Warren E. Burger: We'll hear arguments next in Oliver against United States and the consolidated case. Mr. Haddad, I think you may proceed whenever you are ready.
Frank E. Haddad, Jr.: Mr. Chief Justice, and may it please the Court: The state police without a warrant, probable cause or exigent circumstances searched the Petitioner Oliver's farm and found marijuana growing in a corn field. Oliver moved to suppress the evidence in the District Court. That motion was sustained. A panel of the Sixth Circuit affirmed. On petition for rehearing en band the Sixth Circuit held that the per se open fields doctrine permitted the state police to conduct the open field search, and that holding by the Sixth Circuit was contrary to the position of seven other circuits who have rejected the per se open fields doctrine as well as most of other state courts-- The issue presented in this case is whether the Court's decision in Katz decided in 1967 holding that the Fourth Amendment protects an individual if he has an actual and a reasonable expectation of privacy modified the per se open fields doctrine to the extent of regarding a search warrant or requiring a search warrant for the search of a highly secluded field from whence the public is excluded and where a reasonable expectation of privacy is shown to exist on behalf of the Petitioner. The facts in this case are that a police officer, a Kentucky State Police officer, received an anonymous tip and based on that anonymous tip, the anonymous tip being that these was marijuana being grown on the Oliver farm. Based on that tip he and another police officer without a search warrant and without probable cause and without having any exigent circumstances proceeded to Mr. Oliver's farm. Mr. Oliver's farm has proved to have been 22 miles from the nearest town in a very, very remote area of Kentucky. To get to the field that they ultimately found the marijuana growing in it was necessary for the police officers to enter Mr. Oliver's property, drive several hundred yards to his house and then continue driving nearly another mile into the property. During this travel according to Mr. Oliver and there is some dispute about the number, but there were a number of posted No Trespassing signs. They traveled on beyond the house as I say for another mile when they came upon a locked gate blocking the roadway. This locked gate also had on it a No Trespassing sign. The officers parked their car not being able to go beyond that gate in the car and walked around the gate. This area was fenced within the farm and the proof is that the farm had boundary fences around it as well. After going past this gate or walking around this gate they proceeded about a quarter of a mile on when someone yelled to them, "Come back. " "There is no hunting allowed in this property. " The officers walked back to the barn on the camp or where this person was standing and they could not find the person that they had seen who yelled at them. So they proceeded on for another approximate quarter of a mile until they get into the property to the field approximately a mile and a half. They traveled on that last journey, that last quarter mile journey, they travelled apart of that way through very dense underbrush and very dense wooded area. They finally came upon the corn field and they could only when they got to that corn field observe that marijuana was growing in the corn field. They could not see that marijuana from any other position until they had driven back approximately a mile and a half and stood actually on the field or in the field.
Harry A. Blackmun: That is they could not see. I suppose somebody in a helicopter could.
Frank E. Haddad, Jr.: Yes, they could. The situation that we have here is that the officers after finding this marijuana they came back out and while traveling on the road they saw Mr. Oliver and ultimately arrested him and charged him with manufacturing and growing marijuana in violation of the federal statute that was involved. The holding in Katz and many cases before the Katz case was that searches conducted outside the judicial process without prior approval by a magistrate were per se unreasonable subject to a few well delineated exceptions. The government in this case contends that the open fields doctrine is the exception in this case, that this search should be held legal. Our contention is that since Oliver excluded the public... the distinctions we will make in a moment... this was not an open field since he had excluded the public and took such precautions as I have outlined to exclude everyone from it. The definition of--
Harry A. Blackmun: So you are not asking us to overrule the Hester case then?
Frank E. Haddad, Jr.: --No, sir. The definition of open fields has changed through the years. In Hester the Court held that the police could search in an area from which they are not excluded. There are other views of Hester holding that it is a per se open fields doctrine.
William H. Rehnquist: Do we know that much about the facts in Hester, Mr. Haddad? It is just that very kind of conclusory statement in Justice Holmes' opinion.
Frank E. Haddad, Jr.: Yes, sir. I think that you are correct in that, but there was a holding there or some holding to the effect that the defendant himself is who led the police to the evidence by passing the jugs of whiskey to the other person that was on the property at the time which the officers were able to observe. They also held in that case that there were other people who came onto and off of the property even while the officers were there and after the arrest had been made. So we next come to the Olmstead case about four years later when there was a holding that has been referred to as the per se locational theory, and that was that anything outside of the curtilage was considered to be an open field and no warrant was needed. In the Katz decision this Court rejected the Olmstead's per se theory of the open field doctrine, and in more recent cases since Katz the holding has been that a field is not open if the public was excluded. In the Air Pollution Variance Board v. Western Alfalfa case decided in 1974 the Court analyzed that a federal agent can trespass onto an area where the public is not excluded and view that which was exposed to the public without violating the Fourth Amendment. So they held that if the public was not excluded the area was an open field, and in that case they held, which was an OSHA warrantless search case, they held that the search was okay and legal. In Marshall v. Barlow a few years later, some four years later, this Court using the same analysis held that without a warrant the government agent is in no better position that a member of the public and observations capable of being made by the public can be made by the agent without a warrant. In that case the Court held as unconstitutional the authorization under the OSHA Act or search without a warrant because it permitted a warrantless government agent to search in an area where the public was excluded. So we get into that fine distinction that this Court has made that if the public was excluded the area is not an open field. If the area is not an open field then the Fourth Amendment applies. If the Fourth Amendment applies then we must use the two-part Katz test to determine if the Fourth Amendment has been violated. When we look at the first part of the Katz test which is was there an expectation of privacy we find in this particular case that this man had his property fenced. He had it posted throughout with No Trespassing signs. He had a gate to the road which had a chain and lock on it. There was a travel back into the farm approximately a mile and a half into a secluded area through wooded areas to find the marijuana growing in the corn field. There was also the additional, which the Sixth Circuit dissenting opinion put a lot of weight upon... There was also the additional fact that somebody on the property had hollered to the police officers that no hunting was allowed and to come back or to come back, no hunting was allowed. So when we apply that and as the District Court judge said in his memorandum... opinion, short of guards at the entrance it is difficult to see what else the defendant could have done to assert his privacy interest in the property--
William H. Rehnquist: Mr. Haddad, perhaps this varies from place to place in the country, but wouldn't you agree that putting a Nc Hunting sign on premises does not necessarily mean that the owner wishes to exclude people who do not intend to hunt?
Frank E. Haddad, Jr.: --This was a No Trespassing signs throughout here. It is the same I would imagine as No Hunting, but it said No Trespassing.
Speaker: It said No Trespassing?
Frank E. Haddad, Jr.: Yes, sir. All of them said No Trespassing.
William H. Rehnquist: Well, then what comfort do you draw from the additional conversation about hunting?
Frank E. Haddad, Jr.: None except that I felt that... The Sixth Circuit dissenting opinion felt that that was something added to show that there was an expectation of privacy when someone on the property yelled, "Come back. " "There is no hunting allowed on the property. "
Byron R. White: Well, that might out the other way. It might indicate to people if you are not hunting it is okay.
Frank E. Haddad, Jr.: I do not think so, not with the clear delineation of all of these signs on the property and particularly with one on that locked gate that said No Trespassing. The government really does not realize the significance of a No Trespassing sign in that rural area of Kentucky. It means just what it says, no trespassing, and the society in the second part of the Katz test was was this expectation of privacy one that society is prepared to accept as reasonable.
Byron R. White: Would you say that that is true? Suppose the officers had come up here to this sign and No Trespassing but they see some marijuana growing right inside the fence.
Frank E. Haddad, Jr.: That would be plain view, Your Honor, and that would be an exception.
Byron R. White: Well, I know but plain view never lets you into a private place.
Frank E. Haddad, Jr.: It would in this instance I am afraid.
Byron R. White: Why? There is a No Trespassing sign. Go get a warrant.
Frank E. Haddad, Jr.: But if it comes--
Byron R. White: You cannot stand outside a house and look through the window and see contraband or guns lying on the table and go in the house without a warrant.
Frank E. Haddad, Jr.: --I agree with Your Honor, but if this were in plain view then the open fields--
Byron R. White: Well, the gun would be in plain view through the window in a house. Can you enter the house without a warrant?
Frank E. Haddad, Jr.: --No, sir. But the point is that if this were in a place where the public could observe it then it is an open field. If it was a place where the public could observe it without trespassing in this situation then it would be--
Byron R. White: Then they may trespass?
Frank E. Haddad, Jr.: --Well, it is an exception. It is another exception to the rule. It does not permit the trespassing. It permits--
Byron R. White: Well, at least then the sign does not mean what it says.
Frank E. Haddad, Jr.: --No, sir. I disagree, sir. The sign means exactly what it says, no trespassing. If you see something... You could not see it in this case. Everybody agrees and the government stipulates--
Byron R. White: Well, if you are relying upon the sign to give you an expectation of privacy apparently it does not all the time.
Frank E. Haddad, Jr.: --I am not depending upon the sign alone as the government would have the Court believe in their brief. We are depending upon all of these circumstances in this particular case--
William H. Rehnquist: What you are saying is that a field can have some expectation of privacy, but in no event would it acquire the expectation of privacy that you would have in a house because of the different treatment of what is seen in plain view from outside the field.
Frank E. Haddad, Jr.: --Exactly. I think that is where your Hester case comes back into play, and it would permit the search if it was visible to the public or from an area where the public was. Then whether there is trespassing signs or not you could go onto the property and seize that in the plain view doctrine.
Sandra Day O'Connor: What difference does it make that this could have been seen from the air?
Frank E. Haddad, Jr.: Well, it does not make any difference at all in this case because if it can be seen and the air searches have been held legal because the air is a place where the public is expected to be traveling in the air over commercial planes or in private planes or in anything else. That would be permissible.
Warren E. Burger: What about a police helicopter looking for marijuana?
Frank E. Haddad, Jr.: It would be permissible and the cases have so held, sir.
Harry A. Blackmun: Mr. Haddad, is the field on the Cumberland River?
Frank E. Haddad, Jr.: Yes, sir.
Harry A. Blackmun: And the Cumberland is navigable?
Frank E. Haddad, Jr.: The Cumberland is navigable but there was a stipulation entered into this record by the government and the defense attorney that this property, these particular fields could not be observed from the Cumberland River. There is a stipulation in the record to that effect.
Byron R. White: Here is a police helicopter flying around over this corn field or over this marijuana field in which corn was growing, one or the other-- [Laughter] The police see marijuana growing. They then radio down to the police car that is stopped right by the No Trespassing sign. May the police then go right on into the corn field?
Frank E. Haddad, Jr.: Well, I think they would have right at that point under the open fields doctrine because any member of the public could do the same thing, could fly around in the air in a helicopter and observe that.
Byron R. White: Well, there is not much of an expectation of privacy then is there in that corn field?
Frank E. Haddad, Jr.: There is for people who walk onto the ground where there are No Trespassing signs and all these other things. The second part of the Katz test is whether or not society... the expectation of privacy is one that society is prepared to accept as reasonable. We say that it is. Certainly society is ready to accept as reasonable a farmer's right to exclude other people from his property, and certainly there could be a valid presumption that a reasonable presumption exists that society would not favor warrantless government intrusions. Thank you.
Warren E. Burger: Ms. Zeegers.
Donna L. Zeegers: Mr. Chief Justice, and may it please the Court: In State of Maine v. Richard Thornton the area in question was not as a matter of fact akin to an open field. The area by its very nature of being a heavily wooded area was not akin to an open field. It was not a field for one thing, and it was not open in any sense of the word. If you will look at the information in this case starting from the affidavit by the police officer after he had made his warrantless search they made reference to an informant here who had told about marijuana growing in back of someone's trailer home in a heavily wooded area. The police officer said in the affidavit as well that he went to the heavily wooded area and saw what he wanted to see and then asked the magistrate to give him a search warrant to search the heavily wooded area. Also at the suppression hearing it is very clear from the record that the area searched was in fact woods and not fields. There were photographs. An aerial photograph in particular showed that the complete property except for some very small patches, smaller than this table, were in fact open. The rest of it was a completely heavily wooded area. The police themselves made testimony that the area that they searched was heavily wooded. Mrs. Thornton's testimony, the defendant's wife's testimony, was also that the area was heavily wooded. Therefore, the Supreme Judicial Court of Maine should be free as a matter of fact to determine that the nature of the particular area was not an open field. It was in fact closed woods and secluded woods.
Warren E. Burger: Then let me take you back to the questions we were putting to your colleague about a helicopter or a light plane flying over the area taking pictures and then presenting the pictures to a magistrate with enlargements showing that there were marijuana plants and getting a warrant. What would you say about that?
Donna L. Zeegers: Yes. Mr. Chief Justice, my feeling on that would be that if they made an aerial search that may have been enough to establish probable cause to get a search warrant. Well, in my situation it may have been difficult to in fact observe marijuana growing because the patches were so small in this heavily wooded area. Perhaps if they had binoculars they might have been able to see them. But if it were a large area and they were easily seen, then that would have been enough to establish probable cause. But in fact there would be not a privacy violation from the air to the extent of the privacy violation of police actually coming onto your property. In terms of the individual's expectations the individual expects that people are not going to come onto his private property, but the individual does not have as great an expectation that people may not see things from the air. It is important to note that there is no definition of open field in the Hester case, and I think because of that Maine certainly should be free to determine whether or not an area searched is an open field or it is not an open field. It is important to note also that the Maine court never rejected the open fields doctrine nor did they reject Hester. In fact, they have applied the open fields doctrine in cases in Maine and they cited three or four cases in the opinion where the open fields doctrine had been applied stating--
William H. Rehnquist: You are not suggesting, Ms. Zeegler, that the Maine Supreme Judicial Court decided this case wholly on a state law ground.
Donna L. Zeegers: --Well, Mr. Justice Rehnquist, I do feel that there is adequate and independent state grounds for this decision, and the reason that I am saying that is because the State of Maine had to talk about federal cases because they had to correct the erroneous assumptions of Petitioner in the case regarding the application of Katz and Hester to this case.
William H. Rehnquist: If you would look at pages A-12, A-13, A-14 in the Petition where you set out the opinion of the Supreme Court of Maine, when they are talking about expectation of privacy they first talk about Hester and Katz and then they go on and say the Maine cases are in accord. Now that sounds to me as though they are certainly primarily resting it on federal constitutional grounds.
Donna L. Zeegers: Well, again, Your Honor, it is my position that the court had to discuss Hester and Katz because those were the cases that were raised by the Petitioner on appeal so they had to discuss them, but then they said we are in accord in determining whether or not there was a search. Then the court cited 18 Maine cases to support that decision of whether or not there was a search. Therefore, the federal cases if they were used other than just to correct their assumptions they were used only as guidance in Maine similarly for adopting the--
Sandra Day O'Connor: Weren't the Maine cases in turn relying on federal law?
Donna L. Zeegers: --It is my position that some of the cases did cite Katz but not all of them, and it is very clear from the face of the opinion that the court did adopt its own version of a search and did--
Byron R. White: Well, of course, all we can do here is decide the federal question.
Donna L. Zeegers: --That is right.
Byron R. White: If you are correct that the decision below rested as well on Maine, the ground rule would still prevail.
Donna L. Zeegers: That is correct.
Byron R. White: On remand.
Donna L. Zeegers: Yes, sure. In terms of the Maine Supreme Judicial Court's holding on the applicability of the open fields doctrine that is completely in accord with its own prior decisions and with decisions of this Court. The two factual circumstances which must be considered in Maine before the open fields doctrine applies are the openness with which the activity is pursued, whether the activity is open and patent. Number two, the lawfulness--
Thurgood Marshall: How may trees do you need to get rid of the open field?
Donna L. Zeegers: --Well, I think certainly in this case we had no field at all. There were only trees on this property, and it is significant to note that nobody could have seen these tiny patches in amongst the fields from any other land other than the defendant's land. They could also not been seen from the defendant's driveway, from the defendant's house, from neighboring land or from the road.
Thurgood Marshall: So you do not want it to apply to anybody but a field of this type?
Donna L. Zeegers: I am sorry. I did not hear you.
Thurgood Marshall: I still do not know what field this is. I do not know how many trees are there.
Donna L. Zeegers: How many trees are there? There are 38 acres of trees in this case.
Thurgood Marshall: How close are the trees?
Donna L. Zeegers: They were right next to the trees. The little patches were right next to the trees. The trees completely surrounded them.
Thurgood Marshall: But you could see them.
Donna L. Zeegers: You could see them only when you got onto the land. You could not see them from neighboring land.
Thurgood Marshall: Not with good binoculars.
Donna L. Zeegers: Not with good binoculars even.
Thurgood Marshall: Is that agreed by both sides?
Donna L. Zeegers: That particular issue has not really been addressed. I have been on the property myself and I could tell you that, but that was never raised in the lower court. In terms of the other factual aspect for the applicability of the open fields doctrine was the lawfulness of the officers' presence during their observation of what is open and patent, whether the police have as much right to be in a position of observation as the defendant or the public and whether the permission was given or whether the area was exposed to public view. It is important to note that Petitioner incorrectly cites the holdings on this issue throughout its brief and then uses that holding as a foundation for saying that the court used only a trespass theory in coming to its opinion. That, of course, is not the case. This applicability of the open fields doctrine is completely in accord with the Air Pollution Variance Board case where the open fields doctrine was applied to an area that was visible to the public and from which the public was not excluded. The visibility of the public standard in Air Pollution is as same as the openness standard in Maine v. Thornton.
Byron R. White: Can I put the same question I put to your friend in the other case? Suppose an inspection of the property from a helicopter and they got down low enough to see through these trees and they saw marijuana. Could they radio out to a police car at the edge of the property and could the officers in the car then walk onto the property and inspect further?
Donna L. Zeegers: Well, I think the threshold question there would be whether or not there was a search. If the--
Byron R. White: Well, that is what I am asking.
Donna L. Zeegers: --Yes. If the air craft was so low as to violate their privacy and--
Byron R. White: Well, suppose it wasn't.
Donna L. Zeegers: --Suppose it was not? Then it would be held not to be a search and they could have enough probable cause--
Byron R. White: Well, why could the officers nevertheless enter the property?
Donna L. Zeegers: --They could not enter the property. What they could do is get probable cause and get a search warrant.
Byron R. White: Well, I am asking you could the officers at the edge of the property when they received the information from the helicopter could the officers then enter the property without a warrant?
Donna L. Zeegers: No, Your Honor. I do not believe so because there would be no exception to the warrant requirement in that situation. Viewing property from the air only can establish probable cause.
Byron R. White: I thought that what privacy there is has already disappeared. As a matter of fact there was not any privacy from the police. The police would already know exactly what is on the property. Why shouldn't it be considered an open field then?
Donna L. Zeegers: Because the... Well, number one, the area was not an open field. The state court addressed that.
Warren E. Burger: But it is an open field when a helicopter takes a picture or observes it and concludes that that is marijuana. Is it not then an open field?
Donna L. Zeegers: Well, in terms of what the... The openness of course, has to be the key here, and in Maine they say that the area has to be open and because they see it does not mean that it is open.
William H. Rehnquist: That pretty well leaves out the whole State of Maine doesn't it? [Laughter]
Donna L. Zeegers: That is right. It does, Your Honor. I would like to reserve the rest of my time for rebuttal. Thank you.
Warren E. Burger: Very well.
Harry A. Blackmun: Before you sit down, could I ask you are you familiar with Mr. Haddad's case in Kentucky?
Donna L. Zeegers: Yes.
Harry A. Blackmun: Do you think your facts are a little weaker than his facts?
Donna L. Zeegers: Well, I think that our facts are a little bit different in terms of our area being a completely wooded area. I think our facts are stronger in this situation. We did not have a gravel road that the police went onto so I think our facts are stronger in that situation. We did not have a locked gate as Oliver did have so I think they balance each other out.
Speaker: Thank you.
Warren E. Burger: Mr. Moss.
Wayne S. Moss: Mr. Chief Justice, and may it please the Court: Fourth Amendment protection does not apply to Mr. Thornton's woods because any subjected expectation of privacy he entertained in his woods was unreasonable as a matter of Fourth Amendment law. Subjected expectation may have been rational as a matter of property law, but the Fourth Amendment does not protect property rights. The Fourth Amendment protects people from unreasonable governmental searches and seizures.
Harry A. Blackmun: Do you really believe that?
Wayne S. Moss: Yes, I do.
Harry A. Blackmun: Of course, the court said it.
Wayne S. Moss: Yes, we do believe that that the Fourth Amendment protects persons, houses, papers and effects from unreasonable governmental searches and seizures.
Harry A. Blackmun: Well, that sounds like some property to me. I say, when you name the four things some of them are property rights.
Wayne S. Moss: But the intent here is to protect an underlying core zone of privacy which is essential for the individual to enjoy some fundamental level of freedom in our society.
William H. Rehnquist: But don't you think that there is substantial property law involved in determining whether there is this expectation of privacy or not?
Wayne S. Moss: There can be property law involved. In a property right in excluding others there is a privacy interest that adheres in that property right in excluding others. But the primary purpose of the Fourth Amendment though is not to protect that property right but to protect a core zone of privacy. The framers put forth certain examples as to what would constitute that core zone of privacy and they said persons, house, papers and effects, and we contend that or agree that it could also include other places which a person personalizes by his activity by construction and use to make like a home. This core zone of privacy, however, would--
Sandra Day O'Connor: But no yard or other adjacent area could in your view ever be made so as to invoke Fourth Amendment concerns?
Wayne S. Moss: --There could be a buffer zone around the house, and in suburban and urban areas there very well may be a buffer zone around the house to which Fourth Amendment protections would apply in order to preserve the integrity and security of people within the house itself.
Sandra Day O'Connor: But no other part of a field or a farm or a piece of property in your view?
Wayne S. Moss: Yes. That is our position. So that--
Byron R. White: You say that the entry is legal?
Wayne S. Moss: --The entry here in this case? It is legal... It is not unconstitutional. There may be a problem as far as property law goes, and there may even be a problem under Maine law as far as criminal trespass goes, but--
Byron R. White: What if the owner of the property is there at the gate, and the officers say this is an open field and we have probable cause to believe there is marijuana down at the end of that path and the owner says awfully sorry but you can't come on? May they forcibly enter?
Wayne S. Moss: --At that particular point as a matter of constitutional law they can enter. As a matter of property law they would get into trouble, but there would be no problem as far as constitutional law goes.
Warren E. Burger: They would just be in trouble with Maine but not with the federal government. Is that what you are suggesting?
Wayne S. Moss: That is exactly what we are saying that... Even in Katz itself this Court recognized that the Fourth Amendment cannot be translated into a general constitutional right of privacy.
Byron R. White: So that in your view there is just nothing a land owner can do outside the house to invoke Fourth Amendment protections which I take it is the answer you gave Justice O'Connor a minute ago. If the land owner himself out there with a gun cannot keep them out or cannot create any expectation of privacy, nothing can.
Wayne S. Moss: That is our position and I would like to explain that.
John Paul Stevens: May I just ask also that doesn't even require probable cause as I understand you.
Wayne S. Moss: Correct, yes.
John Paul Stevens: It wouldn't even require reasonable suspicion. The officer could just go up and say we are not sure. There might be marijuana here. We are going to search. They can do it.
Wayne S. Moss: Yes. Fourth Amendment protections would not apply at all.
Sandra Day O'Connor: Is your position consistent do you think with some of the administrative search cases from this Court?
Wayne S. Moss: Which cases do you have in mind? We think our position is consistent with Western Alfalfa and also with Camar and Say which are mentioned in Western Alfalfa so we do not see any problem there. I would like to return to Justice White's question as to what a land owner might be able to do to or whether he can create any reasonable expectation of privacy in his fields and woods. Our position is that simply by putting up perimeter fencing and boundaries without actually personalizing the woods and fields themselves but just leaving them either in an undeveloped or in their agricultural state that alone is not sufficient to create any Fourth Amendment interest in those fields and woods. He must do substantially more than that. He must personalize the area in order to create a Fourth Amendment interest in the fields and woods, and without such personalization--
Byron R. White: I take it that your position doesn't go as far as to say that an officer could... The land owner is standing at the gate. The officer says "We think there is some contraband sitting down there at the end of this path or some evidence or something. " The land owner says, "Well, you can't come on. " You say that as far as the Constitution is concerned the officer may enter but then he may search, but may he seize?
Wayne S. Moss: --Yes, he may seize in the sense of--
Byron R. White: Well, there certainly is an interest in what is being seized different from the interest in the land.
Wayne S. Moss: --Yes, that is correct.
Byron R. White: Except that then if you are legally there as far as the Constitution is concerned the items are in plain sight then I take it.
Wayne S. Moss: Yes. That is our position that the items are in plain view. Fourth Amendment protections attach to the seizure, Probable cause would be required in order to... If the officers had made a warrantless seizure in this case they would have had to have probable cause in order to make seizure.
John Paul Stevens: Supposing the items were buried so there is a gun buried in the field somewhere and they suspect and they go out and they dig for it. Couldn't they do that?
Wayne S. Moss: Yes, they could.
John Paul Stevens: As soon as they saw it they would have their probable cause and they could seize it.
Wayne S. Moss: Yes, that is correct. Once again it is the position that Fourth Amendment protections do not apply here. Now in the situation that you just posed there might be some state trespass problems.
John Paul Stevens: I understand. But the Constitution would not impose any obstacle to going into a property and digging around looking for a gun or body or anything like that.
Wayne S. Moss: Yes. That is the State's position.
Thurgood Marshall: Your position-- --Mr. Attorney General, what do you do with the word... What effect do you give to the word "effects" in the Fourth Amendment?
Wayne S. Moss: Effects are personal effects, but they do not actually reach as far as real estate or property.
Thurgood Marshall: I didn't say personal. I said effects.
Wayne S. Moss: Well, they said their effects which suggests personal effects.
Thurgood Marshall: No, it doesn't to me. It's my property.
Wayne S. Moss: Well, it does not say... In the Fifth Amendment they did use the word "property" but in the Fourth Amendment they did not.
Thurgood Marshall: You only apply it to the personal property but not the real property. That is your position?
Wayne S. Moss: Yes. It would apply to personal property but not to real property.
Thurgood Marshall: Give me any case that says that.
Wayne S. Moss: I am sorry. I did not hear the--
Thurgood Marshall: Give me a case that says that effects means personal property and does not mean real property.
Wayne S. Moss: --I think Hester is such a case.
Thurgood Marshall: Hester did not say one... All it said was in one sentence that it applies to the house and does not apply to open fields. That is all Hester says.
Wayne S. Moss: Hester said that the... and if I remember it correctly the exact sentence was something like the special protections of the Fourth Amendment extended to the people and their persons, houses and papers and effects do not extend to the open fields. Then they said that the distinction between the open fields and persons, houses, papers, and effects is--
Thurgood Marshall: I would like for you to show me that.
Wayne S. Moss: --Pardon?
Thurgood Marshall: It is not in the opinion.
Wayne S. Moss: Yes, it is in the opinion. It is in the opinion and I will read it if you like. This is 257--
Thurgood Marshall: Fifty-seven is the page--
Wayne S. Moss: --It is on page 59.
Thurgood Marshall: --That is the last paragraph.
Wayne S. Moss: Right. It says "The special protection accorded by the Fourth Amendment to the people in their persons, houses, papers, and effects is not extended to the open fields-- "
Thurgood Marshall: Period.
Wayne S. Moss: --Yes.
Thurgood Marshall: It does not say anything about what an open field is.
Wayne S. Moss: That is true.
Thurgood Marshall: Well, that is what I was trying to say that that does not help you. He could have meant what? He could have meant an open field was a forest. It is your position I take it that when Justice Holmes said open field he did not mean a ten by ten flower garden or a vegetable garden in a lot that is 100 feet by 200 feet. He is talking about something larger.
Wayne S. Moss: Yes. That is correct, and he is not talking about something that is--
Thurgood Marshall: Name me something in the opinion that gives you the idea that he meant something larger, the word "larger". It is not in there. It just says open field, and I interpret open field to mean one block, one acre or 87 square miles. All could be open field.
Wayne S. Moss: --Yes. That would be our position as well.
Thurgood Marshall: So you could apply this only to an open field.
Wayne S. Moss: No, because we are saying that the Fourth Amendment itself is protecting only a core zone of privacy and once one is outside that core zone--
Thurgood Marshall: Are you saying it applies only to a house?
Wayne S. Moss: --No. We are saying--
Thurgood Marshall: What further than the house?
Wayne S. Moss: --Pardon?
Thurgood Marshall: What more than the house?
Wayne S. Moss: It could also include a buffer zone that might be around the house.
Thurgood Marshall: What else?
Wayne S. Moss: It could also include areas outside the house which a person would personalize. It could be a--
Thurgood Marshall: Like a telephone booth--
Wayne S. Moss: --It could be a telephone booth--
Thurgood Marshall: --A barn?
Wayne S. Moss: --It could be a barn. It could be a tent that a person puts up in his woods and lives in, but it would not actually be the woods itself.
Harry A. Blackmun: The common law lumped together is the curtilage?
Wayne S. Moss: Yes, although we are not actually using a curtilage analysis. We are talking about a core zone of privacy that the Fourth Amendment is designed to protect.
Lewis F. Powell, Jr.: Would the barn's location be relevant?
Wayne S. Moss: It could be if--
Lewis F. Powell, Jr.: If it were within the curtilage arguably it could, but suppose it were a mile away from the home?
Wayne S. Moss: --Yes, but we are agreeing though that Fourth Amendment protection would apply to a barn.
Lewis F. Powell, Jr.: Wherever located?
Wayne S. Moss: Yes, wherever the barn itself is located because that would be the type of--
Byron R. White: Personalized?
Wayne S. Moss: --Yes, and that would be--
Byron R. White: Personalized barn?
Wayne S. Moss: --Yes, in the sense that a person--
Byron R. White: I mean a barn is personalized.
Wayne S. Moss: --Yes, by construction and use in a way that fields and woods even fenced and posted ones are not. The State of Maine's core concern here is that if the Maine court's holding is allowed to stand that it permits people to buy up large tracts of land and fence them and post them and then invoke Fourth Amendment protections for those fields and woods and then conduct elicit activities behind that fencing and posting and invoke the protections of the Fourth Amendment and thereby remain free from government investigation.
John Paul Stevens: People can buy houses and conduct illegal activity in them, too.
Wayne S. Moss: Yes, but the house is a core zone of privacy.
John Paul Stevens: I mean, your argument that they could use it illegally I do not know that that advances the inquiry, does it, because every area protected by the Fourth Amendment could be used for illegal purposes.
Wayne S. Moss: Yes, but--
John Paul Stevens: A yard house, a barn, a stable, whatever it might be.
Wayne S. Moss: --Yes. The distinction, though, is in terms of the privacy interest in the house versus the fields and woods.
William H. Rehnquist: Of course, as the Chief Justice suggests in the question in the earlier case if enough illegal activities are conducted in the house it may turn into a place of business.
Wayne S. Moss: Yes, it could, but we are not in any way saying that the Fourth Amendment would not apply to a place of business. This case is not like Katz in that the court does not have to extrapolate Fourth Amendment principles to the 20th century phenomena of the telephone booth. The fields and woods and farms that we are talking about here were in existence in the late 1700's when the Fourth Amendment was drafted. The framers could have contemplated them.
Byron R. White: The pine trees look much the same.
Wayne S. Moss: The pine trees lock much the same. They left pine trees, woods, fields... They left them out of the analysis of where Fourth Amendment protections apply, and there would even be... Our position is that there would actually be even less expectation of privacy now in fields and woods than there was in the 1700's because we now do have airplanes bringing whole areas of fields and woods into public view which would not have been open to view in the late 1700's. Thank you.
Warren E. Burger: Mr. Horowitz.
Alan I. Horowitz: Mr. Chief Justice, and may it please the Court: The relevant facts in the Oliver case can be stated quite simply. Acting on information that Petitioner was growing marijuana on his farm police drove up a road onto the farm. When a gate which contained a No Trespassing sign blocked that road they continued unobstructed on foot on a frequently used path around the gate and then down the road until they reached the marijuana field. It is not disputed that the marijuana was not discovered until the officers were on Petitioner's property, but it is well settled that that fact alone does not require suppression on Fourth Amendment grounds. The notion that somehow the area was particularly secluded and that there was dense underbrush is not really supported by the record. The police here just walked down the road which is exactly what the information had told them where the marijuana would be--
John Paul Stevens: Mr. Horowitz, can I ask you just one question? Would it matter under your submission even if it were totally secluded and secondly even if you had no suspicion your position still is the same is it not?
Alan I. Horowitz: --Well, to the extent that--
John Paul Stevens: As a matter of constitutional law.
Alan I. Horowitz: --Yes. To the extent that the subjective expectation of privacy of the owner enters into it the fact that it may be very difficult to reach helps them to some extent. Our position is that in an area like this there is still not a warrant requirement, that the privacy expectation is not there.
John Paul Stevens: Either there is total expectation of privacy... You say that is not to be considered in this case.
Alan I. Horowitz: Well, total subjective expectation of privacy.
John Paul Stevens: That is right.
Alan I. Horowitz: Well,--
John Paul Stevens: Total objective or subjective? As I understand your position it is wholly immaterial.
Alan I. Horowitz: --Well, I do not think you can ever have a total subjective or objective expectation of privacy in an area like a field. I mean there is always going to be access. It is just a question of whether access is going to be more difficult or less difficult.
Byron R. White: You build a very high fence around and electrify it. You can make sure that no human being can get in it--
Alan I. Horowitz: It would still open--
Byron R. White: --It is still open to the--
Alan I. Horowitz: --It is still open because it still does not have walls and it still does not have a roof so it is still open to view from the air.
Byron R. White: --That is enough, just the fact that it is open to visual inspection from the air is enough to destroy whatever other expectation of privacy there might be.
Alan I. Horowitz: I think that is the state of law as it is now. I mean--
Byron R. White: That is your position.
Alan I. Horowitz: --We have two positions. We suggest that at some point a person can take sufficient measures to exclude outsiders.
Byron R. White: So would you disagree with your colleague from Maine that... Say the owner is there at the gate and says, "This sign means exactly what it says and this path is not open to the public. " "Now just stay out. " "I have an expectation of privacy and I am now enforcing it. " Could the officers then enter?
Alan I. Horowitz: Well, the--
Byron R. White: As far as the Constitution is concerned?
Alan I. Horowitz: --Well, certainly if they had reasonable suspicion they could enter. It seems to me that... I would think that he really has to take exclusionary measures--
Byron R. White: Well, he did. He is. He is standing there and he says "If you are going to come on you will have to force your way on. "
Alan I. Horowitz: --Again I get back to that we have two positions. It would be my position that the Constitution does not prohibit the officer from going on to the land at that point because it is still an open field.
Byron R. White: With or without an expectation of privacy? I mean with or without reasonable suspicion?
Alan I. Horowitz: Yes, but certainly with reasonable suspicious. I mean I can understand--
John Paul Stevens: It is terribly important because as soon as you say that you are acknowledging the Fourth Amendment has some application. I thought your position was it had no application.
Alan I. Horowitz: --Well, again as I say I think we have two positions. I think the state of the law as it is now is that these fields are open. Fourth Amendment protections do not extend to these fields, and it is not a search when police officers go onto these fields.
John Paul Stevens: Your primary submission is that you need reasonable suspicion--
Alan I. Horowitz: That is our primary submission.
Byron R. White: --Like Maine's submission.
Alan I. Horowitz: Yes.
Speaker: That is your first position.
Alan I. Horowitz: Yes, that is our first position, but even--
Thurgood Marshall: Aren't there some areas of this country where you could have fence riders with authority to shoot anybody who passes the fence?
Alan I. Horowitz: --I am not aware if the law supports any authority to shoot anyone for crossing a fence.
William H. Rehnquist: Why can't the government be a little more straightforward in its position? I do not mean to suggest anything... It seems to me that the way you answer the questions so far indicate that the government has a great deal of uncertainty as to exactly what its position is.
Alan I. Horowitz: I see I am not making myself clear. It is our position that Fourth Amendment protections do not extend to these areas, but we recognize the possibility that at least where the land owner takes some serious measures to protect those areas and to create an expectation of privacy in those areas that the Court might disagree and the Court might take the view that there should be some Fourth Amendment protection for those areas. In that event it is still our position that these areas can never have the sort of protection that is granted by the warrant clause and the probable cause requirement and at a minimum the police must be able to enter when they have reasonable suspicion. I think that that position only makes common sense... The consequences of enforcing the warrant clause requirements here are just... There are just too many cases where any balancing of Fourth Amendment values would suggest that the police ought to be able to enter and they would not be able to enter. There are cases cited in the briefs where kids have gone onto the fields to hunt or fish or something and come back and report to the police that there is a marijuana patch growing or something that might be a marijuana patch growing. It just does not make any sense that the policeman cannot follow these kids back onto the yard where they had just been unless he has probable cause and a warrant.
Thurgood Marshall: There is no restriction at all. That is what worries me. You say that a police officer can go on anybody's land at any time under any circumstances for anything. You certainly cannot mean that.
Alan I. Horowitz: First of all, there is certainly a practical restriction.
Speaker: That is what I mean.
Alan I. Horowitz: But I do not think it is a restriction that is constitutionally required. There is a practical restriction in that the police do not... I do not know how many trillions and trillions of acres of open fields in this country. The police do not have time to go tramping through them. In almost all the cases you see cited involving the open fields doctrine the police only go on the fields because they have a reason because someone has suggested to them. So there is a built in safeguard for that. I do not think the Fourth Amendment itself extends any protection to these areas. If the warrant clause applied here and even if the police had gotten some tip, let's say something that does not amount to probable cause. If they had a tip that there was a body buried in the corner of a field or if there is a kidnap victim being held in a field then they could not go on without getting a warrant and they would not be able to get a warrant because they did not have probable cause. They would have to sit on their hands and do nothing.
Byron R. White: Do you think there was reasonable suspicion in this case?
Alan I. Horowitz: Yes.
Byron R. White: Just from an unidentified informant?
Alan I. Horowitz: Well, there was an anonymous tip. We do not know that much about exactly what there was, but--
Byron R. White: Do you think an anonymous tip over the telephone is always reasonable suspicion?
Alan I. Horowitz: --Well, we were told in this case that there was an anonymous tip. It was fairly specific. It told them exactly where the field was at the end of the road, and although I do not know exactly what it was the record also says that this was corroborated by other information the officers had that they had heard other reports in the community. So I guess what they had was several anonymous tips. I think from what we know about it it seems like reasonable suspicion. I think the police have to be able to go onto a field in a case like that where they have reasonable suspicion that there is a kidnap victim or a body buried there or something. Now if they got the same information for--
John Paul Stevens: Do they need more suspicion for that than to go into a barn? Say they were told there was a kidnap victim in a barn. What rule would apply?
Alan I. Horowitz: --A barn is an area certainly--
John Paul Stevens: It is unlikely that the kidnap victim is going to be out in the open. It is more likely to be in a structure.
Alan I. Horowitz: --Possibly.
John Paul Stevens: And you would acknowledge that there the Fourth Amendment applies.
Alan I. Horowitz: I think the... Well, depending on what sort of barn it is, but if it is a really enclosed structure--
John Paul Stevens: It does not seem to me your kidnap victim argument helps you very much.
Alan I. Horowitz: --Well, there is a lot of important evidence that may be found in a field and that the police may get information that will be found in a field. It just does not make any sense to keep them off. Now maybe in the case of a barn but certainly in the case of a house they have got the same sort of information--
John Paul Stevens: Well, let's stay with the barn. Does it make sense to keep them out of a barn without some kind of either probable cause or a warrant or something like that? What is your view of the law on kidnap victims in barns?
Alan I. Horowitz: --Well, I am inclined to think that there might be a lesser... that a barn is not a house and there might be a lesser standard.
John Paul Stevens: Would it be higher than the open field?
Alan I. Horowitz: I'm sorry?
John Paul Stevens: Would it be higher than the open field?
Alan I. Horowitz: I think so. In the hypothetical I pose if they have the same information for a house obviously they could not go into a house. That is established. You need a warrant and probable cause to go into a house. I think that illustrates why fields are so different here. The reason why you need a warrant and probable cause to go into a house is because the Fourth Amendment is concerned about protecting certain privacy interests that individuals have. Those are the innocent privacy interests, not so much protection against being discovered while they are committing a crime. It is recognized that there are very serious privacy interests that are always involved in people's homes. Any intrusion into the home is going to involve an intrusion into those sort of interests.
Lewis F. Powell, Jr.: Mr. Horowitz, do you accept or agree with the position taken by the State of Maine that there has to be a personalized interest? Your brief does not indicate that you do.
Alan I. Horowitz: I am not sure I completely understand what that means.
Lewis F. Powell, Jr.: Well, his explanation was that there had to have some relationship to people as perhaps indicated by Katz, and if you had a farm or a piece of property 100 miles from your residence that one elaborately fenced and posted and grew marijuana on it that I would think there would be no personalized interest in that beyond protecting one from crime. As I read your brief you say that if you take adequate precautions wherever the property is located and wholly without regard to any personal interest that the Fourth might apply. Why do you do that?
Alan I. Horowitz: Well, the ordinary precautions that farm owners take we do not think are sufficient to implicate any Fourth Amendment interest. Fencing and posting a field I do not think is enough to really exclude people, and it is not enough to create an interest. If they take very elaborate precautions to keep people off then there might be some. I am not sure. I think building a building certainly creates some expectation of privacy and some Fourth Amendment interest. I do not know if there has to be personalized--
Lewis F. Powell, Jr.: But a building would not be an open field.
Alan I. Horowitz: --Right.
Lewis F. Powell, Jr.: Hester rather cryptic did make any exception to whether some effort had been made to conceal or obstruct the entry of the open field did it?
Alan I. Horowitz: In this case?
Lewis F. Powell, Jr.: In Hester.
Alan I. Horowitz: In Hester.
William H. Rehnquist: What about somebody like Thoreau who goes up to Waldon Pond and simply lives in a little are right around there. He just not only grows things but that is where he sleeps at night. That is where he eats his meals. Do you think if he put a fence up around that--
Alan I. Horowitz: No.
William H. Rehnquist: --No?
Alan I. Horowitz: No. I do not think so and to talk about Hester for a minute I think it is not true that Hester does not have to be overruled or at least substantially modified for Oliver to prevail in this case. The facts in Hester are that the police knew that they were on Hester's property and the record although it is not reflected in the opinion but the record suggests that they climbed over one or two fences to get there so I do not know that that case is very different from this one. I think the Court's decision there reflects a common sense understanding that these sorts of places are not really in a practical sense restricted from outsiders and if people are going to do things in those fields they are exposing them to some extent to be seen by other people and the police have the same rights that the other people do to see these things. I think it is important... The Fourth Amendment to some extent is a matter of probabilities, and I think it is important to focus on that. Even the warrant clause recognizes the possibility that police may make an unjustified intrusion into a private area if police get a warrant on probable cause. In some not insignificant percentage of those cases their suspicion is going to turn out to be unfounded, and they are going to make an intrusion into the home that invades serious privacy interests and that is not warranted by law enforcement interests. That is the reason we have the warrant and probable cause requirement to minimize those entries as much as possible. Now in the case of a field it just does not make sense to have the same sort of requirements because there is very little privacy value in what goes on in a field. People just do not engage in the sort of private matters that the Fourth Amendment was intended to be directed at when they are out in their fields. So let's assume the police go onto a field with less suspicion. Let's say they have only 5 percent reason to think that there is marijuana in the field and in 95 percent of the entries they turn out to be wrong, but in those 95 percent of the entries they do not see anything except cows and corn and trees. It does not really matter so it just does not make sense to erect this kind of barrier which is going to have a serious impact on law enforcement to protect what is basically a theoretical privacy interest or one that is going to exist in only very unusual cases. I would also like to talk briefly about looking at this case from the standpoint of the land owner. I think the facts in this case are not very strong for an expectation of privacy. The police walked directly onto the field without any barrier. The idea that the No Trespassing sign somehow creates a significant expectation of privacy I think just does not accord with reality. The stipulation in this case was that there was a No Trespassing sign when the officers left the highway and entered into the beginning of Mr. Oliver's farm. This was even before they came to the house.
Warren E. Burger: We will resume there at 1 o'clock with three minutes rebuttal remaining. Ms. Zeegers, you may resume your argument.
Donna L. Zeegers: Mr. Chief Justice, and may it please the Court: The core area analysis set forth by the State of Maine in that a core area and the house are the only areas subject to Fourth Amendment right is a theory that was specifically rejected by United States v. Chadwick and upheld by other cases in this Court. The contention by the State that people would be able to buy land and fence it and grow marijuana any way they want to without the police being able to do anything about it, of course, has no merit because the police can get a search warrant as they have in the past and as they will in the future. In terms of the body or kidnap victim being on the premises certainly the police would be able to go in without a warrant because those circumstances have been held to be exigent circumstances in state courts as well as in federal courts. I would like to take a look at the policy reasons which do not justify abandonment of the Fourth Amendment reasonable expectation of privacy analysis in favor of a per se exception.
Byron R. White: This Court has never extended that to open fields. That is what is at issue in this case isn't it?
Donna L. Zeegers: Well, in terms of the per se exception this Court, of course, has never extended that to open fields, but if you look at the reasons for the exception to the warrant requirement that this Court has upheld we have seen that they have been in the context to preserve the safety of police officers, to prevent the loss or destruction of evidence or in the special nature of a government interest such as inventory searches. We have seen hot pursuit, exigent circumstances, automobile searches, searches incident to an area surrounding a lawful arrest, the search of a border, the consent search, the stop and frisk. Of course, these are none of the situations presented in this case. It is important to note that the possibility for police abuse is manifest if we adopted a per se exception because we would need no probable cause. We would allow indiscriminate searches by police to continually hope to find evidence of a crime instead of the general rule that all warrantless searches are per se unreasonable except for a few carefully guarded exceptions. The bright line rule proposed by Petitioner in this case will alter that general rule to the extent that all warrantless searches are per se reasonable except those searches of houses and the core area. This I would have to say is not in keeping with the spirit nor the letter of the Constitution. It is important to note in this case that there was clearly a subjective expectation of privacy which was reasonable.
Warren E. Burger: Let me ask you one question. It isn't very often that sensitive constitutional questions can be resolved by use of modern technology, but did I understand you to indicate that if a helicopter or a light plane went over and took one of these very sensitive pictures conclusively showing that it was marijuana and took that to the magistrate that a warrant could properly issue?
Donna L. Zeegers: That would be one factor which might be enough to establish probable cause. I mean it would depend on certainly the person taking and examining the picture whether they would have the expertise to determine from the air whether that was marijuana--
Warren E. Burger: Assume all that. The magistrate himself if you want or at least a prosecuting attorney takes the pictures, supervises them and they are unquestioned. Now that is enough to get a warrant is it?
Donna L. Zeegers: --Certainly the case law has said that and I have not heard any constitutional arguments that have said that that is not the correct analysis.
Warren E. Burger: There is another proposition announced in a good many opinions that the knowledge of one officer involved in an operation is the knowledge of all.
Donna L. Zeegers: Yes.
Warren E. Burger: I take Justice White's hypothetical. The man in the light airplane or helicopter is an expert on foliage and he says this is marijuana, and they radio that down to the officers who then move in without a warrant. Is that okay?
Donna L. Zeegers: No. That would not be okay.
Warren E. Burger: I see. I just wanted to clarify your position.
Donna L. Zeegers: Right.
Warren E. Burger: Thank you, counsel. The case is submitted.


Earl Warren: Number 463, Anna H.Morgan, Appellant, versus the State of Ohio. Mrs. Furry.
Thelma C. Furry: If the Court please. This matter is before this Court for the second time. In June of 1957, this Court vacated the conviction in this matter and remanded it to the Ohio Supreme Court for reconsideration in the light of the Watkins and Sweezy decisions. The Ohio Supreme Court did reconsider and adhered to its original decision. The first remark I want to make to this Court is that this is the first case in which the Ohio Supreme Court has ruled on the validity and scope of the Ohio Immunity Act relative to testimony before a legislative Committee although there has been an Immunity Act in Ohio since approximately 1872. I want to also point out to this Court, that this is the first case involving contempt of a state legislative Committee in which an immunity statute has been involved that this Court has considered all other cases that this Court has considered involving immunity statute has involved grand jury. And we all know the grand jury sessions are held in secret so that the testimony given there is not available to the public or to any other persons or agencies. You must remember that this year was 1952, this was the year that Mrs.Morgan was called before this Commission. She was the second unwilling witness called before the Commission in the State of Ohio. The first and -- and I want to point out to this Court that she appeared without counsel. Mrs. Morgan was not represented before this Commission with counsel. Mrs. Morgan was present during the testimony of the first witness, Mr. (Inaudible), who also appeared without counsel. This is set forth as a matter of record in the record at page 62, the fact that she was present during the testimony in the questioning of Mr. Terrell (ph). At the conclusion of Mr. Terrell (ph) testimony in questioning, Mr. Renner, counsel for the Commission, made this statement. At page 11 of -- of our brief, Mr. Renner said, ”Mr. Terrell (ph), you have the right to refuse to answer any question, the answer to which might incriminate -- incriminate you. Otherwise, you are required under the law to answer the questions that are put to you by this Commission," which is a Commission constituted by the people of Ohio to make a city of Communism and Un-American Activities in Ohio. That is also in the record of page 62 as part of the record the statement made by this, Mr. Renner. The Commission commenced questioning this appellant, Mrs.Morgan, without making any preliminary statements as to the scope of its authority, its -- the pertinencies of questions to be asked are any -- anyway identifying its -- its power.
Earl Warren: Was a testimony of this other witness given on the same day?
Thelma C. Furry: On the -- I believe it was the morning session.
Earl Warren: Yes. She was present at the hearing?
Thelma C. Furry: She was present at the hearing and the record so shows that she was present.
Earl Warren: Yes.
Thelma C. Furry: In -- at page 62 of the record if the Court wants to verify that. The second question after Mrs.Morgan was sworn, she gave her name. The second question put to here was, “And where do you reside, Mrs.Morgan?” On page 12 of our brief, her answer was, “I regret that I cannot answer your question under the Fifth Amendment of the Constitution because to do so would give your Committee an opportunity to incriminate me.” Now, prior to the time that this witness was called, on March the 31st of 952 -- I'm looking at page 10 of my brief, at the second paragraph, stated. There were hearing held by this Commission by the way, a secrete session that were not open to the public and which cooperating witnesses testified. April the 1st, 1952 was the first public hearing, where -- where these -- where Mrs.Morgan appeared as an uncooperating witness. The records will show that on March the 31st of 1952, when the hearings were held in Columbus, a person by the name of John DeLong testified at length. He described his relationship with the appellant, Anna Morgan, told where she lived, stated that she was a member of the Communist Party and active in its organizational work. This had been carried in the news. This is also in the record at pages 1662. This testimony of the DeLong had been in the newspapers and Mrs.Morgan was aware of the fact that she -- that he had testified about her, her activities and her address. Oh, I am corrected by counsel by saying that Mr. DeLong testified at a open hearing, it was not a closed hearing so that is why she was aware of everything that he had to say.
Felix Frankfurter: In other words, you're trying this question regarding the residence, matters that has actually been before the Committee -- Commission indicating or at least to cast some light on what disclosure of residence might be.
Thelma C. Furry: Yes. I think, that the record will disclose if this DeLong testified and --
Felix Frankfurter: Not in the secret recess of the -- the Committee's mind but what actually had been --
Thelma C. Furry: Oh, yes.
Felix Frankfurter: -- and that's what we correct --
Thelma C. Furry: An open hearing. This witness had testified about meeting that Mrs.Morgan's home etcetera. At the beginning of this session of Mrs.Morgan's, she presented a prepared statement to the Commission in which she stated the following. At page 57 in the record, Mrs. Morgan said this -- about the middle of the page of 57, she said, “This Committee was paid to investigate so-called Un-American and subversive activities, but in all these months, it has fail to state what it considers Un-American or subversive.” At the bottom of that page, she goes on and she says, “Who am I, you may ask?” She answers with her statement, “I am just an average American house wife.” And closes that paragraph by saying, “I now, present my sincere beliefs, and let this Committee and all interested citizens who pay this Committee judge me.” Then she proceeds with her statement over to page 59 at this time which I want to read her closing paragraph, “Because this Committee conducts its hearings like an inquisition with no rules of evidence that victims are denied the rights which they would have in a dully constituted Court. Therefore, I must claim the protection of the Fifth Amendment of the constitution of the United States and remain silent before this Committee.”
Felix Frankfurter: That's her statement, indicates why she didn't think she needed a lawyer.
Thelma C. Furry: Perhaps, I think she did quite well for herself. She continue to just -- to decline to answer the questions of the Commission and when she get about halfway through the questioning, Mr.-- on page 4 or page 13 of our brief, you will see what Mr.-- the Chairman, Mr. Renner said to her. He said, “Mrs. Morgan, I should like to advice you under the Fifth Amendment, you are permitted to refuse to answer questions that might tend to incriminate you.” Mrs. Morgan said, “Yes.” The Chairman said, “But you are not permitted to refuse to answer question -- answer questions simply for you own convenience, counsel may proceed.” Then following her refusal to answer each question, counsel proceeded to ask the next question. Mrs. Morgan was never directed to answer any question. Mrs. Morgan was never offered any immunity for answers.
Felix Frankfurter: (Voice Overlap) -- You will -- I don't want to take you off your -- your design of argument but what was said in the previous case. It would arouse such curiosity, perhaps for my own peace of mind, we can take care of it right now. Is it true that -- that immunity from prosecution automatically applies in witnesses, which they must disavow so that there really is no legal basis for a claiming a privilege?
Thelma C. Furry: I want to say to the Court, that is what the prosecutors had been arguing all included the Court --
Felix Frankfurter: And cannot -- cannot be used.
Thelma C. Furry: I do not think that is true. No, Your Honor and our courts in Ohio had never said so prior to this particular case.
Felix Frankfurter: What is the basis for saying it must be in writing? Is there anything in the statute (Voice Overlap) --
Thelma C. Furry: The statute does say that, Your Honor. We have --
Felix Frankfurter: Have you printed the statute (Voice Overlap) --
Thelma C. Furry: Yes we have it.
Felix Frankfurter: Where is it?
Thelma C. Furry: In our brief, it's at page 6. It was then called General Code 60 at the time of this hearing, it's now revised to a different number but that is the precise language, the last paragraph on page 6 of our brief. The --
Felix Frankfurter: Exactly, as I read it. And I know how perjurious it is to get meaning out of a statute from a statement and having been great relevance if you haven't tried this. The statute says nothing about the duty to claim the immunity, does it?
Thelma C. Furry: No. It does not.
Felix Frankfurter: Except that it doesn't apply to immunity. Apparently, it doesn't apply to fellow who wants to -- we've got something, entitled to address that he wants to rid himself of and force his way before the Committee is at work.
Thelma C. Furry: That's correct. Now, our -- calling the Court's attention to the record commencing at the bottom of page 49, that is the record of the actual proceedings before the Ohio Un-American Commission of the proceedings with Mrs.Morgan. Starting at 49 through page 56, they have the proceedings of questions and answers in their whole interrogation. Above the middle of page 51, the type of question start out, isn't it a fact type of question which indicated that this Commission was not trying to get information but was merely, asking about matters that they already had and was saying, "Isn't it a fact that this is true?" doing this in public open sessions where everyone could hear what the answers were. At this time, I want to give my colleague an opportunity to further develop the arguments in this matter.
Earl Warren: Mrs. Ginger.
Ann Fagan Ginger: May it please the Court. I think that the statement by Justice Frankfurter as to whether or not this witness needed an attorney can't be decided very simply and the reasons for not having one can't be assumed.
Felix Frankfurter: Because I'm not -- that was just a -- my remark.
Ann Fagan Ginger: This was in 1952 in Columbus, Ohio --
Felix Frankfurter: That would be one of the claims, is it? That -- that she was denied counsel?
Ann Fagan Ginger: No. It is not a claim but it is -- I'm sure that --
Felix Frankfurter: As -- as many to compliment of the --
Ann Fagan Ginger: I understand but the problems of lawyers with a client in these kinds of cases, as you know, are very many. And the fact that Mrs.Morgan stuck so strictly to the formula of words which she set forth in her statement I think has a significance, and the reason we mentioned in her statement that she referred to the -- her inability to figured out what the Commission was doing is our -- in our opinion, an effort by a layman without counsel to explain the lack of pertinency or here -- why she would find it difficult to decide whether the questions asked of her were pertinent to any matter before the Commission. The appellant in this case takes the position that this Court had a reason for remanding this case to the Ohio Supreme Court for reconsideration in the light of the Watkins and Sweezy decisions. The case wasn't remanded in the light of Bart, Emspak and Quinn and we don't deny of course that the problem of direction to answer is extremely important but we also do not think that this case is limited to that issue. The fact is that this case was argued before the Ohio Supreme Court but --
Felix Frankfurter: Maybe we understood the scope of Quinn and the others better than the scope Watkins and the others.
Ann Fagan Ginger: Well, I don't say we get into that at least at this point of the argument but this case was argued before the Ohio Supreme Court for the second time, the day after the Emspak, Bart and Quin decisions were decided. And the Court hadn't had enough to read -- read those decisions and ordered reargument. And on reargument, the Court held that it was not necessary to have a direction to answer where you have an Immunity Act.
Felix Frankfurter: But the Quinn -- the Quinn problem was arguably under the hearings, was it, in the case?
Ann Fagan Ginger: It was argued -- it was argued --
Felix Frankfurter: Originally.
Ann Fagan Ginger: Originally and it was repeated on the hearing.
Felix Frankfurter: Yes.
Ann Fagan Ginger: This Court held in the Sweezy case that the responsibility for the proper conduct of a less -- legislative investigating committee rest on the legislature itself. And if the lack of any indications that the legislative -- legislature wanted the information which the investigating body attempted to elicit must be treated as the absence of authority. Now, here, we have a stronger case. This Commission was established in June of 1951. It called what are known as friendly witnesses until the spring of 1952, and in April 1st, it called Mr. Terrell (ph) and immediately thereafter, called the appellant as a witness. These were the first witnesses who declined to answer any questions. A few months later, it called -- I believe it was a few months later, it called the witnesses who were involved in the last case. January 1st, 1953, that is nine months after it began asking questions of unfriendly witnesses, the Commission itself recommended its own demise and provided that there should not be a period in which Ohio could not investigate Un-American Activities and therefore proposed a new statue setting up a special Assistant Attorney General who would work on this problem. And since they've realized that it would take a few months for this legislation to be passed, they recommended that their life be continued for six months. In other words, here, we have a situation in which the Chairman of the Commission did not push the witnesses to answer questions which they felt might be incriminating, in which the Chairman and other members of the Commission did not direct witnesses to answer their questions in which the Commission itself evidently felt that it should not continue to exist because it not -- did not serve a legislative function and in which the General Assembly abolished the Commission and instead, set up a procedure providing secret hearings for witnesses in this kind of case before a grand jury and it evidently accepted this Court's decision in the Nelson case that this whole area has been preemptd by Congress because it has proceeded in no way since that decision, even under the special Assistant Attorney General. So here, unlike Sweezy, we have a clear indication that there was an absence of authority in the Commission to attempt to elicit this type of information from the appellant. This Court also held in the Sweezy case that the authorizing resolution must be studied in order to discover the amount of discretion conferred upon the investigating Committee and its safeguards can be nullified when the Committee is investing with a broad and ill-defined jurisdiction. There is nothing in this resolution establishing the Un-American Activities Commission of Ohio which can be considered narrow in scope. The statute is set forth in the appendix to the brief of appellant, and you can see from the wording that it was written with the same broad sweep as that involved -- involved Watkins and Sweezy. This Commission was to investigate all facts relating to the activities of person groups, the persons groups and organization whose membership includes persons who have as their objective or maybe suspected of having as their objective the overthrow or reform of our constitutional governments by fraud, force, violence or other unlawful means. All facts concerning persons, groups and organizations known to be or suspected of being dominated by or giving allegiance to a foreign power or whose activities might adversely affect the contribution of this state to the national defense, the safety and security of this State, the functioning of any agency of the State or national government for the industrial potential of this State. Surely, it would be hard to find a statute written in much broader language. This appellant as I mentioned, objected to the scope of this inquiry within her ability as a layman and doing it in writing in advance at the hearing by saying that no one could know what Un-American or subversive meant from the work of the Commission up to the point at which she was called as a witness. In addition, no statement was made at the opening of the hearing concerning the scope or purpose of the Commission or of that particular hearing. And in fact, the questions asked of this witness were not pertinent to any matter properly before a state legislative investigating committee. Some of the questions were purely preliminary. For example, "Where do you reside? Are you a citizen? How long have you been a resident of Franklin County and where are you employed?" He sound like purely preliminary questions. As to the question of, "what -- where do you reside?" My colleague has already pointed out that the previous day, a witness had gone into great length about, where the -- where my client resided and meetings of the Communist Party had been held at her home. In terms of her employment, many of the questions related to an allegation that she had been employed by the Community Party of Franklin County or the State of Ohio. As for the other questions, these were purely preliminary. Well, it maybe true that in a court of law as Mr. Justice Frankfurter pointed out, a witness cannot merely shout Fifth Amendment and proceed to not answer questions. In a legislative investigating committee which is not a court, these questions cannot, we believe, has been -- the answers could not possibly have been of any help to the Ohio General Assembly in framing legislation. And therefore, they were purely preliminary. If --
Felix Frankfurter: At the -- towards this ordinance, and their still purely preliminary, then they can't be much in place about answers.
Ann Fagan Ginger: Well, the -- I think before a legislative investigating committee, if they were purely preliminary, then the Chairman who did not direct that they be answered --
Felix Frankfurter: Directed information.
Ann Fagan Ginger: -- and the Committee which did not urge that they were important couldn't have carried very much and certainly, the legislature did not indicate that they were interested in this kind of thing on the contrary. As we mentioned in our brief, they specifically say, we've had a lot of criticism because we have asked questions in public.
Felix Frankfurter: Of course, if they were -- if the question wasn't read or if there wasn't explicit demand to answer then it doesn't matter whether they're preliminary or (Voice Overlap) --
Ann Fagan Ginger: Well, I think that's true.
Felix Frankfurter: -- thing as subsidiary.
Ann Fagan Ginger: We also maintain that the Commission did not have any legitimate function from the time it was founded.
Felix Frankfurter: But even -- even the legislative commission -- committee -- well, I should say even more of legislative committee than the Court, must get underway.
Ann Fagan Ginger: We maintain that this Committee -- Commission had been underway for some period of time. In the previous day, had asked the witness where this client -- where this appellant lived and what she had done, and if they were merely confirming information which they already have, if they were acting as a cross-examining body rather than as a body seeking information for a legislative purpose.
Felix Frankfurter: I wish your extent as for a legal instructions were commonly accepted for all purpose.
Ann Fagan Ginger: There were no questions which were asked of this appellant which related to any danger to the State of Ohio from overthrow. And all the questions which were not preliminary related to matters which were involving political activity which is protected by the First Amendment. All the questions which were not preliminary related to the field of subversive activity on a national scale, a field which the Federal Government has wisely preempted. And in your Nelson decision, you point out the problems that would arise if you had separate investigation into subversive activities by each State.
Felix Frankfurter: (Inaudible)
Ann Fagan Ginger: In addition to which all of the questions which were not preliminary, were within one area. And under the Yates decision, where a witness draws the lines of refusal by declining to answer within an area, the prosecutor cannot multiply contempt by further questions in that area. This witness was indicted for 37 counts of contempt and all of the counts from six, I think, on related to the single area a Communist Party activity. This Court held in the Sweezy case that legislative investigative committees can encroach on the constitutional liberties of the individual. And that unquestionably, there was such an invasion of Sweezy's liberty in the area of political expression. In the Sweezy case by the Attorney General of New Hampshire, an area in which Government should be extremely reticent to threat. And the Court said, "We do not now conceive of any circumstances wherein a state interest would justify infringement of rights in these fields." But you continued on that point to say that you didn't have to reach this question because the New Hampshire Supreme Court had recognized there was nothing to connect the questioning of the petitioner with the fundamental interest of the State in preventing its course of an overthrow. Now, we maintain the facts here are very similar. The statute itself establishing the Commission required the Commission to invade the appellant's liberty of political expression. It required that questions be asked which could not but affect appellant and other citizens of Ohio in their free exercise of their rights under the First Amendment. And the questions could not have provided the Commission or the legislature with any new facts relating to possible overthrow of the Government of the State of Ohio. They rather dealt into appellant's pass conduct in order to corroborate information already in the possession of the Commission. In other words, we maintain that the statute establishing the Commission was unconstitutional as in violation of the First Amendment rights guaranteed to this witness through the Due Process Clause of the Fourteenth Amendment. Now, we come to the problem which the Ohio Supreme Court faced. They were not willing to discuss the question of the First Amendment rights either before Watkins and Sweezy were handed down or thereafter, nor would they prepare to discuss the points that this Court had made on the responsibility of the legislature over investigation. No opinion was written after the argue -- reargument on remand from this Court. Nor is the Court willing to discuss the problem of the broadly worded statute and that there was no method for determining the pertinency of the question. None of these things where ever discussed by the Ohio Supreme Court in any written opinion. They merely affirmed the conviction without opinion. They therefore rested their whole opinion upon the fact that there is an Immunity Act in the State of Ohio and that the statute does not require a direction to answer. And that therefore, they were not found by this Court's decision in Emspak, Bart and Quinn which said that in a federal case, there must be a direction to answer. I think it is significant that this is the first case in which a State seeks to have this Court affirm a conviction for contempt in the absence of any direction to answer. In the Regan case for example, there was a direction to answer. The United States statute in the Emspak, Bart and Quinn case says nothing about a direction to answer no more than does the statute in the State of Ohio. But this Court felt that there must be a clear disposition of the witness' objection as a prerequisite to prosecution for contempt. While it is true that the State of Ohio is governed by the Supreme Court of the State of Ohio in the interpretation of its statutes and we cannot claim that there is a violation of due process within the meaning of the Ohio Supreme Court or the Ohio constitution by fair which direct to answers since the Ohio Supreme Court says this is not required. We do claim that there is a denial of the right of the appellant under the Fourteenth Amendment Due Process Clause when you say to her in effect after the fact, "You should have answered because you would -- were clothed with immunity from the time you walk into the hearing room. She had a right to a clear-cut choice between refusing to answer on the basis of the privilege against self-incrimination and answering and being clothed with immunity from prosecution by the State only in an area where prosecution by the Federal Government was not only possible but probable in that time at the period. The Court held -- this Court held in Emspak, Bart and Quinn that their giving a direction to answer is a minimal procedural requirement. And that failure to do so is the defect in laying the foundation for a prosecution. We feel that the same situation applies here. It cannot be assumed that the witness would have given the same answer if she had been given a clear-cut choice, it's impossible to know. The fact that she wrote statement and handed it to the Commission at the beginning of the hearing, does not mean that if, the Chairman of the Commission had said, “Now, you must understand, Mrs. Morgan, that if you do not answer these questions, you will be cited for a contempt and you must understand it if you do answer them, you cannot be prosecuted by the State of Ohio because we're granting you with immunity.
Felix Frankfurter: You're suggesting it should not be opened to reason?
Ann Fagan Ginger: Well, I'm suggesting that there is no reason to believe that she wouldn't have been. And I think the fact that she stuck so closely to this formula of words in answering each question, indicates that she was without counsel that she had thought the thing out in advance and that she was not capable, she didn't feel that she would be capable of finding a new formulation during the course of the hearing. I don't think it, that here rigidity in answering indicates a rigidity in her ability to reason but rather a fear of this hearing and of her, the fact she wasn't a lawyer and that she was dealing with lawyers. Certainly, it is impossible to know what the witness would have done if she had directed to answer since she wasn't directed to answer. And it can't be said that it wasn't until after the 12th question that in the indictment -- that the Chairman told here she could use the Fifth Amendment. She have sat in a hearing room while Mr. Terrell (ph) was interrogated. And Mr. Terrell (ph) had been told by the Chairman that he did not have to answer the question if it might incriminate him. And certainly, she listened to this I'm sure with considerable interest and was affected by this from the first question forward. It cannot be held either that the Immunity Act in Ohio is sufficient to erase the privilege. There can be no contention that a -- an immunity granted by the State of Ohio even if it did clothe her with a complete immunity from prosecution in the State of Ohio from the moment she walk into the room. And even it is assumed that this immunity took effect without anything being said about its existence and without any mention being made to her that it was being granted to her. It cannot be claimed if immunity erased the privilege within the language of this Court in the Olman case because we have in this country two sovereignties that act upon each individual at any given moment. And in this case, the United States had taken an active interest in the prosecution of the person's forced subversive activities. You can't claim that a -- an immunity granted by the State of Ohio would have had any effect whatever in a prosecution against this witness under federal law. And therefore, it is untrue to suggest that the Immunity Act had been applied at all to her, erased here privilege against self-incrimination. Now, this Court has never heard a case in which the double -- double sovereignty question arose in terms of immunity where there was a legislative investigating committee involved. All of the cases before this Court, I think, from Brown against Walker, to whole list, involved grand jury proceedings. And there's a fundamental difference between a grand jury and a legislative investigating committee. In a grand jury, the proceedings are secret and there would be no way for a prosecutor in another jurisdiction to know what is said in the grand jury minutes. Unless there is illusion between the state and federal prosecuting attorneys which one would not assume. Therefore, the decisions which this Court has handed down, Jack against Kansas, Brown against Walker, United States against Murdock and the others including Knapp against Schweitzer do not settle the matter here. The fact is that wherever there has been an actual livelihood or probability of prosecution in the second jurisdiction, this Court, as Justice Holmes said one way or the other has not -- has not found the person guilty of contempt for refusal to answer and that was true in Bowman against Bates, it was construing United States against Saline Bank and then other cases in the lower courts. The -- you cannot read the fact in these cases, Jack against Kansas and the others and separate them without separating them from the theory profoundrd because in none of those cases was there the kind of threat of prosecution in the second jurisdiction, which existed in this case. This was April of 1952, there were Smith Act prosecutions going on throughout the United States and there were also state prosecutions going on for the same kind of activity. Under State of Ohio had at one time, prosecuted a witness under its State Criminal Syndicalism Law. So that there was such a law on the books and it was known to the prosecutors. And it cannot be assumed that the witness here before the State Committee was immune from such federal prosecution or that the danger was in any way improbable or they --
Felix Frankfurter: Mrs. Ginger, I understand what you're urging is subsequent prosecution in another jurisdiction, is that right?
Ann Fagan Ginger: That's right.
Felix Frankfurter: Therefore, I should say that the difficulty would arise if such subsequent prosecution were undertaken rather than taking away from the State of Ohio, it's up to that time unquestioned, I mean its power to elicit the testimony exchange for not prosecuting with any (Inaudible)
Ann Fagan Ginger: I don't think there is (Voice Overlap) --
Felix Frankfurter: After that time just forgetting the prosecution in another jurisdiction. That certainly cannot be denied to or hire. The difficulty arises as argue of the threat that in another jurisdiction by making this -- by making this compelled disclosure in exchange for non-prosecution in Ohio, you may run into prosecution in the United States. And so I suggest that -- that the evil is the prosecution in the United States and not in the grant of immunity in Ohio.
Ann Fagan Ginger: Well, I don't think despite the brief by my worthy opponent that the sovereign State of Ohio has ever had the jurisdiction to ask a person questions or to prosecute them for something they may have done against the United States Government.
Felix Frankfurter: But that's a different problem.
Ann Fagan Ginger: I --
Felix Frankfurter: That's a different problem, isn't it?
Ann Fagan Ginger: No, I don't thinks so. I think that the -- that the decision in the Nelson case which came down after this questioning occurred represented sound thinking on the part of the Supreme Court of Pennsylvania which had considered this matter for sometime and which had considered also the statements by the United States officials, both the President and the Attorney General --
Felix Frankfurter: If your -- this argument means that Ohio can't deal with the matter because Uncle Sam is taking it over.
Ann Fagan Ginger: That's correct, but I would go further and I would say that on any matter in which the federal and state jurisdictions can both act upon an individual, you cannot erase the privilege against self-incrimination unless the person is clothed with immunity from prosecution in both jurisdictions and that any other reading of the Immunity Act or of the constitution would result in the denial of due process to the individual.
Felix Frankfurter: Well, the difficulty isn't that he's denied privilege of self-incrimination but that he's going to be prosecuted again. And therefore, if your argument is valid, he can't be prosecuted again because that would be a denial of due process.
Ann Fagan Ginger: Yes. But I think --
Felix Frankfurter: To have him -- to have him prosecuted by Uncle Sam out of testimony extorted by him when he had no means of withholding it.
Ann Fagan Ginger: I think, that's true but I think you would agree that it is a very -- it would take a witness with more that one lawyer to feel at ease in answering a question before a state legislative committee knowing that this testimony must by law be turned over to a federal prosecutor and the -- with no assurance which --
Felix Frankfurter: It says that it must by law be turned over.
Ann Fagan Ginger: The statute requires disclosure --
Felix Frankfurter: Well, that's a matter of -- that's maybe a different ground of attack, that -- that the State lent itself as a latency of the Federal Government.
Ann Fagan Ginger: That's right.
Felix Frankfurter: That's still another job?
Ann Fagan Ginger: All right. Well, I'm now stating it --
Felix Frankfurter: And we don't want to make it too large out of legal arguments.
Ann Fagan Ginger: This case, it may seem odd to say has been in the courts for seven years. Well, it may seem simple to settle it on the question of direction to answer and we are not suggesting it shouldn't be settled on that point. We've argued the case four, five times before the Ohio Supreme Court and we are not prepared to omit any point since that Court has seemed fit to decide it so many times against us. I think, that --
Felix Frankfurter: My questions presuppose that your argument brought the questioning, and therefore, it's not to be rejected out of out of fairness.
Ann Fagan Ginger: Well, we -- we take many positions on immunity at some of which we believe, you Mr. Justice Frankfurter, might agree with us, some which we assume you may not agree with, but we took --
Felix Frankfurter: (Voice Overlap)
Ann Fagan Ginger: That's correct. But on the question of double sovereignty, your word is one that we are concerned with along with the other members of the bench because you have written about it so extensively. And the -- we have several positions on the immunity question. One is that she was never directed to answer and affords no other rights were at any given a moment. One of this is not the same as Knapp against Schweitzer because that was a grand jury where the proceedings were secret and here there was a great likelihood of prosecution by the Federal Government. We also say that the statute required disclosure and liaison between the State to federal officials as to any matter testified to. And we also say that fundamentally, the immunity granted by one jurisdiction is not sufficient unless it covers in the tread of prosecutions from the second jurisdiction which also could prosecute for the same crime. The State of Ohio has concerned itself with the question of the -- its sovereignty and seems to be concern that it is in danger of losing its sovereignty if this Court reverses the conviction of appellant on these facts. And yet, this is the first time that Ohio has had to consider the legislative Immunity Act for the problem of contempt in the face of this Immunity Act. When Mr. Justice Frankfurter earlier asked what the Immunity Act provided or provide case law at this point, there has never been a prior case in which this issue arose and there has never been a case of contempt of the Ohio legislature or the Ohio legislative investigating committee involved in any field other than corruption in Government. And I think this speaks well for the sovereign State of Ohio. But until 1952, they never got into a field of legislative inquiry outside the field of corruption in Government. It is important of course that in Ohio, the investigating committees which have operated have in the past not attempted to question private individuals of particularly about their political beliefs or actually about anythingelse.
Earl Warren: We'll recess now, Mrs.--
Ann Fagan Ginger: Yes, sir.
Earl Warren: -- Ginger.