--
Gary E. Bair: I think so--
Anthony M. Kennedy: --But there's... but the... as Justice O'Connor said, it's probable cause and it's the same standard... excuse me... it's the same standard to bind over on arraignment as it is for the officer to arrest?
Gary E. Bair: --My understanding from the case law, Your Honor, is that probable cause is probable cause, be it to search, to arrest, or it... I think it's a fluid concept, obviously depending on the exact context, and I'm not saying that a prosecutor would not exercise discretion as would a police officer in a given case not to take a case forward.
William H. Rehnquist: Well, a preliminary hearing is largely a matter of Maryland law, isn't it, or State law?
Gary E. Bair: It is and--
William H. Rehnquist: I mean, is there any... any constitutional requirement that there be a preliminary hearing before a criminal case is tried?
Gary E. Bair: --Not that I know of, Your Honor, no.
Anthony M. Kennedy: Well, I take it even under the Constitution, if it's a Federal case, both the indictment and the... or the information shows simply probable cause, that's enough to bind over?
Gary E. Bair: I believe so, Justice Kennedy, I believe so. Now, in this case, of course, there was--
Anthony M. Kennedy: But if you say it's fluid, that... that concerns me. I was somewhat puzzled by what the Government said in its brief, page 26 to 28, it says, well, you know, it's fluid, the prosecutor takes a second look and it... it sounds as if the prosecutor has a greater burden, but I... I'm not sure that that's the law.
Gary E. Bair: --I'm not sure it's a greater burden. I think the prosecutor's decision, of course, is looking forward to trial where they know that they have to prove the case beyond a reasonable doubt. They know they have to get past a motion for judgment of acquittal. The police officer on the scene is making the same type of decision vis-a-vis probable cause but it's in a very different context. I think that's the difference.
Sandra Day O'Connor: In your view, is this very fact-specific so that it might come out differently if the money and the drugs had been located in some little pocket next to the driver as opposed to some rear seat passenger or other passenger?
Gary E. Bair: I think one factor that would significantly change the totality of the circumstances here would be, for instance, if the drugs had been found on the person of one of the passengers.
Sandra Day O'Connor: No, that wasn't my question. What if--
Gary E. Bair: If it had been--
Sandra Day O'Connor: --they were found very close to the driver, you know, sometimes there's a little pocket right next to--
Gary E. Bair: --In the door?
Sandra Day O'Connor: --on the door, on the driver's side. Suppose it were there but you had a passenger in the front and in the rear. Any different result?
Gary E. Bair: Not in this case, no. I think... I think if... if the drugs are found in a common area of the passenger compartment of the car--
Ruth Bader Ginsburg: How about the trunk?
Gary E. Bair: --I think the trunk changes things a little bit, but of course you have to look at the totality of the circumstances, Justice Ginsburg.
Ruth Bader Ginsburg: Why a little bit? I thought this whole case was predicated... your whole case was predicated on those drugs between the armrest and the backseat were accessible to all three people in that car.
Gary E. Bair: That's--
Ruth Bader Ginsburg: Now, if you have something in a locked trunk, it truly is not accessible to the passengers.
Gary E. Bair: --It certainly is not as accessible, and of course it's not as immediately accessible, but, for instance, if there had been a large quantity of drugs in the trunk or if there had been a dead body in the trunk, I think then there is a... the calculus changes in terms of totality of the circumstances, and I think if it were that situation, even though that particular evidence was in the trunk, I think there's still a... a strong inference that could be drawn that everyone in the car knew about it, because who would take the chance in terms of taking along innocent passengers--
Ruth Bader Ginsburg: Well, let's stick to the five... these five bags that were stuck in a Ziploc bag. The Ziploc bag is in the trunk, not a dead body.
Gary E. Bair: --I understand. I think in that case there would be a much closer case, it would be a much more difficult case vis-a-vis all three occupants of the car.
Sandra Day O'Connor: But under-- --Okay, what about the-- --under... under your view, if... if the car is in a high crime area and some mother gets a ride from her son who she perhaps doesn't know has been involved in drugs, then if drugs are found anywhere in that car, she's subject to arrest and... and sufficient for charge?
Gary E. Bair: Not... not--
Sandra Day O'Connor: I mean, suppose it's at... in the middle of the day and she's going to the grocery store, we don't have it at 3:00 a.m. in an area where drugs are frequently sold. Does that enter into the calculus?
Gary E. Bair: --I think it does, Your Honor. I think, obviously with... with... with the totality of the circumstances, anytime you change... and, of course, some of these are going to have more minor impact, some are going to have more major impact. But in this case you had, of course, 3:16 in the morning, three men who were roughly of the same age who appeared to be intimately connected with one another, you had the drugs and the money. I think here's a very strong case, but I agree, Justice O'Connor--
John Paul Stevens: What if there had been four people in the car?
Gary E. Bair: --I don't know that four people would change things.
John Paul Stevens: How about six?
Gary E. Bair: I think within the--
John Paul Stevens: Or what if it was a minivan and there were eight in the minivan? [Laughter]
Gary E. Bair: --I'm not sure it changes it significantly, Your Honor. I think that the most significant--
John Paul Stevens: You think with eight people in the minivan you could arrest all eight and hold them over for trial?
Gary E. Bair: --I think if you have identical circumstances to these in terms of the time, how well-acquainted they all appeared, the fact there was money, the fact that there were drugs packaged for distribution. It appeared to the officer, a reasonable inference, that there was a drug distribution common enterprise.
John Paul Stevens: But the distribution, as I understand it, was just enough to take care of a big party. There was no evidence that they were for sale, was there?
Gary E. Bair: Well, the evidence, at the time the officer made the arrest, I think he could draw an inference that there was cash proceeds perhaps of former drug sales, prior drug sales, and there were five individually packaged crack... hits of crack cocaine.
Ruth Bader Ginsburg: And the charge was possession with intent to distribute, wasn't it?
Gary E. Bair: Yes, it was both simple possession and possession with intent to distribute, and he was convicted.
Ruth Bader Ginsburg: How about if it had been a bus? Now, we've gone from the sedan to the minivan, how about the bus?
Gary E. Bair: I think a bus is different, Your Honor. I think a bus changes things significantly in the... in the context of, of course, the numbers of people are much greater, and then there's--
Antonin Scalia: Are you talking about a public bus or you're talking about a chartered bus? [Laughter]
Gary E. Bair: --I think that would affect obviously the totality of circumstances as well.
David H. Souter: What... what is... what is the rule that you're... there's the restatement hypotheticals... Restatement of Torts, where there's the dead body, two people are each accusing the other, and add... I don't know how the hypothetical would work... but add to the mix that only one could have done it. Can you arrest both?
Gary E. Bair: I think you can, Your Honor. I think both the Restatement of Torts, the Model Code of Pre-Arraignment Procedure, and just the... the nature of probable cause would permit that, because we're talking about--
David H. Souter: The Model Code of Pre-Arraignment Procedure just talks again about probable cause?
Gary E. Bair: --Same situation where you have, say, two people, only one of whom could be guilty of the crime. You could still have... you still would have probable cause to arrest both.
Antonin Scalia: But that's two people and here you've got three. What about three? I was going to ask, what about three?
Gary E. Bair: I think three is... is--
Antonin Scalia: You can arrest all three?
Gary E. Bair: --I think so.
Antonin Scalia: What about five? You're going to arrest all five? Even... I mean, you know, it gets worse and worse--
Gary E. Bair: Well, of course.
Antonin Scalia: --10 percent chance, there are 10 of them now--
Gary E. Bair: And... and--
Antonin Scalia: --so the chance that any individual one did it is 10 percent. That's still enough?
Gary E. Bair: --I think we can't draw... the Court in Gates said that you cannot quantify probable cause. You have to... in those circumstances--
Antonin Scalia: It doesn't mean probable.
Gary E. Bair: --No, it does not mean probable. Clearly--
Antonin Scalia: Why do we call it probable cause?
Gary E. Bair: --I'm not... I think there's a bit of a misnomer there, but clearly from the case law of this Court, it means a fair probability, it means something greater than reasonable suspicion under Terry--
John Paul Stevens: But if you had to reduce it to a percentage figure, what would you call the percentage required for probable cause?
Gary E. Bair: --I don't know that I could, Your Honor. I really don't know that it's useful to--
John Paul Stevens: But it's less than 50, though, I gather?
Gary E. Bair: --Yes. Your... the cases of this Court has said--
John Paul Stevens: So that takes care of the two people in the room, but when you get down to 33-1/3 with three people?
Gary E. Bair: --I think... I think three people clearly would be--
John Paul Stevens: And with four people it would be 25 percent. Is that enough?
Gary E. Bair: --Probably, probably.
Stephen G. Breyer: Probably. [Laughter] You... you agree... you agree that at some point the probability is... when the numbers of people present keep increasing, at some point the probability is going to be too slim?
Gary E. Bair: Yes, I agree with that. I agree with that, but again, in Illinois v. Gates, this Court said we will not, we cannot, it's not useful to try to quantify probable cause in that way, we still have to look at the totality of the circumstances beyond whether there are two people or three people or whatever.
Ruth Bader Ginsburg: And one is--
Gary E. Bair: Of course, on the Government's theory I don't think it would matter, because they say you can infer a conspiracy, and I suppose then the whole bus could be in the conspiracy, but if it's an individual approach, which I think you're taking, then the number of people might make a difference. I think so. Now, of course, it would depend on... on the crime that the probable cause was going to. In this particular crime, of course, drugs can be jointly and constructively possessed, so clearly in this particular car, all three of the people could be guilty of the crime, not just one.
Anthony M. Kennedy: --Do you accept Justice Stevens' suggestion that your position might differ from the Government here?
Gary E. Bair: I don't know that it does. I think our positions are basically the same.
David H. Souter: So... so you do think a conspiracy can generally... can be inferred as to all people in these... in the instance like this?
Gary E. Bair: In our case, absolutely, absolutely. In our case, clearly--
John Paul Stevens: But if one of them-- --But you didn't argue the... excuse me... you didn't argue the conspiracy theory in the State court, I don't think, did you?
Gary E. Bair: --Well, I think we did, Your Honor. I think we argued in the State court that because drugs can be jointly and constructively possessed, that any one, two, or three of the individuals in the car were... were guilty of this crime.
David H. Souter: If you know nothing more than what you know here... I mean, I take it that if... if it were undisputed that one of the three was a hitchhiker, you... you would not make the argument with respect to the hitchhiker?
Gary E. Bair: I think if... if it's undisputed, and of course, that's going to be a difficult situation to... to know that there's no actual connection--
David H. Souter: That's the wonderful thing about being on the Supreme Court.
Gary E. Bair: --If it's--
David H. Souter: You can make those assumptions.
Gary E. Bair: --If it's undisputed, then I think that significantly changes, because I think a lot... a core concept here is this notion of common enterprise, that when you have people in a car together, particularly a small passenger car, there's an inference, I think in this case a very strong inference, that all three of these people were engaged in a common enterprise. So--
John Paul Stevens: But do you have... do you need the-- --What if the car... what if the car included a driver and two hitchhikers and the drugs were found exactly as they were here, and there's obviously no common enterprise, would there be probable cause?
Gary E. Bair: --I guess it would be... of course, that would be a more difficult case because you had the money in the glove compartment of the car and the drugs in the backseat of the car, so that--
John Paul Stevens: I'm not sure the money really adds anything to the analysis, to tell you the truth.
Gary E. Bair: --I think it adds--
John Paul Stevens: Because there's certainly nothing illegal about carrying money in the glove compartment, where it is illegal to carry drugs in the... behind the seat... the armrest.
Gary E. Bair: --Well, certainly the money without the drugs would be a... a different case than the drugs without the money.
William H. Rehnquist: But you-- --The hitchhiker... the hitchhiker example poses a question for the arresting officer, because does he have to accept the declaration of someone that I'm just a hitchhiker here?
Gary E. Bair: No, and... and that, of course, goes back to whether it's undisputed in some way, I don't know quite how it would be undisputed. You've always got the... the officer who on the scene is making a reasonable judgement from all the facts and circumstances, and one of those is, I don't have to believe the criminal or criminals in this car. I know there are drugs in the car, we have a known crime here being committed in the presence of the officer, possession or possession with intent to distribute drugs.
John Paul Stevens: Well, I'm still curious about the answer to my question. Assume the officer did accept the truth of the representation they were two... two hitchhikers picked up at different times, and maybe he was following the car, for instance, so he knew that was true, and then there's the driver and then there are drugs in the backseat just as there are here. Would there be probable cause in that case?
Gary E. Bair: Two... two answers to that, Justice Stevens. One, of course, is you would measure the probable cause by an objective standard and not by the subjective standard of that particular police officer. The other is--
John Paul Stevens: But what is the answer?
Gary E. Bair: --The other is, it could be that--
Antonin Scalia: I thought you were going to say the two answers were yes and no. [Laughter]
Gary E. Bair: --It could be, Your Honor, that the... the driver knew the hitchhikers and that's why he picked them up. I mean, a lot of times people--
John Paul Stevens: No, no, no. I'm just assuming the only relevant facts are that it's undisputed they were two... two unrelated... they're three unrelated people, they're just entirely different backgrounds, one doesn't even speak English and one doesn't speak Spanish, but there are three of them in the car and the drugs are found exactly under the circumstances here. What I'm trying to say... if there were no conspiracy theory, would there be probable cause?
Gary E. Bair: --I think so, yes. Yes, I think there would be.
Anthony M. Kennedy: You... you have... you really have to say that based on the dead victim hypothetical that you answered earlier.
Gary E. Bair: I think so, I think so, that... that if the, again, one... the other inference among the... the... the indicators of a common enterprise would be, I think it's unusual that several people are going to be taking a chance driving around, either with evidence of a murder or evidence of a drug conspiracy. They're not simply as a matter of reasonable inferences that an officer can draw, take the chance of having innocent people along. Unless there are any further questions, I... I'd reserve the remainder of my time.
William H. Rehnquist: Very well, Mr. Bair. Mr. Srinivasan, we'll hear from you.
Sri Srinivasan: Thank you, Mr. Chief Justice, and may it please the Court: The totality of the circumstances apparent to the officer at the scene established probable cause for respondent's arrest. Of particular significance, the officer uncovered drugs that were packaged for distribution and that were concealed in the location in which they were readily discoverable by the other passengers.
Sandra Day O'Connor: Your brief reads to me... at about page 15... to suggest that you're proposing a broad rule that probable cause exists to arrest all occupants of a car anytime commercial quantities of narcotics are found in the passenger portion of the car.
Sri Srinivasan: It's... we don't intend--
Sandra Day O'Connor: Is that your position?
Sri Srinivasan: --We don't intend to suggest a broad rule, Justice O'Connor.
Sandra Day O'Connor: Do you agree that it is a totality of the circumstances test?
Sri Srinivasan: Yes, it's a totality of the circumstances test, and it will turn on contextual factors that are present in any particular case.
Anthony M. Kennedy: Well, you do say at page 15, beginning of the first full paragraph, for these reasons, the discovery of an amount of narcotics suitable for distribution in the passenger compartment supports an inference that all of the car's occupants were aware of, and hence, involved with the drugs. That's a sweeping statement.
Sri Srinivasan: Well, what... what we intend to say is that ordinarily when drugs that are packaged for distribution are found in a location in which they're readily discoverable by the other passengers, a reasonable officer can fairly conclude that there's a fair probability that each passenger is... is aware of the drugs, but of course in particular cases--
Sandra Day O'Connor: But it... it might... wouldn't different factors enter into it? Suppose it's a young child--
Sri Srinivasan: --Absolutely, Justice O'Connor.
Sandra Day O'Connor: --in the vehicle, and it's in the middle of the day and they're dropping the child off at school or something. Are you suggesting there would nonetheless be this inference and the child could be hauled up and sent to the juvenile court?
Sri Srinivasan: No. The inference is tethered to the particular facts of this case. In cases that present different facts, for example, if a child was in the car of... if, as was earlier discussed, a hitchhiker were in the car, the probable... probable cause calculus would be different. But in this case there was no reason to suspect that any of the individuals was uninvolved in the possession of the cocaine. In fact, what's particularly significant in this case in our view is the location in which the drugs were found, because they were found wedged behind the rear seat armrest, which apparently is the type of armrest that's adjustable in an up or down position. The very purpose of that type of armrest is to give the passenger an option according to his preference whether the position... the armrest in one position or the other, so it's highly--
John Paul Stevens: The only evidence that supports the notion that some were uninvolved is that as soon as one of them confessed, the police immediately dismissed the charge against the other two, and therefore abandoned the notion that it was a common enterprise.
Sri Srinivasan: --Well, I... it... there's a... I think there's a different question concerning whether there was probable cause for an arrest and the determination by an officer whether to proceed with charges. Just because the officer--
John Paul Stevens: You'd think if the... if the backseat person or whoever it was that confessed had confessed while the officer was arresting him, there would have remained the probable cause as to the other two? Could he have said, I don't believe you, I'll take all three of you in anyway?
Sri Srinivasan: --There might well have been, Justice Stevens, because an officer's not required to believe the version of events that's given to him by people on the scene. It might well be the case that they have a coordinated plan in advance to pin the blame on a particular person as opposed to the other two, and an officer can take into account the totality of circumstances in making that type of assessment.
Ruth Bader Ginsburg: May I... may I clarify whether you are indeed relying on common enterprise? I thought the view was it may or may not be a common enterprise, but here is a situation, drugs equally accessible, drugs accessible to any one of the three. We can't say whether all three or which one, so looking at the three, and we say, well, it's not more... not more likely the driver than the front seat passenger, who's there behind the money, or the backseat passenger, because any one of them could have pulled down that armrest. I thought that was your theory, not a... not necessarily a common enterprise.
Sri Srinivasan: That's correct, Justice Ginsburg. It's not necessarily a common enterprise. It could be any one of the three or it could be all of them or some combination of the three of them, and the combination of those various scenarios rose to the level of a fair probability that respondent was involved with the cocaine. And as I was... as I was saying, that's particularly the case because they were concealed behind the armrest, which is a type of instrument that affirmatively invites manipulation by a passenger, so if one of the occupants of the vehicle alone were responsible for carrying cocaine, it seems quite unlikely that he would have chosen the area behind the armrest as a place to conceal it from the other passengers.
Anthony M. Kennedy: Do... do we demand the same standard from the arresting officer as we do from the district attorney who decides whether or not to proceed to preliminary hearing?
Sri Srinivasan: The probable cause standard works the same. In both situations the question would be whether there's a fair probability. Now--
Anthony M. Kennedy: But... but do we demand a higher standard--
Sri Srinivasan: --Well, it's--
Anthony M. Kennedy: --from either of them in making that assessment?
Sri Srinivasan: --It's often the case that prosecutors will have more rigorous standards as a matter of internal... matter of internal guidelines. And for example, in the U.S. Attorney's manual, it dictates that prosecutors in the Federal system need to ensure that it's likely that they'll be able to obtain a conviction on--
David H. Souter: Well isn't... isn't that... that means the... the probable cause standard is the same, but the prosecutor has an obligation to try to find out more and get more evidence before he goes forward. Isn't that the difference?
Sri Srinivasan: --Right. The nature of the application of the probable cause standard is different in the prosecutorial stage because the prosecutor is identifying a particular offense, laying out the facts to support that offense, and the--
David H. Souter: But the... but the standard... the standard that determines the... the... the degree of likelihood of inference, that is the same standard, whether we're talking about the police officer or whether we're talking about the district attorney later?
Sri Srinivasan: --Correct. That remains constant in both scenarios.
Antonin Scalia: I... I'm not sure what you're saying. You're saying it... it can get to the jury with no more than probable cause and should not be thrown out by the court?
Sri Srinivasan: There's a different... there's a different question whether the evidence is sufficient to convict as presented by the prosecutor and whether the prosecutor has enough to go forward with the charges.
Antonin Scalia: No, but you're saying the prosecutor does not have an obligation to refrain from bringing a prosecution where he plainly on the face of it doesn't have enough evidence to convict?
Sri Srinivasan: As long as there's probable cause to go forward, the prosecutor can go forward with the charges.
William H. Rehnquist: To say plainly on the face of it is something that a... a prosecutor is seldom confronted with. I mean, you've got different people telling different stories usually and it's usually a question of who's believed.
Sri Srinivasan: That's correct, Mr. Chief Justice, and--
Antonin Scalia: Well, I'm assuming he has three people in the car and the chance for each of them is 33-1/3 percent--
Sri Srinivasan: --Well, he could go--
Antonin Scalia: --and he prosecutes one of them and he has nothing else. That's all he has, three people in the car, stuff in the back seat--
Sri Srinivasan: --Well, that's--
Antonin Scalia: --and he picks the passenger and brings a prosecution. The passenger, it could have been me, it could have been the other two, 33-1/3 percent.
Sri Srinivasan: --Well, that's... that's different from the facts of this case, but even assuming that it were an equal likelihood that each of them independently were involved in the offense, the prosecutor could go forward in that situation, but it's highly unlikely that he would go forward in that situation because... because he's unlikely to obtain to a verdict in his favor. So there's institutional incentives--
Anthony M. Kennedy: And the district court probably would not let the case go to the jury if the motion was made at the end of the prosecution's case and this was all you had?
Sri Srinivasan: --That's correct, Justice Kennedy.
Antonin Scalia: The prosecution should... the prosecutor should bring cases which clearly will not be able to go to the jury?
Sri Srinivasan: No, not should bring cases--
Antonin Scalia: May, may.
Sri Srinivasan: --May, under the Constitution.
Antonin Scalia: Okay, that's not my understanding of the prosecutor's--
Sri Srinivasan: And that's why, I think, prosecutors typically enforce upon themselves a more rigorous obligation than the probable cause standard.
Anthony M. Kennedy: --But we have no case saying that they may not proceed?
Sri Srinivasan: No, there's no case that I'm aware of that says that they can't proceed where there's probable cause.
Sandra Day O'Connor: But you just said the manual instructed them not to bring cases to trial.
Sri Srinivasan: In... in the Federal system--
Sandra Day O'Connor: Yes.
Sri Srinivasan: --there's Federal guidelines that spell out when Federal prosecutors are supposed to bring cases to trial, but I'm not aware that that's required by Federal law or by the Constitution. Each prosecutor's office might have their own--
Anthony M. Kennedy: Do you have readily at hand the... the citation to the manual?
Sri Srinivasan: --I don't... I don't have the particular provision.
William H. Rehnquist: Of course, the... the manual wouldn't in any way bind Maryland authority.
Sri Srinivasan: That's correct. Each prosecutor's office might have different standards.
William H. Rehnquist: If... if the Federal manual binds anyone.
Sri Srinivasan: Right. Well, the deficiencies in the Maryland court's probable cause analysis, we think, are particularly are apparent when one considers the implications for officers at the scene in circumstances like this case, because apparently the up-shot is that officers either could arrest no one or that they could arrest the driver alone, and the latter situation seems unsound because perhaps the least likely scenario in circumstances like this case is that... that the driver was acting alone and carrying the contraband in the car, because if the driver in fact were acting alone, one might expect that he would conceal the contraband in a location in which it was not so readily discoverable by the other passengers.
Ruth Bader Ginsburg: What about the respondent's position that your position means two innocent people may be locked up in jail, because suppose Pringle hadn't fessed up, and he exercised his right to remain silent. Then you might have a prolonged periods, assuming they couldn't make bail, three people stuck in the brig and two of them are innocent.
Sri Srinivasan: Yes, Justice Ginsburg, it's possible that innocent persons will be arrested and bound over in circumstances like in this case, but the probable cause standard accepts that possibility as the cost of ensuring the effective enforcement of the criminal laws. In fact, this Court reiterated in Wardlow recently that the probable cause standard accepts that innocent persons may be arrested on occasion. That's simply the cost of a functioning criminal justice system.
William H. Rehnquist: Thank you, Mr. Srinivasan. Ms. Forster, we'll hear from you.
Nancy S. Forster: Mr. Chief Justice, and may it please the Court: This is a unique case with highly unusual facts, and the reason it is unique is because of the facts... not because of the facts that exist so much in this case, but because of those that do not exist here. There was no testimony whatsoever in this case that Mr. Pringle had control over or knowledge of the drugs hidden in the back seat of the car--
William H. Rehnquist: Ms. Forster, when you say testimony, you're not referring to any scheduled hearing or formal hearing, are you?
Nancy S. Forster: --Well, Your Honor, what the court in Maryland reviews on appeal is the motion to suppress hearing, and at that hearing there was no evidence presented whatsoever that the officer in this case noticed any furtive movements by Mr. Pringle, any furtive gestures, that he said anything suspicious at the scene, or that he acted in any unusually nervous manner. All we have here--
Sandra Day O'Connor: Well, I thought we were considering this on the basis offered, which is the three people at 3:30 a.m. in a high crime neighborhood in a sedan where there were a certain quantity of drugs behind the armrest and money in the glove compartment.
Nancy S. Forster: --A few corrections, if I may, Justice O'Connor--
Sandra Day O'Connor: Three people in the car.
Nancy S. Forster: --This is... 3:00 a.m. is accurate, 3:16 a.m. It is in a residential area. This was not in fact a high crime area. And I think that under the totality of circumstances we have to put that in context, and the context is this, that it's 3:00 a.m. on a Saturday night with a car of three young men in their twenties in a residential area, and I think that anyone who has children of that age knows that often their Saturday night does not even begin until 10:00 or 11:00 p.m.--
William H. Rehnquist: Well, a lot of people wouldn't refer to children as being in their twenties, I think. [Laughter]
Nancy S. Forster: --Young adult children, Your Honor.
John Paul Stevens: You... you make an interesting opening statement that this is a highly unusual... we've... a lot of us read a lot of these cases. It seems to me this happens all the time, that drugs in the car, the person says, it's not mine. It seems to me that that's commonplace.
Nancy S. Forster: But what we have here with respect to Mr. Pringle is simply presence and nothing more. We have no further--
David H. Souter: But isn't there... isn't there something more than presence here? Isn't the significance... isn't the significant evidence of this case something that appears when you contrast it with Houghton from a couple of years ago? Houghton, you had evidence that the driver of the car was a recreational, a personal drug user. We don't, I think, in this society, at least certainly today, assume that everyone who is in the company of a recreational drug user is also a drug user or an accessory to the first person's drug use. Here, however, what the police officer had was evidence, not merely of the time, but of... of three people in a relatively small car with commercial quantities of drugs, an amount of money that was enough to suggest that drug dealing was going on, and I think a... an inference was possible that someone in that car was dealing in the drugs. And it seems to me that the different inference that can be drawn about the others here as distinct from the inference in the Houghton case is, most drug dealers do not go around in their place of business, the car, with people who are totally innocent of drug activity--
Nancy S. Forster: --If I--
David H. Souter: --and isn't that the basic difference between this and Houghton and doesn't that inference support... amount to probably cause?
Nancy S. Forster: --Your Honor, if I... if I may, with respect to this being packaging... the drugs packaged that is indicative of sale or for distribution, there was absolutely no evidence in this record that this was anything inconsistent with personal use.
David H. Souter: Five... five crack cocaine hits?
Nancy S. Forster: Yes, Your Honor. In fact, I think that there are a lot of crack cocaine addicts for which that is a small amount of personal use.
David H. Souter: But is-- --How about a big roll of money?
Nancy S. Forster: And, Your Honor, also, there's a problem with the record in this respect with regard to money--
David H. Souter: Well, you pointed it out, but I think it... I thought, and tell me if I'm wrong here, I thought that it was... it was... the evidence was, regardless of how he first described the quantity that he saw, I thought the evidence came out that there was 700 and some odd dollars in it, so I think the judge could infer that it was fairly... a fairly sizable roll of bills.
Nancy S. Forster: --Justice Souter, the actual amount did not come out until the trial. That never came out at the motion to suppress hearing, and in fact, the amount of money was never characterized at the motion to suppress hearing by the officer who testified, other than to say he saw the sum of money, that's all.
David H. Souter: And what is in... and it was in the glove compartment?
Nancy S. Forster: It was concealed in the glove compartment?
David H. Souter: And it was open, it wasn't in a wallet or something like that? A roll of bills.
Nancy S. Forster: We don't... we don't know. In fact, the officer who... Officer Snyder, when he testified at the motion to suppress hearing, simply said that when Mr. Parlo, the driver of the automobile, went to retrieve his license and registration from the glove box, that is when I saw the money.
David H. Souter: So it's reasonable-- --But he... he must have seen it in the form of a... a roll of bills or something, rather than, as Justice Souter said, just not in a wallet.
Nancy S. Forster: The record is unclear.
William H. Rehnquist: Well, but, I mean, you... you don't have to have been born yesterday to decide that.
Nancy S. Forster: Well, the... Your Honor, I guess the point is, is that all that was before the trial... the trial judge at the motion to suppress hearing... there was never any characterization of the denomination, the amount, nothing, just the only thing that was said was the money.
David H. Souter: Do you have a roll of bills exposed in your glove compartment?
Nancy S. Forster: At times I do, Your Honor.
David H. Souter: You do?
Nancy S. Forster: Yes.
David H. Souter: You better be careful if you do. [Laughter]
Nancy S. Forster: I might also point out that at the actual trial, the expert who did testify for the State with regard to the... whether or not this was an intent to distribute... testified that without Mr. Pringle's confession and this statement, he could not in fact say that this was consistent with an intent to distribute based solely--
Ruth Bader Ginsburg: So it was at least possession. So would you concede that a crime... in the officer's presence there was evidence of the commission of a crime?
Nancy S. Forster: --Yes.
Ruth Bader Ginsburg: Then... so the officer says, I know that a crime has been committed. In the whole world there are only three possible people who could do it. What instruction would you give to the officer on the scene who knows that a crime has been committed, there are three possible people, but he can't say which? Is it the answer that he can make no arrest?
Nancy S. Forster: No, that's not the answer.
Ruth Bader Ginsburg: What arrest can he make?
Nancy S. Forster: Justice Ginsburg, in this case, the officer could arrest Mr. Parlo, the driver of the automobile, because I think it is universally accepted that we can impute the driver owner of an automobile with the knowledge that he knows what is in his car and he has exclusive control over that which is in his car. So the officer here should have arrested Mr. Parlo.
Ruth Bader Ginsburg: And no one else?
Nancy S. Forster: Your Honor, I would suggest that perhaps... I mean, and of course, this is not the issue before the Court, that perhaps because of Mr. Smith, the backseat occupant, may also have been arrested given that the nature of an armrest is not really a normal repository that one would place personal items in--
Ruth Bader Ginsburg: So maybe... definitely the driver, maybe the backseat passenger--
Nancy S. Forster: --Maybe Mr. Smith.
Ruth Bader Ginsburg: --but not the one who in fact--
Nancy S. Forster: But definitely--
Ruth Bader Ginsburg: --who in fact committed the crime.
Nancy S. Forster: --Definitely not Mr. Pringle, but of course, if we're going to use Mr. Pringle's confession in determining in hindsight, we need not have--
Ruth Bader Ginsburg: If this were... if this were a bus or a tavern or a theater or some of the examples, then it certainly would unreasonable to assume that the front seat passenger could reach back to the last row of the theater. But here, this was a small car. It isn't hard for somebody in the front seat to turn around and push down the armrest.
Nancy S. Forster: --Justice Ginsburg, I agree with that... that perhaps it would not be difficult, given the compact nature of this car. However, there was no testimony that in fact that anyone saw Mr. Pringle do that, number one, and number two--
David H. Souter: Well, that's because they... they didn't have a buy committed in the presence of the officer at the scene.
Nancy S. Forster: --Well, I... I understand that, Your Honor.
David H. Souter: I mean, I don't know why that counts against--
Nancy S. Forster: Well, my second response would be this, that I think that it would be highly unreasonable that Mr. Smith, the backseat passenger, would allow Mr. Pringle to turn around and store the drugs in the armrest right next to him.
William H. Rehnquist: --Why? Ms. Forster, the Maryland Court of Appeals, which ruled in your favor, says, during the search Officer Snyder seized $763 from the glove compartment, so they are... they accepted that as a fact.
Nancy S. Forster: Your Honor, the Maryland... with all due respect, the Maryland Court of Appeals made a mistake in this case because what they said in their opinion--
William H. Rehnquist: Well, but no, we take the facts as the lower court found them. I mean, I don't think it will do to say that the court of appeals is wrong on the facts.
Nancy S. Forster: --Your Honor, what the court of appeals incorrectly did in this case was... and they dropped a footnote to suggest that it was unclear to them whether or not there was a separate motion to suppress hearing or whether there was a combined motion to suppress trial proceeding. In fact, that's incorrect. There was a separate motion to suppress hearing.
William H. Rehnquist: But the... but they nonetheless say that Officer Snyder seized $763.
Nancy S. Forster: That's true, Your Honor, and for purposes of Mr. Pringle's position, the fact that that money is concealed, really it makes no difference the amount. However, if the... as the petitioner and the U.S. Solicitor find the amount to be significant, I think we should have a clearer record.
Stephen G. Breyer: Why... why did you say the driver, I mean, on your theory? I think it would be harder for the driver who's driving along to put the bags back in the backseat than it would be for the passengers.
Nancy S. Forster: Well, Justice Breyer, that assumes that the driver did not put it there before he picked up his passengers.
Stephen G. Breyer: Well, if he put it there before, wouldn't they all know it was there?
Nancy S. Forster: I don't think so, Your Honor. If it's... if it's sandwiched between the armrest as it's pushed up against the seat, no, I don't.
Ruth Bader Ginsburg: But the driver consented to have the car searched, so one might think, my goodness, if he knew there were drugs there, why did he say yes when he could have said no?
Nancy S. Forster: Justice Ginsburg, I can tell you as a criminal defense lawyer that defendants consent all the time when they have a car full of drugs and they know the drugs are there. It's not unusual and it--
Ruth Bader Ginsburg: This is not like the... one of the cases that you relied on is the Di Re case. Your answer to me was, arrest the driver. There, the informer had fingered the driver, so the police knew that they had the right man when they arrested the driver. Here, it isn't at all like Di Re because the driver may or may not have been the right person.
Nancy S. Forster: --Except that... how this case is similar to Di Re is that in Di Re this Court held that if the act... the criminal activity, the ongoing criminal activity, is not visible to the occupants, the mere presence is not enough on which to have probable cause to arrest. And here we have concealed drugs and nothing more than Mr. Pringle's presence in the front seat.
Ruth Bader Ginsburg: But there... there's... there's another difference. The drugs are not locked up in the trunk. They are at a place where the backseat person could push it down. There wasn't a serious attempt to hide those drugs securely.
Nancy S. Forster: Yes, Justice Ginsburg, I agree with that. But however, that would only point more closely to Mr. Smith, the backseat person sitting directly next to the armrest, not to Mr. Pringle, the front seat passenger.
David H. Souter: Well, except if... if you accept the proposition that the... that there probably was a roll of bills visible in the glove compartment, Mr. Pringle was within easy reach, not even arm's reach of the rolled bills.
Nancy S. Forster: Well, Justice Souter, the... the problem with that, of course, it's pure speculation, but we don't even know if this glove compartment was locked or unlocked. What we know is that it was opened by the driver at the time he was asked to retrieve his license and registration. Whether he had to unlock that glove compartment is not clear at all for the record.
David H. Souter: Well, we... we don't know that and we don't know whether the armrest had come down during the time the backseat passenger was there. There are lots of things at a probable cause stage that one does not know, but the very fact... if... if we're going to talk... if we're going to find it significant that something is within reach of one of the passengers or not, I would have supposed that for probable cause purposes, the fact that the money was in reach was a relevant fact.
Nancy S. Forster: But, Your Honor, I... I think that if we want to speculate that perhaps then we could say that that would be enough, but probable cause requires far more than speculation. It requires a fair probability, at least of complicity, and we simply don't have the facts in this case that would support that fair probability with respect to Mr. Pringle, because all the record shows is that Mr. Pringle was present in a car where drugs were found hidden. And if I may address the common enterprise theory that both the petitioner and the U.S. Solicitor relies on in this case, the problem with the common enterprise theory is that the cases that they cite in support of that involved ongoing criminal activity that was conducted in plain view. You have the Ulster County case, where the Court found that the weapons, one of which was described as as large as a cannon, that was in plain view of all of the occupants of the car. And in the Houghton case... so it was reasonable in the Ulster County case, or if that had in fact been the issue in that case, which it was not--
Stephen G. Breyer: Those I just think that... look, it just doesn't strike me as plausible that when you have three people in a car, one of them would stuff some drugs behind an armrest where they're very easy to find, unless he thought the other two were in on it, I mean, unless you thought the other two at least didn't care, and if they didn't care they're out there transporting the drugs with them.
Nancy S. Forster: --Well--
Stephen G. Breyer: So... so how... I don't even know, I mean, what I'm struggling for is, that seems like a reasonable inference so how... how do I know, I mean, I'm making this kind of inference. How do I know whether I should or not?
Nancy S. Forster: --Justice Breyer, the inference that the backseat passenger may stuff the drugs in the armrest--
Stephen G. Breyer: Any of the three, I mean, any of them might, and why would they? Why... you'd have to be crazy to be stuffing crack into a car like that without thinking your friends are... have... don't give a damn at the very least--
Nancy S. Forster: --But certainly--
Stephen G. Breyer: --and probably are in on it. But certainly, I think that even if they... he does that in the view of Mr. Pringle, that... so that Mr. Pringle has knowledge that the drugs were shoved in the armrest... that certainly does not also go to the next level, which is that Mr. Pringle possesses those drugs. I may see one... a passenger-- --Would... would... would the... the officer at that point then be able to say, ah, but, in any case I could arrest the other two because they're harboring a felon? In other words, you said that you could maybe arrest the ones who sitting next to the... the other, since the drugs are barely concealed?
Nancy S. Forster: --Well, no, Your Honor, I... perhaps I... I was not clear.
Stephen G. Breyer: Here's what she's thinking, and there might be a million different crimes. You say to the front seat passenger, everything's the same, but you say to the front seat passenger, Mr. Front Seat Passenger, did you know that there were drugs down there in the armrest? And he says yes, and that's all he says. I would imagine he could be arrested then, couldn't he?
Nancy S. Forster: No, Your Honor, I--
Stephen G. Breyer: You couldn't arrest him then?
Nancy S. Forster: --I don't think he could be arrested.
Stephen G. Breyer: For transporting the drugs or helping to transport them or being an accessory or doing something?
Nancy S. Forster: Well, certainly if he's the front seat passenger and not the driver he's... he's along for the ride. He's not necessarily the person transporting--
Stephen G. Breyer: Well, he doesn't say anything. We don't know anything about it. He just says, sure I knew there were drugs back there, that's all.
Nancy S. Forster: --Under those circumstances, Your Honor, I think you'd have a much closer case.
Stephen G. Breyer: No, no, but... but no, look, either there is a crime of being in a car knowing that or there isn't. Is there or not? I don't know.
Nancy S. Forster: Well, the crime of possession requires not just knowledge, but it also requires the intent to exercise dominion and control over the drug.
Stephen G. Breyer: All right, so... so you'd have to then make an inference that a person who says, yes, I knew the drugs where there, was also going to help later on.
Nancy S. Forster: Yes. That would--
Stephen G. Breyer: All right. But that's--
Nancy S. Forster: --there would have to be some reasonable inference--
Stephen G. Breyer: --And you think that's not reasonable either?
Nancy S. Forster: --I think it is not just on those facts alone.
Stephen G. Breyer: Okay. Am I right in assuming that the other two people in the car didn't testify at the suppression hearing?
Nancy S. Forster: No, they did not, Your Honor.
Stephen G. Breyer: Or at the trial?
Nancy S. Forster: No, Your Honor, nor at the trial. Only Officer Snyder testified at the motion to suppress hearing for the State. If I may go back to the common enterprise theory, as I said, the cases that the State and the U.S. Solicitor rely on here involved criminal activity conducted in plain view, and... which, from which an officer could reasonably infer, I think, a common nefarious enterprise. We have a... less than one gram of cocaine in this case that is hidden, hidden, concealed in the backseat armrest, and secondly, again, with respect to this being a commercial quantity of drugs, there is simply nothing in the record that supports that. This was--
Sandra Day O'Connor: Well, it was in separate little packets, right?
Nancy S. Forster: --Yes, it was, but that, again--
Sandra Day O'Connor: A kind that people would buy for a single dose?
Nancy S. Forster: --That, again, your Honor, is not inconsistent with personal use, and certainly I should think that if this police--
Sandra Day O'Connor: Yeah, and one of their charges was possession, was it not? I mean, we're not dealing only with intent to distribute but--
Nancy S. Forster: --That... that is correct. The charge was possession--
Sandra Day O'Connor: --Pure possession is what--
Nancy S. Forster: --and possession with intent.
William H. Rehnquist: --Well, to say it's not inconsistent with personal use, I don't think gets your client totally off the hook, because something can be both consistent with personal use and consistent with commercial intent. You know, something can... you can infer both ways.
Nancy S. Forster: However, Justice Rehnquist, here this amount is not indicative of an operation that requires the participation of more than one person. This is an amount that, if it's for sale, it's for sale--
William H. Rehnquist: But... but how about the combination of that with the... with the $763 roll in the glove compartment?
Nancy S. Forster: --Well, Your Honor, I think then it would still require speculation on the part of this police officer to assume that one was connected to the other. I think that the only common enterprise that reasonably could have been inferred from the facts of this case is a common enterprise to go from one destination to another and nothing more than that, and given the concealed nature of the drugs in this case, the lack of any suspicious activities on Mr. Pringle's part, and the lack of, I think, any reasonable inference pointing to complicity that he possessed the hidden drugs, the Maryland Court of Appeals in this case correctly held that there was no probable cause to arrest Mr. Pringle, and this ruling should be affirmed.
William H. Rehnquist: Thank you, Ms. Forster.
Nancy S. Forster: Thank you.
William H. Rehnquist: Mr. Bair, you have 4 minutes remaining.
Gary E. Bair: Thank you, Your Honor. I just wanted to first clarify any record inconsistencies or... or clarifications that might be in order. I believe that the court of appeals' opinion, which is at appendix page 3A to the petition for cert, makes very clear that the court of appeals, the highest court in Maryland, construed the record as the officer seeing a large amount of money rolled up in the glove compartment, and it totaled $763. That is clearly stated in the court of appeals' opinion, and I would direct the Court's attention to the trial transcripts at pages 83 to 84. It is not in the joint appendix but it is in the record in the case, the trial transcript pages 83 to 84 from the trial on April 10th of 2000. The police officer who arrested respondent testified at the trial that he saw a large roll of money in the glove compartment and that it totaled $763, so clearly there is record support and the court of appeals so found. With regard to the glove compartment being closed or locked, there's nothing in the record ever indicating that the glove compartment was locked. I think the only natural inference from this record is that it was closed at the time the car was stopped. The officer saw the drug... excuse me... saw the money in the glove compartment when the driver went to retrieve his vehicle registration, and then after the officer obtained consent to search the car, he then opened the glove compartment again and seized the money. I think it's ironic that the rule that is being suggested by respondent is the bright line rule that the driver should always be arrested. I think that's absolutely inconsistent with this Court's Fourth Amendment law. In closing, unless the Court has any questions--
Stephen G. Breyer: Yeah, I do have one--
Gary E. Bair: --Yes.
Stephen G. Breyer: --which is, I think she said, look, there are three possible inferences. One is that the passenger had nothing to do with it, didn't know about it. Two is, everybody knew about it but that's all. And three, they knew about it and wanted to help sell the drugs. All right. Now, she says, one plus two are so great that three isn't probable cause, but about, at least two.
Gary E. Bair: Your Honor, I think all... the nature of probable cause is that the officer is entitled to accept under the totality of the facts any of those inferences. I think any... any--
Stephen G. Breyer: Two... two isn't a crime, I mean, if they just all knew about it?
Gary E. Bair: --Under Maryland law, they have to have an intent to exercise control over the drugs. If they simply knew about it, that would not be enough for a conviction, but I think--
Stephen G. Breyer: It has to be all three... it has to be three is great enough, so despite one plus two... okay.
Gary E. Bair: --Yes, but I think for probable cause purposes, clearly that would be sufficient. Thank you, Your Honor.
William H. Rehnquist: Thank you, Mr. Bair. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at 10 o'clock.