Earl Warren: Number 103, Joe Nathan Cooper, petitioner versus California. Mr. Traynor.
Michael Traynor: Mr. Chief Justice, may it please the Court. This case is here because of a vital piece of grocery bag that was unconstitutionally seized from the defendant and unconstitutionally used against him at his trial. It presents the issues whether if it is ever only harmless to violate the United States Constitution and whether in fact it was harmless here. Defendant Cooper was prosecuted and convicted for selling two bindles of heroine wrapped in a piece of brown paper bag to a police informer who is both unreliable and untrustworthy. At the trial, the prosecution placed this unconstitutionally seized piece of brown paper in the same exhibit as the two bindles of heroine and the other piece of brown paper within which they have been wrapped. He presented it before to the grand jury. The piece of paper was obtained after the police had set up this controlled narcotic buy. And on the appeal of this case, the Attorney General of the State of California argued to the District Court of Appeals that this unconstitutional evidence was highly relevant. Petitioner was hurt in the trial court by the use of this evidence. He was hurt also in the appellate court by the notion that violation of the constitution can be dismissed as harmless. I think a fair premise from which to start in this case is that prosecutors act rationally. The -- when they bring a prosecution against a man, they don't bring it if they believe he's innocent, they bring it because they believe he's guilty and that he'd be -- and that he deserves a conviction. And in introducing the evidence in that case, they've act on the assumption that that evidence will hurt him. There would be no reason for a prosecutor to bring in evidence in a case unless he felt that it would contribute to the conviction of a man that he assumed to be guilty. Why should an appellate court speculate that this decision of the prosecutor was harmless when the man's constitutional rights were violated not only by the seizure of the evidence but by the use of that evidence at trial.
Potter Stewart: Mr. Traynor, wasn't there a seed of marijuana or something like that also?
Michael Traynor: Yes, there was, Your Honor.
Potter Stewart: Is that an issue here?
Michael Traynor: That issue is not raised in a District Court of Appeals so I don't believe it is an issue here, Your Honor.
Potter Stewart: That's not; it's only the brown paper sack?
Michael Traynor: That's right, Your Honor. That piece of marijuana was unconstitutionally obtained. I think under the same premises but it is not issue on this -- before this Court.
Potter Stewart: There's no objection made at the trial?
Michael Traynor: There was an objection made but it was not raised in the appellate court and the objection in the trial court was not made on search and seizure grounds.
Potter Stewart: I see. So you -- you're view -- you concede that the introduction of that is not before us here in this case?
Michael Traynor: That's right, Your Honor. The -- I might point out the trial judge didn't think it was a much weight. We're right to argue this appeal again and I did argue it in the court below; I would have probably raised that issue. But I don't -- I can't fairly say that that's it before the court now.
Potter Stewart: Thank you.
Michael Traynor: This Court -- the petitioner here relies on the rule of the coerced confession cases and the many other cases that this Court has decided in which the violation of the constitution has not been considered harmless. For thirty years since Brown against Mississippi, this Court and the federal court in habeas court proceedings with judiciary records of the state courts and convictions obtained on the basis of coerced confessions. Here and in Miranda, this approach is totality of circumstances approach was rejected. The approach that the respondent asks this Court to take here would impose an even more unmanageable burden upon the federal courts and this Court on reviewing the facts in the records in each case. As the Attorney General of the State of California argued in the other case, what this rule requires is an examination of the entire record and the entire case and the evidence in each case. In the coerced confession cases, the issue and the burden of review was limited to the very small issue whether the confession obtained was voluntary. Here, the burden of review would be one of reviewing the entire record. In the coerced confession cases, the totality of circumstances approach which has now been rejected, there was on some cases, a legitimate purpose for going in and for the courts undertaking this burden, mainly, the purpose of helping the prosecution if the confession was voluntary, it often was a crucial piece of evidence and the man would -- and the man's conviction would be sustained. But here by hypothesis of the prosecution, the evidence has no value. They are not seeking the burden -- seeking the court to review the facts of cases to obtain utility of otherwise valid evidence because by their own hypothesis, the evidence is irrelevant. The State's arguments in its brief that the state courts can be expected to honor the Fourth Amendment is contradicted I think by its irresponsible argument that an application of a harmless error doctrine is a question of state law and not federal and cannot be reviewed by this Court or by the state court or by the federal court. It is also contradicted by their attempt to trivialize the Preston case. The Preston case is a crux of this case. There was violation of search and seizure of evidence from an impounded car and the state concedes in its brief that the vehicle forfeiture statute in the State of California did not itself authorize the search. It attempts to argue that the vehicle was in custody under that statute and that therefore the search was legal. These same facts were present in the Preston case. The State's argument is nothing more than attempt to evade and trivialize the Preston rule.
Speaker: Is there any case under the federal commentary rules laid down in view in federal cases (Inaudible) --
Michael Traynor: Your Honor in my brief I've cited a number of cases in this Court where a violation of the constitution has been ruled to be -- to require reversal, that rule of reversal.
Speaker: (Inaudible)
Michael Traynor: I haven't found -- you mean this is a --
Speaker: (Inaudible)
Michael Traynor: I have not found a case in this Court construing the federal harmless error statute to permit the dismissing the violations of the United States Constitution as harmless. In my review of the history of that legislation, some of which is reproduced in appendix B to my brief suggests that the harmless error federal statute was never intended to apply to violations of the United States constitution. The history is also reviewed in a very helpful case by Justice Rutledge in the Kotteakos case and the conclusion there is that the harmless error statute of Congress was intended to apply to breaches of etiquette or breaches of minor rules of evidence in the trial courts and not to violations of the United States constitution or to violations of important statutes. There was a statute --
Hugo L. Black: As I recall, that was not a court opinion, wasn't it?
Michael Traynor: Excuse me, Your Honor, that was --
Hugo L. Black: As I recall, that was not a court opinion.
Michael Traynor: The Kotteakos case? Yes, it was, Your Honor. This Kotteakos against the United States in which this Court reviewed the application of the harmless error rule. It involved the question of conspiracy in general and special charges and the error there was ruled on the facts of that case to be harmful and to require reversal.
Hugo L. Black: Yes, but the court prevailed?
Michael Traynor: Yes, Your Honor.
Hugo L. Black: It didn't hold it automatically, did it? It didn't make any difference how minor or trivial or insignificant the harmless error to the -- error was? The case had to be reversed, it could never be held as harmless error, did it?
Michael Traynor: I'm not sure it held that; I think on the -- in the Kotteakos case, Mr. Justice Black, that the court did review and tried to make a careful review of the record. And there was a dissent on that case by Justice Douglas on the ground that his review of the record, he felt there was -- it was harmless. I believe the court in the Kotteakos case did review the entire proceeding but contrast to that to a case in language they used with a violation they've -- they left aside a question of a violation of a constitutional norm or an important statute.
Hugo L. Black: But is it your position that any or in it and -- in any one trial, there is one error made and it's denying the constitutional freedom but without regard of weight, significance, comparison to all other evidence or anything else, that the case has to be reversed?
Michael Traynor: Yes, that is my position and that is the position of the petitioner.
Hugo L. Black: Is one of you going to argue on the basis that -- on the facts -- I hope that somebody on that side will not argue or get beyond that extreme to you and argues the other view.
Michael Traynor: Well, I'd like to turn, if I may, to facts in this particular case.
Abe Fortas: I suppose the position might be that there might be something so trivial that they don't amount to violations of the constitution. For example, suppose that the -- something were introduced in evidence that no relationship to the case whatever but somehow got into evidence but it turned out that it was illegally seized. And on theory, that would be a violation of the constitution but it would be so remote from the major thrust of the case that it would be pretty definite to say that a conviction ought to be set aside on that ground by the two ways of praising it perhaps, one is at -- in a particular case then (Inaudible) violation of the constitution and the other that it's harmless error?
Michael Traynor: Mr. Justice Fortas, let me, attempt to answer --
Abe Fortas: Well, would you take the -- you really mean that anything -- that if something happens in a case that's in violation of constitutional no matter how remote or unimportant or insignificant or trivial, that automatically it can have a conviction?
Michael Traynor: That's the result to which my argument leads and I would argue for that case and I've so argued in my brief. And let me answer, if I may, in two respects, your question Mr. Justice Fortas. The -- that type of case, I think will be the exception that proves the rule because the rule ordinarily will be that the prosecution's purpose will be to use evidence that will be harmful. But suppose for example, that instead of the brown piece of paper bag in this case that closely resembled the paper in which the bindles had been wrapped; that the police, a week after the man's arrest and without a warrant and not incident to the arrest, and without any danger or other justification for a search had gone to the man's house and taken the kitchen sink. That even in such a case, I would contend that the constitution would require a reversal. That type of example, if such a thing were allowed --
Abe Fortas: Well, that really is a kitchen sink position?
Michael Traynor: It would be, yes, Your Honor, would be. The very fact -- the police might be encouraged to do that, to ransack a man's home to obtain such evidence. And the very fact that the prosecutor thought it could get away with such frivolous evidence would reveal to me great reason for requiring a reversal in that case. And I think it is Your Honor (Voice Overlap) the exception that does prove the rule.
Byron R. White: Is this position essential for your case without -- can't you win this case on another basis?
Michael Traynor: Yes, Your Honor I -- the primary and first argument in my brief was that we should win this case on the fact.
Byron R. White: And that even if the harmless error rule is constitutionally permissible, you'd still win?
Michael Traynor: That's right, Your Honor, because an application of that rule denied due process to the defendant in this case. The facts and the reasons why we argue prejudice in this case are that this was an extremely weak circumstantial case against the defendant. If the prosecutor had thought that the observations of the police of this transaction between their unreliable informer and the suspect were sufficient, why did they go out a week after the arrest to search for more evidence and to ransack the car and obtain it? This piece of evidence and I think it's important to note that it was placed in the same exhibit as the two bindles of heroine and the other piece of smaller brown paper that the defendant was charged for selling. There would have been no reason to place it in the same exhibit had not the prosecutor intended the court to draw the inference that the two pieces of brown paper, one that wrapped the bindles of heroine and one that had been unconstitutionally seized, came from the same source, mainly the defendant.
Byron R. White: Well, how does the -- how does California verbalize this rule; that there's plenty of other evidence to sustain the conviction or that there's no or the result would not have been different had the evidence been 15.04 is that --
Michael Traynor: The --
Byron R. White: Do they have a specific formulation?
Michael Traynor: They have articulated the formulation, Mr. Justice White that a reasonable probability that the defendant might have achieved a more favorable result. Now by more favorable result can only mean an acquittal or perhaps a lower determination, for example, in a murder case.
Byron R. White: But more favorable result if the evidence hasn't been admitted?
Michael Traynor: If the evidence have not been admitted. More favorable to me means an acquittal, the man is innocent or perhaps, in a murder case, a conviction on a lower count, for example, manslaughter instead of first degree murder --
Byron R. White: And that --
William J. Brennan, Jr.: (Inaudible)
Michael Traynor: And perhaps punishment also, Mr. Justice Brennan.
Byron R. White: On that basis, it involves a prediction of what the jury might or might not have done.
Michael Traynor: In effect Your Honor, I think that's right. It asks the appellate courts to sit in the jury box and look at the case.
William J. Brennan, Jr.: Yeah, the appellate court doesn't itself say "well now look through the evidence shouldn't have been admitted but we're going to make a reassessment of the evidence ourselves and we say now that there was plenty of evidence to finding guilty beyond a reasonable doubt" We say that. That isn't what they do in California. Don't they say we do not think the jury would've come out any different?
Michael Traynor: That is what they say, I think, Your Honor; the latter. What they do in fact, I think a fair inference from some of the cases that I've listed in my brief, in the appendix is to convince themselves that the man is guilty.
Speaker: Well, is there any federal constitution reason why they shouldn't? They don't have to give him a jury trial?
Michael Traynor: That's right, Your Honor. This would apply in court trial or jury trial.
Speaker: Yeah.
Michael Traynor: And the --
Speaker: Well, supposing the federal -- supposing the California courts verbalized, as you say, they do in fact they say, "well, in applying this harmless error rule, we, the State Appellate Court, make our own independent review of the evidence. Forget what the jury would do and we think this man has been justly convicted. Is that present in the federal constitution?
Michael Traynor: Yes, I do.I think it --
Speaker: A federal question?
Michael Traynor: Yes, it's a very important federal question, Your Honor. Mapp against Ohio puts some teeth into the Fourth Amendment and the application kind of this kind of rule would take the bite out of this. The -- and the question whether a violation of the constitution is harmless presents a very important federal question and --
Speaker: No, I'm saying -- I'm not talking about that. I'm talking about the question as to whether -- Mapp didn't say anything about whether the states have to give a jury trial in a criminal case or whether they could -- the appellate court could review evidence without regard to what the jury might have done.
Michael Traynor: That's true, Your Honor. The Mapp case does not control this case. It established the exclusionary rule for the state courts. But I'm arguing here that the necessary implementation and ingredient requirement of that rule is that violations of it be accompanied by a reversal otherwise it's meaningless. And that it does present a very important federal question.
Abe Fortas: Mr. Traynor, would you really ask us to go beyond Kotteakos, aren't you?
Michael Traynor: Yes, I am, Your Honor. The Kotteakos case --
Abe Fortas: It does --
Michael Traynor: Excuse me.
Abe Fortas: As I read -- go ahead and --
Michael Traynor: The Kotteakos case reserved the question as I read the case of a violation of a constitutional norm or an important statute. It --
Abe Fortas: Well, I think it that it's more conservative than your position in terms of a fair intendment of the court's opinion. Its here at page 765 that one cannot say with fair assurance if the pondering all that happened without stripping the erroneous action involved that the judgment was not substantially swayed by the error, it's impossible to conclude that substantial rights were not affected. Now there are a lot of knots in there. But in substance, what he is saying, is that you've got to be sure and this is on 764, you must be sure that the error did not influence the jury or it had but a very slight effect. That it's not the absolute rule for what you are contending, as I read it.
Michael Traynor: That's right, Your Honor. It is not. And I think they've -- they reserved the question of a violation of whether it should be an absolute rule. The one -- other perhaps formulation of that language would be whether there's -- whether a sensible and honest judge or jury could've honestly entertained the reasonable doubt as to the man's guilt or innocence below. As if there was a chance to that then he should obtain a reversal of his conviction.
Abe Fortas: That'd be on the whole record X, this particular evidence.
Michael Traynor: That's right, that's right, Your Honor. Your Honor, I have saved a little time for rebuttal and I would -- I've presented a confrontation question in the brief and I rest on that. I maintain it and do not abandon it. And in conclusion, would like to say that a violation of the United States constitution isn't harmless. It's not a legal technicality. It can't dismissed into something lightly and trivial. And in fact, the defendant in this case was caused substantial harm by the violations of the constitution and the notion that the violation of it could be washed away as harmless. And without reason, we respectfully submit Your Honors that the judgment below should be reversed. Thank you very much.
Earl Warren: Mr. Lenoir (ph).
Albert W. Harris, Jr.: Mr. Harris --
Earl Warren: I beg your pardon.
Albert W. Harris, Jr.: Mr. Harris. I'm Albert Harris, Mr. Chief Justice. In this particular case --
Earl Warren: Oh, I have a -- oh, I have it wrong -- oh yes, of course. That was a -- the wrong case. I'm very sorry Mr. Harris.
Albert W. Harris, Jr.: Sir, I'm sorry too. Mister Chief Justice, may it please the Court. This case as one on the facts then the harmless error rule might as well be dumped and jettisoned specifically and definitely and we'll forget about it. We submit that the error here was harmless whether you apply the California rule or whether you apply the rule announced here in Fahy versus Connecticut. Now if I may, Your Honor, I'd like to touch on a point that Mr. Chief Justice Warren raised, the argument of the preceding case, and that was the suggestion that the state, the Attorney General that argued that this evidence that was illegally obtained or so the District Court of Appeal of California held was both relevant and important. I think, I'd like to clarify that, if I may, Your Honor, at this --
Earl Warren: Yes.
Albert W. Harris, Jr.: At point and I turn to page 253 in the record filed in this Court and that includes a portion of the brief filed by the Attorney General of California in the appellate court and this was included at the request of the appellant, Mr. Cooper. You'll note the heading of the argument, its part two of the brief, the whole brief doesn't include it and the heading is this "even assuming the scrap of paper was illegally seized --"
Hugo L. Black: What page is that on?
Albert W. Harris, Jr.: That's on page 253 of the printed record, Your Honor. Even assuming the scrap of paper was illegally seized, its admission was not prejudicial error and what follows is the argument addressed to that proposition --
Hugo L. Black: I don't find that -- oh, you -- you're reading the title of it --
Albert W. Harris, Jr.: Yes that's correct Your Honor.
Hugo L. Black: All right, I see, yes.
Albert W. Harris, Jr.: You'll notice the Roman numerals two at the --
Hugo L. Black: Yes, yes, yes.
Albert W. Harris, Jr.: -- start and that's what this part of the brief is addressed to.
Hugo L. Black: Yes.
Albert W. Harris, Jr.: And this was an argument made in that court as we're arguing here that the error was not prejudicial assuming there was any error. We raised in the brief and I'd like to touch on that point if I have any time, the argument that the search here was not unconstitutional at all. In fact, it was a constitutional reasonable search and the evidence is admissible but I don't want to get off under that right at the moment. But we argue that it's true below that assuming there was an error, that error was not prejudicial. Now, we did say, turning over to page 254, that the scrap of brown paper was also highly relevant, that's about two thirds all the way down the page. And there we were drawing on an analogy where the decision of the California Supreme Court in People versus Harem. We did not say and -- Your Honor, and I don't think we meant to say any place that this evidence was important in the sense of having great weight in the disposition and decision of the case. We did say it was highly relevant and I stand by that, it was relevant. We don't think it had great weight in effect of the outcome of the case and I think those are compatible positions to please the court. Now, it's argued that the District Attorney puts evidence in. He thinks it's relevant and he thinks it's going to contribute to the conviction. And consequently, who was he to come up here and say that it's not or that it's only a harmless error. Well, that's all right if we're penalizing the District Attorney. But that is not what the appellate court set for, they set to do justice and the constitution of California imposes that duty upon them. Now, there's no question in my mind that the District Attorney believe that this evidence was relevant and he believed it was admissible and he believed it tended to prove guilt, otherwise, he wouldn't have put it in. But that's true in every case; that's true in every case, and the harmless error rule presumes that the evidence will be relevant. If it isn't relevant then what is it doing in the case to start with and in itself would be error to admit it. I think there's no question that if -- that the rule presupposes some degree of relevance; that it does tend to prove guilt. But that's not the complete answer because if it were, then the rule would be reversal and not a careful consideration of the record and the impact of the evidence. Your Honors have made it clear, going back to Kotteakos and even clear as in Fahy versus Connecticut, if you please, that you will not take that approach. The simple approach, if it was received in evidence and relevant than we'll reverse. You didn't do that in Fahy against Connecticut. You didn't do that in Kotteakos which involved a different problem but nevertheless the discussion I think is relevant.
William J. Brennan, Jr.: May I ask you if that's the only piece of evidence that can be viewed involved in there?
Albert W. Harris, Jr.: Yes, it is, Your Honor. In this particular case --
William J. Brennan, Jr.: No one has stated in short, crisp term just what the fact is and what it is, you applied in the (Inaudible), would you mind doing that?
Albert W. Harris, Jr.: I'd like to do that very much, Your Honor. Now if I can lay the basis for it in just a moment or two. Joe Cooper was charged with selling heroine in Richmond, California.
William J. Brennan, Jr.: Heroine?
Albert W. Harris, Jr.: Heroine, Your Honor, the narcotic drug.
Speaker: (Inaudible)
Albert W. Harris, Jr.: The evidence as presented by the people very briefly was like this. An informant had agreed to call Copper, make arrangements to buy heroine. He -- the evidence is that the informant dialed the number, an agent over listening to the call. This was Cooper's telephone number. That is the place that he was residing. A lady answers the phone and the informant asked for Joe and Joe came to the phone. An agent overheard the conversation. He recognized Joe Cooper's voice over the telephone. Informant says "How about a dukes?" And this is the parlance of that particular business. Joe said "All right" And the informant, they said or he said, "Where"? And the informant said "Over at Newels (ph) Market" Now at the same time as the informant for placing this call at the instructions of the police and with the police officer right there hearing it, talking to Cooper, two other agents, supposing a federal agent were out at Cooper's residence across the street and down the block. They observed a man that fit the resemblance of Cooper. They were a couple of blocks away and they couldn't be entirely certain, come out and get into his car, it was a car he customarily drove. Sure enough, he turned out headed towards Newels Market. In the meantime, the officer -- officers who were with the informant and who placed the call took him up near Newels Market. Well, they didn't want to walk up and drop him off in front of the place so they dropped him off a block or two away and one of them followed him and there were two other agents who were staked out in other positions. Now they've -- the purpose here was to keep this informant under continual observation. They had searched him back at the police station. So that they could exclude the possibility that if he returned with heroine, he got it from anybody except Cooper, assuming he did in fact contact Cooper. If they couldn't exclude the possibility that he got it from anyone else, they would not be satisfied Cooper had sold him the heroine. It's not only a matter of evidence for the court ultimately. It's a matter of proving these to themselves because they're not going to take the informant's say so. And they did the best they could to keep him under surveillance. The informant without going into all of the detail about that, and there's some argument about, well, a couple of witnesses said looking at the car, it appeared to be Cooper and a couple of them did. There were several identifications. One of the agents, as he walked up to the front of Newels Market saw Cooper turn in, turn of from Cutting Boulevard and head towards the parking lot. He identified Cooper positively driving the car, this was Cooper's car. They -- most of them had seen him before, observed him around Richmond. Two of the officers had the informant in sight at all times from leaving the federal agent's car walking over to the market, going in the lot, contacting Cooper. There were some conflicts and Mr. Traynor has pointed them out with great detail. The Defense Attorney went through every possible detail of the observation and there were some inconsistencies but that all goes to the question of sufficiency and it goes to the trial judge. In the event, the evidence, there is sufficient evidence that he was observed at all times and Mr. Green, who was the informant returned to the car, a federal agent waiting for him, gave him two bindles of heroine. Now, the bindles are white paper wrapped around a white powder which is heroine and which was ultimately analyzed and determined to be heroine. These two white paper bindles were wrapped in a piece of brown paper, a piece of grocery sack paper. And this is the object that was handed to the federal agent in the car. Now, that is not the piece of brown paper that we're talking about or that we're concerned about. There is no problem, I think, before this Court as to the admissibility of the heroine, the paper in which the heroine was contained. I'll get to the piece of brown paper in just a minute. But this is what the case was all about; it was whether Joe Cooper sold heroine to Green, the informant. They had given the informant marked money as their common practice. So that if they picked up whoever sold him the heroine and found the money on him, it would tend to corroborate the fact of the sale.
Abe Fortas: Did the informant testify?
Albert W. Harris, Jr.: No, he did not, Your Honor. The -- on any event, Mr. Cooper -- there was an attempt to follow Mr. Cooper after the sale. They weren't certain it was heroine at this point. They later ran a field test on it down at the police station. So they didn't arrest him. As a matter of fact, they tried to follow him but he got away. They staked out the car in the downtown Richmond, and about two to three hours later, arrested Joe Cooper when he returned to the car. At that point, according to the agents, he said, "there's marijuana or marijuana cigarettes or something to this effect under the visor of the car," pointing to the car.
William J. Brennan, Jr.: Who said that?
Albert W. Harris, Jr.: Mr. Cooper, Your Honor, the defendant. Well, it didn't turn out that there ever was any marijuana in there. But at the time, apparently he was trying to distract the officers. They'd come up to him one on one side, one to the other. Now, when -- after he made this comment, they looked in the car, he put over -- took his left hand and went over his shirt pocket, pulled out a small object wrapped in brown grocery sack paper or in brown paper, anyway.
Hugo L. Black: Is that the paper?
Albert W. Harris, Jr.: That is not the paper, Your Honor. We haven't come to that yet. This he popped in his mouth. An agent attempted to grab his hand and the -- both hands went into Mr. Cooper's mouth and he bit and he bit hard and he inflicted serious injuries on the finger of the agent. Well, he was charged with that too but I won't go into that side of this case. But we still haven't come to the piece of brown paper although we have two at this point. But neither are involved here and there's no question about the admissibility of the evidence raised here. Well, he goes back to the station and the next day, he's questioned and there's no argument here about any problem in the questioning and he admits that he put something wrapped in brown paper in his mouth at the time of his arrest. Again, we're not -- to the evidence we're talking about. Well, in all of these things that I've touched on I'd intended to go onto greater details to show the accuracy of the evidence in the following of Mr. Green to make the buy and all of that but I don't want to pursue that on great length.
William J. Brennan, Jr.: Is there anything to finally get to the piece of brown paper (Voice Overlap) --
Albert W. Harris, Jr.: Yes, Your Honor, we're going to finally going to get to that. Now, the piece of brown paper that we're talking about here; first is mentioned by Agent Broom who was more or less in charge of this operation. He is called a witness stand by the people. He identifies the two bindles and the brown paper they were wrapped in which constituted the sale of heroine that -- this is all about. That is not the brown paper. He identified that. Now, the defense attorney takes him on cross-examination and he says to him, "Well, now, what about this other piece of brown paper"?
William J. Brennan, Jr.: Which other one?
Albert W. Harris, Jr.: The one we haven't gotten to yet. But this is the way the record reads, Your Honor and I'd like to take it in this way if I may. The defense attorney first mentioned that he said this, "Now perhaps then -- this is at page 114 of the record. Now perhaps I forgot about this yesterday or didn't see it or didn't perhaps see that, "Where does this piece of paper come in"? Now we can't tell in this what he was referring to but --
William J. Brennan, Jr.: Who says that?
Albert W. Harris, Jr.: The defense attorney. Or has it been described by any of the witnesses? Answer by Agent Broom, "This is not yet been described or brought up, there's not a word about it as you go, uh, through the trial up to this point" So, on the re-direct examination --
Speaker: What was the (Inaudible) --
Albert W. Harris, Jr.: Pardon me, Your Honor.
William J. Brennan, Jr.: 114?
Albert W. Harris, Jr.: At 114, also set out in our brief in detail Your Honor as far as the pages go.
William J. Brennan, Jr.: Oh, yes.
Albert W. Harris, Jr.: On a re-direct examination, now, the district attorney in his direct examination didn't mention this piece of brown paper that we're going to come to. He didn't mention it at all. The defense attorney interjected the question on his cross and I don't claim any invited error or anything of that kind but it was first mentioned by the defense. On a re-direct, the district attorney comes back to us, and that's at page 130 of the transcript of the record on appeal here. And then he says "I'll show you this piece of brown paper and ask you if you can identify that" Mr. Broom says, "That's the piece of paper that I took to Mr. Reeves for possible comparison that I found at the glove compartment of Joe Cooper's Oldsmobile" Well, when did you find it"?
William J. Brennan, Jr.: Is this it, the --?
Albert W. Harris, Jr.: That's it, we finally got to it. And what happened was, about a week after and that the date isn't too certain, and was about a week after the arrest though. Agent Broom, for some reason, the reason isn't clear anywhere, went back to Joe Cooper's Oldsmobile which had been impounded. It wasn't actually his but he was -- he had possession of the car.
Byron R. White: Why was it impounded?
Albert W. Harris, Jr.: Under the California law, Your Honor, which requires the seizure and forfeiture of an automobile used in the narcotics traffic.
Hugo L. Black: So it was a -- as far as you know it was legally in possession of the police?
Albert W. Harris, Jr.: It was Your Honor. Have been in the possession of the State pending proper proceedings to forfeit the vehicle.
Speaker: Is that 37.18 --
Albert W. Harris, Jr.: Yes, Your Honor, I'd -- would come to that in a few minutes if I may but I'd like to cover what this is we're talking about. He went to the glove compartment, I know there's no -- where evidence, he ransacked the car. He opened the glove compartment, and found it, this piece of brown paper. And, now what was it? The court describes it over on page 131 of the record. Well it's a piece of brown paper approximately three by five inches contained therein. And it was marked as a part of a same exhibit that contained the paper in which the heroine had been wrapped --
Byron R. White: When was it, it marked?
Albert W. Harris, Jr.: -- two bindles.
Byron R. White: Never had been introduced yet.
Albert W. Harris, Jr.: Not at this point.
Byron R. White: And when was it marked?
Albert W. Harris, Jr.: Well, I presume it was marked at about at this point, Your Honor.
William J. Brennan, Jr.: Well, this is the first -- apparently had been marked early in the trial.
Albert W. Harris, Jr.: No, I think what --
William J. Brennan, Jr.: But you have a procedure, the state mark, with marks all of the exhibits?
Albert W. Harris, Jr.: No, we do not have a procedure like that. But this piece of paper had been introduced before the grand jury which is entirely a separate proceeding and the brown paper that the heroine had been wrapped in plus this brown paper were both put in the same envelope and I think at that time and the heroine was in there too with the bindles. And that's how I think it ended up in the same exhibit. Obviously, the defense attorney had to see it some place because he wanted to know what it was.
Speaker: How big is the piece of brown paper, was it?
Albert W. Harris, Jr.: Three by five inches, Your Honor. So, we've got the brown paper.
Hugo L. Black: Well, I suppose he gathered his information at the time -- that is information from the transcript of the grand jury. They do get a transcript (Voice Overlap) --
Albert W. Harris, Jr.: Yes, they do, Your Honor. That's correct, he may -- that's correct. That's correct, he may have done that. Now, later on --
Abe Fortas: Where does it say -- where was this received in evidence, whereabouts in the record?
Albert W. Harris, Jr.: Well, we start at page 130 Your Honor where it is marked as a part of exhibit four. And then over on page 172, exhibit four is received in evidence.
Speaker: Went into evidence -- went in the long -- in the other brown paper (Inaudible)?
Albert W. Harris, Jr.: That's correct, Your Honor.
Speaker: In the same envelope?
Albert W. Harris, Jr.: I believe so, yes sir. Now let -- then another interesting point here is that the -- when it went into evidence was right after the people had called a criminalist who identified -- who testified that the heroine was heroine, that is the powder was heroine.
Speaker: May I suggest that's there also the (Inaudible) paper bindles are referred to as white?
Albert W. Harris, Jr.: Yes sir.
Speaker: So that what we had down before us, put the white paper, this was brown paper and the heroine itself, all in one envelope?
Albert W. Harris, Jr.: In two pieces of brown paper.
Speaker: Two pieces?
Albert W. Harris, Jr.: That's correct, Your Honor. One, that the paper bindles had been wrapped in at the time of the buy, the other, the one that was found in the glove compartment. And it -- the interesting thing is that when this exhibit was received in evidence, the criminalist identified the bindles and that they contained heroine and he'd been given them and so forth and there's no mention at that particular point in the transcript of this other brown piece of paper but it was no doubt it was received in evidence together with the others. Well, now that, Your Honors, is the last mentioned, I think I'm right about this, and if I'm not I'll be corrected. That is the last mention of that piece of brown paper until Joe Cooper is up in the District Court of Appeals.
Abe Fortas: Can we be sure that the heroine and the paper in which it was wrapped including the brown paper in which it was wrapped would've been received in evidence as exhibit four if that material had not been connected to the appellant Cooper by means of the additional piece of brown paper?
Albert W. Harris, Jr.: Your, Honor, that additional piece of brown paper had nothing whatever to do with connecting Mr. Cooper to that heroine.
Abe Fortas: Oh, I mean, you say --
Albert W. Harris, Jr.: It did not -- didn't have much. It had nothing whatever --
Abe Fortas: (Voice Overlap) of emphasis upon it, it seems to me that the brown paper was the same as the brown paper wrapping the heroine and that the brown paper was the same as the brown paper that Mr. Cooper swallowed.
Albert W. Harris, Jr.: In the brief it said Your Honor, that it was the same -- this is the brief in the District Court of Appeals that it was the same type of paper.
Abe Fortas: And they --
Albert W. Harris, Jr.: It was never suggested anywhere that all of this pieces of brown paper came from the same source.
Abe Fortas: And the District Attorney in his argument in the District Court of Appeals according to appellant's -- the petitioner's brief here says that this is highly relevant?
Albert W. Harris, Jr.: That's correct, Your Honor. That -- the Attorney general made that statement that it was highly relevant. I think it did tend to show this. Oh, I could come to that in just a moment. That was the last mention of that brown paper in the course of the trial.
Hugo L. Black: How long was the trial?
Albert W. Harris, Jr.: Oh, it lasted, I guess, a day or two, Your Honor. It was a court trial; was not a jury trial. There was no argument at the close of the evidence as there frequently is not at the -- in a court trial. At least in California, the evidence there, it is. The judge when he found Joe Cooper guilty of selling heroine and that's what this case is all about, stated very briefly, we've quoted it in our brief and I won't quote that same language but what he felt to be the convincing evidence, the defendant at the close of the defense of the People's case moved for a dismissal on the ground that there was a reasonable doubt about the state of the case at that moment. Pointing out for example, the informant hadn't testified. And the judge said this at page 208 of the printed record, "Actually, I see no reason, Mr. Moran", that was the defense attorney, "This believe at this point the basic testimony of the officers. I have no doubt that the defendant was out there. I have no doubt that Green was out there, the informant. I have no doubt that the contact was made. The two bindles are here. Agent Lee says they were turned over to him by Mister Green after the contact. As in all cases, on some of the details are differences of opinion. As a matter of fact, it would be most unusual if this were not so.
Hugo L. Black: What page is that?
Albert W. Harris, Jr.: That's at page 208 of the printed record, Your Honor. And then there's a very similar statement over at page 242 of the printed record. This is after the defendant had taken the stand. And what does the defendant testify to? He testifies to an alibi. He says he was not here at all. He says he didn't receive a phone call. And in fact, he was with a lady he knew and they've gone out to North Richmond to visit a -- among other people, to visit her father. But no witnesses calls in support of that position. And it stands simply on his testimony. On page 242, the judges heard the evidence. Bear in mind there's no jury, so it's strictly the judge deciding the case. Well gentlemen, there's no reasonable doubt or otherwise in my mind that the phone call was placed as testified. And that the officers were outside the defendant's aunt's home. That he answered the phone there. That he did go over to Newels Market and was identified there and met Mr. Green and Mr. Green thereafter did turn over the bindles in evidence to Agent Lee and they were found to be heroine. And the court will find the defendant guilty. No mention of that brown paper later found in the glove compartment, whatever.
Hugo L. Black: Is that brown paper up here?
Albert W. Harris, Jr.: No, Your Honor. It is not. As a matter of fact, that entire exhibit was destroyed. There isn't anything in the record about it but it was destroyed sometime after the District Court of Appeals had resolved the case. But we don't have it here. We do have the description now; it was described in the record as somewhat larger than the piece that the heroine, the bindles of heroine was wrapped in, somewhat larger piece of brown paper. There was never any evidence that, for example, that they'd matched the places where it was torn to indicate that it was -- that would -- had been torn from one sheet.
Hugo L. Black: Is this the sole, single constitutional error on which the petitioner relied?
Albert W. Harris, Jr.: That he relies in this Court Your Honor?
Hugo L. Black: Yes.
Albert W. Harris, Jr.: Well, he also raises a question of confrontation, a failure to call --
Hugo L. Black: A what?
Albert W. Harris, Jr.: A question of confrontation, a failure to call the informant as a witness. But this is the only item of evidence that he claims to constitute a constitutional error. I think that's a fair statement. Now, we've contrasted in our brief the situation in this case and Fahy against Connecticut, for example, where Your Honors have looked through the evidence in detail. You didn't reverse simply on the basis that there was illegally obtained evidence but you went through it on detail. You can do that and I hope you will with this piece of brown paper. It doesn't corroborate, it doesn't tie in, it doesn't do anything as to the phone call, as to the observations of Mr. Green, as to the instrumentality, the heroine itself. And we say that --
Hugo L. Black: What then would you think was the purpose of the District Attorney in introducing it? I saw what?
Albert W. Harris, Jr.: I think he thought it would tend to prove guilt.
Hugo L. Black: To prove guilt?
Albert W. Harris, Jr.: Yes, Your Honor.
Hugo L. Black: Yes, but in what respect would it bear upon --
Albert W. Harris, Jr.: Well --
Hugo L. Black: -- these actions?
Albert W. Harris, Jr.: Yes, Your Honor. The bindles of heroine are wrapped in a -- in grocery sack paper.
Hugo L. Black: So the ones that are in evidence?
Albert W. Harris, Jr.: That's the ones that are in evidence.
Hugo L. Black: Yes.
Albert W. Harris, Jr.: But there's no quarrel about that.
Hugo L. Black: Yes.
Albert W. Harris, Jr.: To find Mister Cooper a few hours later with a piece of brown grocery sack paper in his car, and we knew he made the sale out of the car.
Hugo L. Black: Of the same kind in description as the brown paper --
Albert W. Harris, Jr.: Of the same general kind. I think it does --
Hugo L. Black: A general kind or was it introduced for the purpose of showing it was the same kind of paper?
Albert W. Harris, Jr.: Well, there wasn't any discussion of it, Your Honor. Bear in mind there was no objection.
Hugo L. Black: What did they introduce it for but wasn't the same kind or if he didn't --
Albert W. Harris, Jr.: Oh, it was the same kind. It was --
Hugo L. Black: If he did -- if he didn't think --
Albert W. Harris, Jr.: Yes.
Hugo L. Black: -- it was the same kind.
Albert W. Harris, Jr.: It was the same kind. It was a grocery sack paper.
Hugo L. Black: Yes, he wouldn't mislead the jury or the judge by trying to introduce some paper --
Albert W. Harris, Jr.: No, it was the same.
Hugo L. Black: -- for the purpose of connecting, it wasn't the same kind in his opinion, would he?
Albert W. Harris, Jr.: I wouldn't think so. It was the same kind of -- it was grocery sack paper that's what it was.
Hugo L. Black: Yes.
Albert W. Harris, Jr.: And to find Cooper in --
William J. Brennan, Jr.: And you say there was no objection to this seizure?
Albert W. Harris, Jr.: There was no objection on illegal search and seizure grounds. The only objection was that there was an insufficient chain, that is, that the People hadn't shown custody from the point of seizure to the point of introduction into evidence because it was left with the grand jury.
Hugo L. Black: When did the --
Albert W. Harris, Jr.: For a while.
Hugo L. Black: -- objection first come to --
Albert W. Harris, Jr.: In the appellate court, Your Honor.
Hugo L. Black: What?
Albert W. Harris, Jr.: In the appellate court. And the appellate court had found that there had been a change of the law between the time of the trial and the hearing of the appeal so that the defendant could properly raise the objection under California law. But there was no objection on in -- under reasonable search and seizure ground at all at the trial to this evidence.
Speaker: (Inaudible)
Albert W. Harris, Jr.: Under a California law Your, Honor, that's correct because there was a change in the law in the judgment of the District Court of Appeals.
Speaker: So I gather (Inaudible) --
Albert W. Harris, Jr.: Well, I think it's -- not in the sense that we would say you couldn't entertain the question or something like that. In the -- in weighing the prejudice, I think you might very well consider.
Speaker: (Inaudible)
Albert W. Harris, Jr.: I'm -- I am just saying, Your Honor that in weighing the prejudice of this evidence, you might take it into account that the defendants and his attorney didn't complain of any unreasonable search and seizure. I don't say what weight you give that. We think on a fair appraisal of this evidence, the whole record has been pointed out here that this was not prejudicial under the Fahy test. The California District Court of Appeal applied the Fahy test and held it was not prejudicial under Fahy as well as under the California test. Now, whether you -- whether it had to do that is quite a different question but they did.
Speaker: What did they hold as to the search itself?
Albert W. Harris, Jr.: They held that was unreasonable, Your Honor.
Speaker: It was an unreasonable search?
Albert W. Harris, Jr.: Yes sir.
Speaker: And therefore unconstitutional?
Albert W. Harris, Jr.: That's correct. We have argued in out brief at some length and I see my time is just about out. So I'll be --
Potter Stewart: Just before you leave that, is it clear that in so holding, they were relying on the federal constitution rather than the state constitution?
Albert W. Harris, Jr.: That is correct, Your Honor. The opinion is very clear that they're relying on the Fourth Amendment, United States Constitution.
Potter Stewart: Right.
Albert W. Harris, Jr.: So we're asking this Court to reconsider or to consider that question if you -- if you feel that the harmless error rule was -- can't be applied here. If you think you have to get to the search and hold the search was a reasonable search even though it was several days after the arrest, even though the car was in another place. And we've cited authorities in support of that proposition. And we don't think it's any evasion of anyone's rights under the Fourth Amendment and we have substantial support in the Court of Appeals, the federal -- the Circuit Courts, and I'll submit the other points, Your Honor.
Speaker: How do you (Inaudible)?
Albert W. Harris, Jr.: Well, we distinguish it this way, Your Honor, Bob Preston held was that that search under those circumstances was not incident to the arrest. And that was -- we -- in our view a very sound holding, correct holding. We don't argue here that the search was incident to the arrest at all. We argue here that that vehicle was in the lawful custody of the State of California having been seized pursuant to the narcotic forfeiture law although it could've been seized as an instrumentality and have been held as evidence. We submit that when a car is held in the lawful custody of the state, the state may make a search of that car without getting a search warrant and that the search is not unreasonable. We apply --
Speaker: I know it's in their law and (Inaudible)?
Albert W. Harris, Jr.: Well, there are number of decision as the Maryland decision we've cited and the Federal Court of Appeals decision that have followed this reasoning. And we think a very sound and urge the court to --
Hugo L. Black: Was the questioned car not in the lawful custody yet?
Albert W. Harris, Jr.: Well, it hadn't been seized, Your Honor, and I doubt in a sense that it was in lawful custody, that is, these men were suspected of committing vagrancy, that's all. Now, you don't seize a car because you suspect somebody is guilty of vagrancy. There's no authority for it that I know of. Certainly not in California and I don't know of any in that state where the Preston case arose.
Byron R. White: What's the differenced between the -- this case, let's assume that the police arrested bank robbers that are coming out of the bank, they have the car there and the -- they have -- they arrest them and the -- they -- the police officer, when a police officer drives down to the station house with the -- within the car and then they searched it down at the station in the custody of the police. That's a different situation in here, I suppose, where you really are seizing the car and are claiming it for the state.
Albert W. Harris, Jr.: That's correct, Your Honor.
Byron R. White: Is that your point?
Albert W. Harris, Jr.: Well, we would distinguish it from that. That's not to say that that search would necessarily be a bad search as Your Honor has mentioned. But that issue isn't really before us because of -- before you because that -- this car was seized under the forfeiture law. And in the lawful custody of the state, I think, if there's any question about that then you have quite a different problem. But here, the car was in the lawful custody of the state and we don't think was any evasion of Mr. Cooper's rights to look inside it.
Hugo L. Black: Well had the state --
Albert W. Harris, Jr.: Without a search --
Byron R. White: Had the state already actually seized it?
Albert W. Harris, Jr.: Yes sir.
Byron R. White: And stated that was the reason?
Albert W. Harris, Jr.: Well they seized it, I don't know that they stated anything, Your Honor, about it. They seized it and they've put it in a garage.
Byron R. White: Well, is that (Voice Overlap) or not?
Hugo L. Black: Did they start the proceeding?
Albert W. Harris, Jr.: They did in due course; they hadn't at the time of this -- of the search I believe. But they did in due course start the proceedings to forfeit the vehicle, that's correct.
Speaker: Well, I suppose the way to start it is the way that normally the way they'd start proceedings as to seize the car and then do something about it?
Albert W. Harris, Jr.: That's right and then a civil action is filed in the superior court in California.
Byron R. White: Is there authority to seize before the civil action is filed and before the conclusion of the seize?
Albert W. Harris, Jr.: There certainly is, Your Honor, authority to seize.
Byron R. White: What does the law say?
Albert W. Harris, Jr.: You have to have a duty to seize it at the time you find that the car was used in the transportation of narcotics. And then you have a duty although it's been interpretedly directed.
Byron R. White: What if they police seized it? What the police did as -- and the owner had said, say, filed an action for a (Inaudible). Who wants the car? And he says there's no action filed. You can't really seize my car until they conclude the guilty of -- until the seizure proceeding is concluded and you've proved it. Now what's the answer to that?
Albert W. Harris, Jr.: Well our procedure, Your Honor, doesn't -- it wouldn't require an action by him. The state has to file an action within, I think, its fifteen days under the controlling statutes that we've referred to here.
Byron R. White: But there is --
Albert W. Harris, Jr.: The state has to file the action.
Byron R. White: There is statutory authority for seizing the car before action?
Albert W. Harris, Jr.: Yes, there is, Your Honor.
Hugo L. Black: Where was it? Where was the car?
Albert W. Harris, Jr.: The car was parked down at Seventh and McDonald in Richmond.
Hugo L. Black: What is that?
Albert W. Harris, Jr.: That's a downtown street corner, Your Honor, was parked in a parking space.
Potter Stewart: Mr. Cooper (Inaudible) of a search?
Albert W. Harris, Jr.: No, that's not. It had been removed to a place called the Beacon Toaster Service where it was being held. Then it was ultimately later removed over to San Francisco under this memorial garage. But that's the normal procedure.
Hugo L. Black: When did the state -- where was it supposed to be placed where -- (Inaudible) the state have?
Albert W. Harris, Jr.: Well certainly by the time it was at Beacon Tow Service at the time of the search. Pardon me?
Hugo L. Black: Is that where it was searched?
Albert W. Harris, Jr.: That's where it was searched, yes sir; where they found the brown paper we're concerned about.
Hugo L. Black: Who took it there?
Albert W. Harris, Jr.: I don't think the record is -- I don't think the record shows that, Your Honor. But the presumption is that the officers of the state took it as it were their duty so to do.
Byron R. White: Well the defendant didn't have a say in that, did he?
Albert W. Harris, Jr.: I'm sure he didn't, Your Honor. But it wasn't his car; but he was using it; it had been loaned to him.
Hugo L. Black: You'll -- you sanctioned (Inaudible) and that point is that (Inaudible) has been still in the possession of the defendant at least insofar as their right to (Inaudible). While here, this was in the possession of the state under a claim and then used by an unlawful purposed.
Albert W. Harris, Jr.: That's correct, now let's -- that's correct Your Honor. It might also be in the possession of the state under some other theory, for example, to hold it as evidence in the case. Then it will be in the lawful custody of the state and could be examined in our view when the state called it was --
Hugo L. Black: Well, that would be a --
Albert W. Harris, Jr.: -- proper to do it.
Hugo L. Black: That would be that would be a different -- the mere fact that you wanted to use it for evidence.
Albert W. Harris, Jr.: Well, that is --
Hugo L. Black: Oh, it seems to me quite a difference from the -- if you were claiming if it's the state only that the impounding of -- forfeited vehicle.
Albert W. Harris, Jr.: Oh, we don't say the state owned it, Your Honor. We say it was in lawful custody. The state wouldn't own it until such time as the narcotic forfeiture action has been tried and concluded. This is a civil action.
Hugo L. Black: But there's no pending -- as a part of the state's claim to forfeit?
Albert W. Harris, Jr.: That's correct, Your Honor. It's in lawful custody pending determination of that question.
Hugo L. Black: Does the law there provide -- prevail for a car?
Albert W. Harris, Jr.: No, it doesn't, Your Honor. The car is -- the car stays in the custody of the state under 11611 of the Health and Safety Code and there's no provision for releasing it.
Earl Warren: Well, Mr. Harris, does your argument lead us to the conclusion that wherever a car of a narcotics suspects is seized, that there's no necessity for a search warrant thereafter because it's legally in the possession of the state under you're seizure procedure?
Albert W. Harris, Jr.: I think that any -- I think that's substantially it, Your Honor, with the -- I might state this qualification that it has to be seized under such circumstances that a search would have been permissible at that time. And in a narcotics offense where the narcotics were sold from the car, it would have been perfectly proper to search this car at the time of the arrest under anybody's view of the law. And we say that the fact it was searched a few days later, it having come into the lawful custody of the state and the defendant having no right to its return at that time, then the search is not unreasonable within the Fourth Amendment.
Earl Warren: Very well.
Albert W. Harris, Jr.: Thank Your Honor.
Earl Warren: Conclude your argument.
Michael Traynor: Mr. Chief Justice, may it please the Court. The portion of the story of this case that was related to you by the Attorney General was fairly stated but it's not the complete story in this case. This case is a very weak factual case. It began when the federal agents started the eavesdropping on the defendant's home and turned up no evidence of any sales of narcotics. The next step the police took in this case was to arrest at dawn an unreliable and untrustworthy informer and subject him to several hours of interrogation. At the conclusion of which, he agreed to act for the police as a participating informer and what is commonly as a police-controlled narcotics buying. The two officers who were stationed outside the defendant's residence only said that he took the description of the defendant, that the man who came out of the house. One of those officers said the man limped. The other officer said he'd walked fairly normally. There was a discrepancy at the outset in their physical identification. The mark money that was given to the informer as one of the ingredients of trying to tie the sale to this defendant was never found. The other ingredient of trying -- that the officers are trying to tie this sale to the defendant was to have him supervise and constantly observe the transaction. This attempt failed. Agent Alameda, who was stationed down at the market, lost sight of the informer and the suspect during the crucial two to three minutes of transaction occurred. The two other officers were stationed at a point more than a hundred yards away. Their view was obstructed in part by a passing and parked cars and they also conflicted on the very important part of their testimony. One of them placed the informer inside the car on the right hand side. The other one placed the informer had to be standing outside the car at the driver's side. Mrs. Galley (ph), who is the aunt of defendant that was home, they've tried to place him in residence with regard to the phone call on re-direct examination, was asked about the phone call. She said, "I've answered the phone and I've told him that only the girls that would be calling him." In this case, we had a testimony that there was a man calling and not girls. The participating unreliable untrustworthy informer was never produced as a witness at this trial. He was never in the case although he was the really most important salient witness against the defendant. The defendant took the stand and testified in his own behalf and contradicted the testimony of these police officers. This was such a weak case that the prosecutor must have thought and did think that every piece of paper, every scarp of evidence including a scrap of paper would be necessary to contribute to a conviction and so it did. It is for this reason in the constant references to the attempt of the prosecutor to establish the connection between brown paper, the swallowing of the piece of brown paper package at the time of the arrest. The defendant's use of the brown paper in testimony during his unconstitutional interrogation at the police station and the placement and finally and most importantly the placement of this illegal piece of paper in the very same exhibit as the subject of the crime for which the man was charged.
Potter Stewart: Mr. Traynor, do you think it's clear that the Supreme Court of California held that this paper was seized unlawfully in reliance upon the federal constitution?
Michael Traynor: I think there's two parts to that answer, Mr. Justice Stewart. One is as of a matter of state law they construed the vehicle forfeiture statute not to authorize the kind of search that was made here. Without that kind of authority, this case became for the state -- District Court of Appeal the same kind of case as the Preston case. Simply, a vehicle in lawful custody, and they said it was in lawful custody.
Potter Stewart: In lawful custody.
Michael Traynor: In lawful custody and they said so in their opinion. And that being in lawful custody was simply a Preston case and was controlled by it.
Hugo L. Black: Lawful custody of whom?
Michael Traynor: Lawful custody of the police, Your Honor. The --
Potter Stewart: But after construing the state law, then you think it is clear that they based their ultimate decision on the United States Constitution.
Michael Traynor: I think that's right. I don't think we'd be here, Your Honor, if it were not --
Potter Stewart: Well, I suppose your -- the California constitution has some sort of an -- quite equivalent to the Fourth Amendment, isn't it?
Michael Traynor: That's right, Your Honor and they relied on both the Preston case and the case in California called the Burke case which followed Preston which involved the obtaining of a car under the vehicle code when a man's arrested on the highway obtaining and putting him on custody.
Potter Stewart: Was the Burke case decided under the thought that it was -- that that result was compelled by the federal constitution?
Michael Traynor: That's my reading of the Burke case, Your Honor.
Speaker: (Inaudible)
Michael Traynor: Yes it did, Your Honor. It followed Preston and relied on it and so did the Court of Appeals in this case. The --
Byron R. White: Oh, as I understand it the -- what invalidated the search was Preston, I mean the federal law.
Michael Traynor: That's right, Your Honor.
Byron R. White: And then -- and not any state rule.
Michael Traynor: No, this is -- this case is here because it was a violation of the United States Constitution.
Byron R. White: And if the Preston --
Michael Traynor: Under the Preston --
Byron R. White: -- if -- let's assume for a moment that Preston was erroneously interpreted to bar the search without a warrant of a car which is in the lawful custody of a -- of the police. Let's assume that Preston didn't quite -- let's assume this car was stolen for example, and assume Preston does not bar the police from searching without a warrant a stolen car which they've taken in their possession. Now would the --
Michael Traynor: Your Honor, I think that would be a would be a very difficult argument to make because on the record in the Preston case, the -- one of the arguments made was that the police had caused to believe that the car was in fact stolen and that it was in lawful custody of the police because it was stolen. And in fact, the Solicitor General in his brief --
Byron R. White: I agree with that argument. Well, I'm just saying -- let's assume that Preston didn't hold this at all. Then I suppose the court below would've been -- if this is wrong relying on the Preston. They do not -- anyway, they're not relying on a state rule.
Michael Traynor: I'm not so sure that would be the correct answer, Your Honor. This -- the District Court of Appeal, if that were the case, I think properly relied on Preston even assuming as -- even assuming Preston was not controlling. Preston -- I don't think should be read as simply establishing the outer limits otherwise, to read it otherwise would discourage the state and federal courts from taking the decision to this Court and following them and applying them in the cases where they should be controlled. The District Court of Appeal properly, I think, interpreted the Preston case to apply to this. We have the same element of lawful custody in both cases. The state's reliance on the Ninth Circuit Federal Court case under the narcotics statutes is a case that didn't even bother to cite the Preston case even though it was decided after it. The -- there's really no justification for distinguishing the Preston case here. What the state is really attempting to do is to overrule the Preston case or to trivialize it by exceptions that there are no available exceptions in this case. The important point I wanted to make coming back is that this was an extremely weak case against the defendant. Every piece -- every scrap of paper was necessary and it was used and it hurt and it hurt the defendant in the trial court and it hurt him in the appellate court. And for that reason his conviction was unconstitutionally obtained and for that reason also it must be reversed respectfully. Thank you very much.