Earl Warren: Mr. Wilkey, you may continue.
Malcom Richard Wilkey: Mr. Chief Justice, may it please the Court. Mr. Chief Justice, in response to your inquiry as to at anytime in the record that the petitioner may have been cut off in his seeking to introduce evidence, and in our search during my lunch hour, the only place that we find that he was temporarily even cut off and he does make a point out of footnote of his brief is on page 60.
Hugo L. Black: His brief?
Malcom Richard Wilkey: Petitioner's brief. Yes, there's a footnote which he refers to this, page 60 of the record, Officer Beckmann, “Have you ever turned over evidence in a narcotics case to the federal officers prior to the arrest in this case?” The Court, “What is the materiality of that?” Now, there are other places in the -- I think he was, I say temporarily restricted in his inquiry at that point but there are -- there are other places in the record where he went back to that same subject and did make unrestricted inquiry on page 70 and on page 83 particularly. He was allowed to make inquiry in regard to police reports in the -- any possible participation or collusion. So, he -- he actually wasn't cut off there. And furthermore, I think in response to question by Mr. Justice Frankfurter, the petitioner's counsel stated very clearly, there was no participation or collusion in this case. Now, that is all we've been able to find. We haven't gone through the entire record.
Earl Warren: It's all right.
Malcom Richard Wilkey: We've done the best --
Earl Warren: Yes.
Malcom Richard Wilkey: -- we could at the time.
Earl Warren: That's the best you can do.
Malcom Richard Wilkey: Thank you.
Earl Warren: Thank you.
Malcom Richard Wilkey: Now, after having detailed the facts of this case, which we believe indicate very clearly that there was no arrest until after the officer saw the contraband and that there was in fact no search and seizure in the sense known to the law that there was in effect abandoned the contraband which was taken by the officers. I want to come to the applicable law particularly the Henry case decided in November 1959 of this Court. Now, I think it most important that in the Henry case, there was a concession by the Government in the trial court which was adhered to all the way through these proceedings in this Court that there was an arrest when the agents stopped the car in Henry. And the Government said, and it was noted hereby in the Court's opinion that we were not arguing in Henry that the arrest did not take place at a later time. We adhered to the concession, and that we would argue at this point as to the time of arrest in the Rios case, and that is what we are doing now. Now, we do not think that it is too relevant in all cases as to how the car was stopped because we do believe that there is a right to halt a moving vehicle for the purpose of inquiry even though there is no arrest. But if there is any distinction between who causes the car to be stopped, we point out that in this case, Rios, the car was halted at the light behind other cars in traffic at the time that inquiry was first inaugurated. Now, Mr. -- the Court speaking through Mr. Justice Douglas in Henry said, when the officers interrupted the two men and restricted their liberty of movement, the arrest, for the purposes of this case, was complete.
William O. Douglas: I think you reserved the decision on the -- this case, right now didn't we, this Rios case?
Malcom Richard Wilkey: Exactly, Mr. Justice Douglas.
William O. Douglas: The Rios case, yes.
Malcom Richard Wilkey: We pointed out that that would be argued later in the Rios case in the footnote. So we think that on the standard, even enunciated in the opinion here in Henry, when the officers interrupted the two men and restricted their liberty of movement, the arrest for purposes of this, the Henry case, was complete. But here there was no restriction of movement of the petitioner until after he had dropped the contraband. He was sitting in a halted car and the officers merely came up to the car. Now, the Court further stated in Henry, and this is very applicable here as to there reasonableness of the officers actions. The police must have reasonable grounds to believe that the particular package carried by the citizens is contraband. Its shape and design might at times be adequate. The weight of it and the manner in which it is carried might at times be enough. Now we submit that the container -- narcotics in Rios to any police officer conversely with the narcotics strategy spelled out narcotics by its shape and design and by the color and size. The officer could not ignore what his eyes told him as he saw the narcotics container on the floor of the cab. Now in the Henry case, there was a dissenting opinion by Mr. Justice Clark in which Mr. Chief -- the Chief Justice joined, in which it was said that the Government concession that the stopping constitute an arrest was, I'm not using the words in the opinion there, but in effect was unnecessary and unwise in the facts of the case, and the dissent said that no arrest until after the agents found other facts which would be probable cause. Here we say that on both the majority opinion of the Court in Henry and on the dissent, here clearly that mere inquiry an identification by an officer as to who he is, in nowise constitutes an arrest and therefore that the arrest could not have taken place until after the contraband was visible and meant to that police officer of what it really was. Now, --
Speaker: Could I ask you a question?
Malcom Richard Wilkey: Yes.
Speaker: Is there any dispute in the record as to the point at which the officer drew his gun?
Malcom Richard Wilkey: There is --
Speaker: Is it clear?
Malcom Richard Wilkey: It's not clear. And the reason it's not clear, Mr. Justice Harlan, is because everything took place in the period of one minute and the cab driver was obviously nervous and it is only his evidence which indicates in any way that the officer drew his gun until after the man was outside of the cab and the officer had his hands on him and he was resisting arrest. All of the other evidence, the testimony of the two police officers, Beckmann and Grace showed that the officer had a badge in his left hand and a flashlight in the right until such a point after the contraband was identified. Now, to sum up on the arrest, we say that there was a right to inquire of the petition in the cab. No arrest was made or intended until after the officers saw a package which in all probability contained narcotics, and at this seeing the package plus the circumstances leading up to the inquiry did constitute probable cause for an arrest, and if the Court of Appeals there was a seizure in the sense known to the law, a probable cause to arrest and seizure too. Now, on the second point --
William O. Douglas: Before you leave that -- I'm just reading Evelyn's book on the criminal prosecution in England. On page 82, I notice he says as of the British law, any form of physical restraint is an arrest. If that was the test applied here, when would you say it took place?
Malcom Richard Wilkey: After petitioner alighted from the cab, if that would be the test here, after petitioner alighted --
William O. Douglas: How about the -- how about the pulling of the gun on the cab drawer?
Malcom Richard Wilkey: I don't think the gun was pulled and I don't think that the facts established that it was pulled until after the officer was engaged in the struggle with the man and that that was the reason the gun was pulled.
William O. Douglas: It came after that -- after you say that he is -- after he detained -- after he said, "You're under arrest", or after he decided to hold him.
Malcom Richard Wilkey: Yes. It came at the time that he was grabbing hold of the man and the man was obviously resisting and pulling away. Now, in all of those things happened rapid fast, but I think it is clear that there was no pulling of the gun until after the petitioner alighted from the cab. There was no necessity of it. The officer has testified that he identified himself and then the narcotics were dropped and after he saw the narcotics dropped, he reached for the door and the petitioner likewise started to get out.
William O. Douglas: Well, of course the testimony of the taxi driver is a little different, I think as given on the page 8 of the petitioner's reply brief. This testimony of this taxi driver in the case that Beckmann had his revolver gone prior to the time that you say he got out of the cab.
Malcom Richard Wilkey: Yes, it does. The taxi -- I can only say that I think clearly it was impossible for the taxi cab driver to be right on that, that while he may have been try to recall things as best he could, that it was impossible on the other admitted and established facts as to what he had in his two hands a flashlight and a badge. And that on page 23 of the record in the case, the petitioner's counsel admitted that the officer did not have the gun in his hands when he approached the cab and I think on all the facts that that's true and I think that certainly the District and all the evidence before it when it heard the testimony of the people.
Speaker: What was that reference that you gave to the statement of the petitioner's counsel? You said he admitted he didn't have a gun.
Malcom Richard Wilkey: At the time he approached the cab, I believed that's true on the page 23.
William O. Douglas: On page 23 he says, "He approached his gun in one hand and his badge in the other".
Malcom Richard Wilkey: Yes that's what he said, and then if you will Your Honor look at what the Court said correcting me with which petitioner's counsel agreed. Now logically, as we have argued in our brief, the seizure here and the admission of evidence does not depend upon actually the lawfulness of the arrest, because the evidence here was contraband abandoned in a public cab and its seizure did not depend on establishing the arrest or probable cause for the arrest. Now on that, we would rely on Mr. Justice Holmes' opinion in the Hester case cited in our brief. In the Hester case, it was a prohibition -- a liquor case, there the prohibition agents in consequence of information, and by the way the record shows at page 21 of the record in that case that the only testimony as to information was one of the agent says, as the result of information, they grove to the vicinity of Hester's house. They went there and they concealed themselves and they saw Hester come out of the house and hand another man a bottle. There was an alarm given to somebody on the premises. Hester took a gallon jug from an automobile standing nearby and both men ran away. One of the officers pursued and fired a pistol. Hester dropped the jug and the other man threw away the bottle. They were found on retrieving by the officers to contain moonshine. The officers had no warrant for search or for arrest when they were on the premises of Hester. This Court through Mr. Justice Holmes in holding the evidence admissible found it unnecessary to decide whether the action of the officers which caused Hester to betray himself was legal saying at page 58 of the opinion. It is obvious that even if there had been a trespass, the above testimony was not obtained by an illegal search or seizure. The defendants own acts and those of his associates disclosed the jug, the jar, and the bottle. And there was no seizure in the sense of the law when the officers examined the contents of each after it had been abandoned. Now here, you'll have in the Hester case the officers being on the premises without warrant, observation a chase in the pursuit in which a pistol was fired and the moonshine was dropped. And the Court held that there was an abandonment of contraband and there was no search and seizure which depended on the legality of any warrant or depended on the legality of any arrest. I think that we can also draw an analogy from the Abel case decided yesterday in which items six and seven, which were left in the hotel room by Abel, were then picked up by the FBI after Abel had been taken away. Abel, as I remember the facts, had rented that hotel room until later in the day but when he went with the agents, while they paid his bill with the desk and the hotel room was then reverted to the inn keeper. And so there -- the -- I think the Court held in Abel that the admissibility of both items six and seven found by the agents after the arrest taken place, did not in anyway depend upon the validity of the arrest.
Potter Stewart: When was this package picked up by the officer, does the record show?
Malcom Richard Wilkey: I -- while Officer Beckmann was in pursuit and it lasted for a period of over two blocks of the petitioner, the second officer leap from the cab.
Potter Stewart: The policewoman picked it up, did she?
Malcom Richard Wilkey: The policewoman picked it up, yes. Beckmann says --
Potter Stewart: I suppose -- suppose the taxi fare have not yet been paid.
Malcom Richard Wilkey: I suppose so, I suppose that similar to Abel that Rios intended to reserve that cab until he reached his destination, but other events intervened, and Abel intended to reserve that room until I think the afternoon and the search I believe or the examination by the FBI was made before that time expired but Abel had left the premises and he had abandoned what was there. I believed that was the holding of the Court in the Abel case. That same principle was applied in 1954 in the Lee case from the District of Columbia where officers were interrogating two people in a car and asked them to get out of the car. They got out and in so doing they dropped the stolen jewelry in the gutters and it was held there on the authority of the Hester case that there was no search and seizure as known to the law. Now then I want to get to an examination -- by the way the trial court, the District Court rested his determination on both the abandonment of the contraband theory and on the fact that there was no arrest until after the petitioner alighted from the cab or after the discovery of the contraband which in his view constituted probable cause. I want to make it clear that I think that the key time is the discovery of the contraband, not the time the petitioner alighted from the cab whenever it is, but I think that was subdued. Now I want to get to the third point which involves as a possible adoption of this Court, the rule of exclusion on the federal courts as to evidence which is found by state officers. I want to say at the outset that as I read the precedents involving this rule that's applied to federal officers. Weeks, Center, Burdeau versus McDowell, which is not federal officers neither was Center, but the Weeks rule as -- that has involved federal officers for the good reason of the discipline of federal officers and it was felt that the exclusionary rule what implement the command of the Fourth Amendment not necessarily being required by the Fourth Amendment, but it would implement the Fourth Amendment and it would serve as a deterrent and it would be as applied to federal officers, be effective in enforcing compliance with the Fourth Amendment. We submit to the Court that the reason for the exclusionary rule of Weeks as applied to federal officers does not apply, does -- does not follow where state officers or private individuals are concerned. Even in the federal courts, this exclusionary rule has not been completely effective as witness the cases coming before this Court and the other Courts. And I think that this Court and the other courts can note that there are significant differences perhaps among the federal agencies varying with their training as pre to core their methods of recruitment. There are many factors involved in making the exclusionary rule work, which exclusion in Court is only one, but it does have a disciplinary effect on federal officers and there is a certain rough justice where the Federal Government is both the prosecutor and the federal officers are the ones who participate in the seizure in making the real effect to excluding the evidence. They are, in Mr. Justice Frankfurter's phrase of yesterday, in the same household, and so it does have that effect.
Hugo L. Black: Do you think that's the only reason on which it rests?
Malcom Richard Wilkey: I think that, that is the reason which has been articulated in the opinions of the Court as to the basis of the rule, Mr. Justice Black. I am aware that in dissenting opinions as Mr. Justice Holmes and Brandeis that there has been another rule -- another reason that is to say that the Government should have no part of and should not adopt or ratify or have the benefit of in a dirty business. But it is our position that the real reason for it is one of effectiveness, and that we must distinguish between the physical evidence itself and the actions of people over whom the Government has no control whatever in obtaining the evidence. The evidence is probative trustworthy. It's not the federal officers who are bringing the prosecution. It is the organized society itself. And there has to be, as many times said in the Court, weighing and the balancing of the laws in law enforcement by the exclusion and the gain in the enforcing the constitutional mandate and where the officers are federal or there's federal participation and there's force on degree of control, it is believed that that is effective. But I think that while there is another reason for it, that other reason has not been adopted by the Court, and in fact I believe impliedly, it was rejected in the dissent, I think rejected in the dissents where the dissenters urged it and it was not applied in Wolf versus Colorado where it was left to the states to make their own rules and their own choices.
Hugo L. Black: What do you think of the differences is that the reasons that underlie the exclusion of evidence obtained by unlawful search and the exclusion of evidence which is confession that a man has given outside the Court.
Malcom Richard Wilkey: Well, in the first place, Mr. Justice Black, a confession in itself that has been pressured is not trustworthy. And the second good ground is that it shocks and offense our conscience and sensibilities to admit that. I think that coerced confessions throughout the law had stood on a different ground from the question of illegal search and seizures. And I think it's clear that there is a constitutional mandate and the question has always been and before this Court as to how best to implement the constitutional mandate. In Weeks it said we will exclude --
Hugo L. Black: Was that the ground on -- in the Boyd case? You remember?
Malcom Richard Wilkey: Boyd involved -- Boyd actually involved the Fifth Amendment where there was a compelled confession in effect by the compelled production of records and the Court said that they would not count on outset.
Hugo L. Black: They drew some -- found some similarities, I mean the reason that exclude that and the reason that excludes the confession and the other type of evidence that's been unlawfully obtained.
Malcom Richard Wilkey: Yes. I would not deny that there is some similarity, but I think that the basic reason in each case is different. The basic reason for excluding a coerced confession is it's untrustworthy. Secondly --
Hugo L. Black: Do you think that's the basic reason?
Malcom Richard Wilkey: Well, I won't put them one and two but that's a primary reason and the other is, the other reason is that -- that is so -- offends our sensibilities so that we will not tolerate from any source as the Rochin case in California, I think that stands on that ground. But on the Fourth Amendment, I think that courts have been primarily concerned in the majority opinions of the Court. The decisions of the Court have been concerned with the effectiveness as a sanction. Now, I submit that the reason -- that the reason of a sanction and the reason about the certain rough justice in knocking out the Federal Government's evidence if the Federal Government was responsible for the wrong, and remember Mr. Justice Holmes in Silverthorne spoke of the Government's own wrong, we don't have that here. Those -- both those reasons breakdown where state officers are concerned.
Hugo L. Black: Well you're -- you're going on the basis that the wrongfulness in using evidence illegally obtained has nothing whatever to do with the ruling?
Malcom Richard Wilkey: I don't think that it is wrongful to use evidence illegally obtained, I think it is wrongful illegally to obtain evidence, and I think there's vast distinction between the two.
Hugo L. Black: If -- if it's a mere question of a state, of a Court formulated rule, it would be there important, wasn't it as to whether one of the reasons founded the rule is that the Government should not use evidence in its own courts that was obtained in violation of the real purpose of the Constitution whether obtained by one officer or another assuming if that were true.
Malcom Richard Wilkey: Well, I think there are two things. First of all, here we're dealing with state officers and I think that the majority of the Court -- the Court has held that the restriction of the Fourteenth Amendment on state officers is not exactly the same as the restriction on the Fourth, the Fourth Amendment on federal, that's one point on the constitutional command itself. And the second point is that there is a choice of the method of enforcing the constitutional command, and that is what I want to argue before the Court now that the Court should not adopt a method of an exclusionary rule which everyone knows results in otherwise guilty people going free unless there is another benefit to society, in other words, that the rule of exclusion would be effective and improve the due administration with the enforcement of the law.
Felix Frankfurter: Before you move on to that consideration, Mr. Wilkey, when we start to take into account I think in dealing with these considerations one that the Court should be pure, and I mean this, and two that the enforcement of law for society benefit should be affective without hampering something very offensive, that among the 50 states, there are various standards both in statute law and in decision of law as to what constitutes an illegality in an arrest or in a search, which that this Court decided yesterday that is a merely because warrant is based on hearsay doesn't render it illegal and insufficient under the requirements of the Fourth Amendment. Now, state may hae a much higher standard than that, ultimate constitutional standard are not the last word of morality or delicacy of thinking, they are rather under minimize. And so you may have state declaring warrants illegal way above the standard that would satisfy the Fourth Amendment, and it wouldn't have a general exclusionary rule of having evidence obtained through illegal steps by way of search or arrest may invalidate the introduction or render inadmissible the introduction of evidence which the federal court themselves in enforcing the Federal Constitution would not have been illegal. There are considerations on both sides when you deal with such diversities of standards and requirements in law enforcement, as under our system of the distribution of political powers is presented as between the 50 states in the union.
Malcom Richard Wilkey: That's entirely correct in support of our position I believe, Mr. Justice Frankfurter. And of course, the different States after thorough consideration of the Weeks rule or the rule of exclusion some have adopted and some have not and it seems that that is one that should be left to them and is. And that the federal courts cannot concern themselves with the vagaries of either state law, the discipline of state officers, or even the actions of private individuals. The petitioner in Elkins differs from the petitioner in Rios. The petitioner in Elkins will ask this Court to adopt a rule which will exclude all evidence wrongfully obtained whether obtained by state officers or private individuals. Now that not only would put the federal courts at the mercy of every state local policemen and magistrate but also every private detective throughout the country. I -- petitioner in Elkins stated very frankly that that was his position and that to do -- to adopt such a rule, the Court would have to overrule the precedents of Weeks, Center and Burdeau versus McDowell. And in regard to the precedent on this, I should like to point out that in Center, the action taken wrongfully I believe was state officers but in saying that that was not excluded the Court cited Burdeau versus McDowell, thus throwing state officers into the category of private individuals over along the Federal Government has no control.
Felix Frankfurter: You're ordinary to deal at length -- to deal adequately with the proposed rule in the dissent of Burdeau against McDowell, namely, to make it a rule not of constitutional prohibition but of standard of evidence applicable to the federal courts.
Malcom Richard Wilkey: Well, I don't know if I'll deal adequately --
Felix Frankfurter: You would deal with it.
Malcom Richard Wilkey: -- Mr. Justice Frankfurter, but I won't -- I might as well turn to that now. It seemed --
Hugo L. Black: Not as if we get to that as others. I see you didn't cite the Feldman case. Do you think that has no bearing on your case? Feldman against the United States.
Malcom Richard Wilkey: We may not in Rios, Mr. Justice Black, but we did in Elkins --
Hugo L. Black: You did.
Malcom Richard Wilkey: -- and I argued -- I mentioned that if in the argument in Elkins, yes. Feldman helps us as far as the rationale of not allowing federal justice to be determined by state action of either laws or official over whom the Government has no control whenever .It helps us in that regard. It's analogous. And I think I used that in argument along with the Abbate opinion -- argument. It seems to me that aside from the disciplinary reason for the exclusionary rule as a flag to federal officers there are -- all of the other arguments the non-constitutional argument of the dissenters, Mr. Justice Brandeis and Holmes, those -- that this is dirty business that the courts must remain pure and have nothing to do with it that -- that all of those arguments are equally valid as was urged in the Burdeau case, whether a private individual is involved or whether state officers are involved. And the possibilities of connivance, collusion, vast irregularities in the administration of federal justice are just enormous when we consider the possibilities that are opened up by seeing that the federal court, in some way, is responsible for the actions of private individuals, private detective agencies, local constables, local magistrates who air on the law as to what constitutes a valid warrant. All of those things are equally valid arguments for private exclusion no matter who is guilty of the wrong. And that federal justice simply cannot be dependent upon those things. And I think that for a court to hold that to adopt the position of the petitioner in these two cases would be to overrule all the precedent of Weeks and Center and Burdeau versus McDowell and also to overrule the rationale of Wolf itself. The -- I also want to say that the -- it seems to me the application of the exclusionary rule in federal court should not differ between the states as to whether the states has an exclusionary rule or not, that we must have the same standard in (Voice Overlap).
Hugo L. Black: When you say must not by any -- you say must have the same standards. Not by any requirement of logic or compulsion but as a matter of policy I gather.
Malcom Richard Wilkey: As a matter of policy, yes. Now it seems that in considering the application of this exclusionary rule there you got assume two set different situations. Take the case of an intentional violation of the Fourteenth Amendment. Well, if it's a warrant situation, here you have a state magistrate passing on it. The educational requirements of state magistrates vary and you have irregular results, the country over and you have to postulate if you have an intentional violation. You have to postulate either the ignorance or connivance of state magistrate in obtaining the testimony. Then if you postulate an intentional violation in a no warrant situation, here you must have in a split second operation like the seizure in Rios. You must have a policeman making a careful analysis of the situation and saying to himself that under California law, I couldn't get it in the State Court but I can get it in in the federal court and so, I'll grab it and finally have a federal prosecution. Now those things just don't take place. So I think that on the practicalities of the thing that an exclusionary rule in the feral court would be ineffective if you assume an intentional violation whether it's a warrant or not a warrant. Now, if you assumed an unintentional violation, you make federal justice dependent on the errors not only of every local police officer but also on the legal wisdom of the local magistrate throughout the country when seeking a warrant. Now if -- of course intentional violation assumes no fault at anytime, whatever is using this evidence than the federal court. And so, it seemed in a practical way. If the discipline of the state exclusionary rule itself, as they have in California, will not improve the discipline of state police, a federal exclusionary rule will have no effect -- further effect whatever. Take this case of Rios for example. California has a rule of exclusion. They adopted it in the Cahan case. Now, would Officer Beckmann had acted differently here if he had been aware that the federal courts would have an exclusionary rule like California. I submit that no hours of training time or instruction for Officer Beckmann or any other state officers would be aided by the fact that the state -- that the federal court also have an exclusionary rule in regard to the actions of state officers.
Felix Frankfurter: Well there's nothing in the record to suggest that Officer Beckmann didn't -- that he have the right to do, a legal right to do what he did, is there?
Malcom Richard Wilkey: Absolutely nothing. The record I think shows that he acted in good faith and acted as any trained police officer under the circumstances would have acted. I can't conceive of him acting differently.
Felix Frankfurter: I'm not suggesting that that's inclusive. You suggest that there is a great deal of difference between the circumstances of this case and the Burdeau case in which Mr. Justice Brandeis said what he said about shocking in common indecency because that was a case of theft of outright thievery and the stolen goods being handed over to a special assistant to the Attorney General of the United States by him to be used in the fourth coming trial, and the proceeding was not the admissibility but as you know the proceeding to make defense, there he was defense he was a high officer, a high legal officer of the Federal Government. The recipient had concededly stolen goods and that the issue was to return of those stolen goods to the true owner. And the defense was that we want to keep this because we want to use them in the trial. It was in that setting -- that Justice Holmes and Justice Brandeis sent it and was shock and said this ought to be returned.
Malcom Richard Wilkey: Well --
Felix Frankfurter: It's an interesting fact that the terms of the dissent are not very generally pertained to this particular case. The thing starts out to have his private property stolen, in fact the truck was suspended.
Malcom Richard Wilkey: Well, Mr. Justice Frankfurter your point --
Felix Frankfurter: I'm thinking that they didn't mean that's specifically done with the general rule.
Malcom Richard Wilkey: You pointed out much more adequately than I could. The distinction between that particular -- the facts of that particular case and the rule laid down there and the facts of the Rios and Elkins case, where in Rios it is contraband could never be lawfully posses by any private individual and in Elkins where the tapes were instruments of crime, the fruits of crime and then place in sort judicial limbo and would not be returned to their owner. That is a far different situation from the private papers involved in the Burdeau case, and the rule might conceivably be different but here in Rios and Elkins we're confronted with the actions of state officers in one case with the warrant and another case acting on the fact situation that would impel I think, any officer to act the same way.
Speaker: You were arguing in your brief tentatively for a qualified rule of admittance, namely, that where you got a Rochin type seizure, you may want to use that expression that there you might have an exclusionary rule?
Malcom Richard Wilkey: Yes Mr. Justice Harlan.
Speaker: Is that a -- which you're putting to the Court from the Government's point of view which you advocate.
Malcom Richard Wilkey: We're advocating first Your Honor that in this case and in Elkins, certainly the facts show --
Speaker: Yes.
Malcom Richard Wilkey: -- the silver platter doctrine should be upheld and no exclusionary rule should be adopted and then in mentioning those (Voice Overlap) --
Speaker: Under either view -- under either view of your -- under either view of the problem either under qualified rule -- qualified rule of admittance or a none qualified rule of admittance.
Malcom Richard Wilkey: Right. And we mentioned -- we made that argument, that alternative argument to show the Court that it's not confronted with hard and fast alternatives here and that as in the Burdeau case, as mentioned by Mr. Justice Frankfurter, there are intermediary positions and that the Court does not have to adopt the Weeks, an iron clad Weeks rule and it doesn't have to -- in this case adopt the silver platter rule for this, all other cases, that there is a intermediary position which would depend on the circumstances similar to that in the Burdeau case. We are here primarily that on the facts of this case, in Rios, there was a lawful taking of the contraband that there was no arrest until such time as the contraband had been identified and therefore there was probable cause.
Speaker: I understand that.
Malcom Richard Wilkey: And then if --
Speaker: What I'm assuming that the Court, this pure assumption of the Court reaches the silver platter rule in both cases, that's the question I'm putting into this as to what kind of an exclusionary rule or absence in that exclusionary rule are you recommending.
Malcom Richard Wilkey: We would urge that it would be very unwise to adopt the rigid exclusionary rule of the type of Weeks and we pointed out the alternative to show that there is more than one alternative before the Court on which I can sustain each of these convictions.
Speaker: Your primary position is that there should be no exclusionary rule, I believe.
Malcom Richard Wilkey: Right. The Wolf versus Colorado position, that's our primary position. And for the reason of this, the effectiveness of it -- I -- I think about the position of state officers, there's no incentive for them to conform to a federal rule any more than they have for their own state rule. The training orientation of state officers both enforcement and judicial towards state law, what is a magistrate going to do if the -- this Court should adopt the exclusionary rule of Weeks as applied to state officers. He's going probably to do the same thing he does now lay that affidavit and that warrant beside his code, his state code and he has formed both because are -- it is assumed in these cases that come up that there is no federal participation and there is only an intent for a state prosecution. And so that's all the law enforcement officers and the magistrate is going to be concerned with. Then think of the training of local police. Some have none whatever. Think of the caliber men that are recruited that varies widely. Think of the legal acumen of the local magistrates, because for instance in Elkins, this was not only the error of a deputy sherif, it was the error of the District Attorney if it wasn't error of his chief assistant and of the magistrate on Thursday night reversed on Monday morning. So an adoption of the Weeks rule would make federal justice dependent on all these varying factors and would not be effective in improving the training of state officers and making the compliance with the constitutional standards more of a reality. Unless the Court has further questions, I rest the Government's case here.
Earl Warren: Mr. Grossman.
Harvey M. Grossman: The Court please, in the time remaining few additional points. First of all, we submit an answer to a query as to why the federal court should -- why this Court should not accept findings of -- so-called findings of the lower court, the fact that first as it's been indicated there were no findings in any sense of the term mere conclusions for the District Court. Secondly, this is not merely a case where two courts were involved but three and perhaps two of the three took one view that at least the state court took a different view and this certainly raises questions and they raised -- those questions are particularly serious in light of the fact that first the stories, we submit, a reading of the record reveals beyond question that Officer Beckmann changed his story in several particular as he testified quite differently as to the sequence of opening the door, a very important fact in the state court than he did in the federal court. There were important versions here and differences and these aren't indifferences between defendants and plaintiff's story, these are differences in stories the Government presented with the stamp on arrestee presumably. Certainly the Government can't come in here and say the cab driver, when he testified to the revolver incident after the Government put him on as a witness, is one of the Government is going to try to impeach now because they were putting on someone who wasn't going to tell the truth nor can the Government say that Mr. Forno who was counseled for the defendant in the state court proceedings knew more about what transpired there than the witnesses present. In short, we submit this is a case where the record on the state of facts is such that examination by this Court is warranted and called for and that one other fact. The Chief, Mr. Chief Justice Warren raised the question as to restrictions and cross-examination. We've looked a little more carefully than the Government perhaps because we find several instances for example on pages 84 to 85 of the record, the state court -- the Federal District Court Judge announced the very restrictive rule of cross-examination stating that all that could be done was to raid the inconsistent statement into the record and that nothing further could be done because that's the limit of impeachment under his view. We submit it's an erroneous view and it's unfortunate that he thus limited examination as to a key issue in the case. At that point, we were trying to show the inconsistency in the prior statements as to the sequence of events of opening the door and so forth. There are other instances when we attempted to get into the question with federal participations, as the Government mentioned they were restricted. Again, we were restricted in our cross-examination on page 65 when we asked Officer Beckmann what's his intent. Was he intending a search and seizure?
Hugo L. Black: What page?
Harvey M. Grossman: Page 65. And the Government objected on the ground that matters of intent were irrelevant and therefore the Court sustained the objection and that was the end of that. In short, there were various instances where we did not have a full opportunity to present all of the cross-examination in the federal court and this should be considered in judging the federal court's determination or its approach of the adequacy of its determination. Now with reference to the Henry case, we submit, that if the petitioner had endeavoured to drive off and Officer Beckmann approached with the avowed purpose of investigating narcotics to see if defendant had narcotics in his possession, obviously, whether with -- with we they call a revolver or what the Government counsel refers to as a flashlight, most certainly he would have taken forceful means of stopping the defendant, so the defendant was at that point under restraint. And further, Officer Beckmann made a formal arrest prior to the time he ever actually had any real opportunity to examine the narcotics because that was after defendant alighted from the cab, he was grabbed by the arm again. The driver says also grabbed while inside the cab and told that he was under arrest, only then, that the police actually bothered to take the trouble to look at the material in question. Now, insofar as the question of adopting a rule by this Court is concerned, first of all, there was we submit federal participation here not at the time of the search and seizure, but when the federal prosecution used this evidence in question. When the federal courts permitted a prosecution to be sustained on the basis of this evidence, at that point we think, the federal courts should properly have evoked an exclusionary rule, an exclusionary rule pattern not on the basis of the flexible standard the Government suggests but rather on the same basis as the exclusionary rule for federal officers. After all California has found that rule the only means of deterring unlawful searches and seizures by its officers -- its officers, so of 20 other states so of the federal courts. And we submit that interest of state policy required a different result seems rather far fetched, nor cannot be said if we accept the Government's change in emphasis from page 55 of its brief where it said the disciplinary effect is the key item here saying other elements of the exclusionary rule at precedent. Even if we accept this to be the fact, we submit that the same considerations applying for adoption of the exclusionary rule for the federal courts, likewise apply here. After all if office -- let's consider Officer Beckmann is going to do next time he seize the cab and let's assume the lack of probable cause. Perhaps he wasn't aware of the silver platter doctrine when he seized the evidence in question but he didn't stop at the state courts, he took the evidence to the federal courts. And if this Court holds that that's perfectly proper, one can well wonder what Officer Beckmann is going to do the next time he seize the taxi cab. Is he really going to worry about the exclusionary rule or constitutional problems if only he has to do was go across the street to the federal court house and introduce his evidence and get the prosecution brought to a conclusion just the way he wants it?
Felix Frankfurter: What you're suggesting is he would have consciously clouding the rule of the State the Conroe which had been announced and pronounced only years three before. He didn't care about violating the law of the state but he could then drove to the federal court and has immunity, is that the case?
Harvey M. Grossman: No, what I --
Felix Frankfurter: That was implied because the Supreme Court of California is addicted in illegal use?
Harvey M. Grossman: What I am saying Mr. Justice Frankfurter is this. Regardless of what Officer Beckmann's intent was at the time of the cross-examination as to that was restricted, at the present time, he still an officer of Los Angels police force and I'm sure he's going to be quite aware as to all the other officers on the various state police forces of what type of rule this Court lays down. And if this Court lays down a principle under which a conviction he's obtained under these circumstances is sustained, I can hardly doubt that Officer Beckmann, the next time he's confronted with the situation of this sort, is going to take the silver platter doctrine very much into account, so of his fellow officers.
Felix Frankfurter: Not if he thinks what he's doing was legal and get the reconstructive interpretation that there was some legal warrant showed at the requirements, because concededly if this -- I don't -- while that examined the record, he did not recite this notion that what he did here wasn't according to lawyer.
Harvey M. Grossman: Well, if the Court please, if in fact, he believes at that time that lack of probable cause is not the criteria but there is some lesser standard, he certainly isn't going to operate on a probable cause standard if that's not the standard that the federal court applies in determining whether the evidence is admissible.
Felix Frankfurter: But he thought he had a probable cause that's the point.
Harvey M. Grossman: But --
Felix Frankfurter: And I'm trying to --
Harvey M. Grossman: We don't doubt that the average officer in the state in the federal courts, although we can't read their minds, perhaps in some instances believe they have probable cause, perhaps this thought never enters their minds. But the important thing is that the question of probable cause, under our system, is something for the courts to determine not for the officers to have a final determination on. And if a police officer -- officer believes that all you need for probable cause for example is the fact that a defendant has a certain colored hair or a certain colored stand is he to be able to say the he operated in good faith, because this, according to his view, was probable cause or is the Court going to say, "No, regardless of what you believe, we establish the standard of --
Felix Frankfurter: That isn't --
Harvey M. Grossman: -- probable cause".
Felix Frankfurter: -- that -- that isn't the suggestion that I want you to make. My suggestion was not that the policeman should determine what probable cause is but you were making the argument that the existence to withdraw the silver platter doctrine would have a deterrent effect on the police. And my suggestion is you don't deter people from doing something that they think is right.
Harvey M. Grossman: Well, in answer to that, Mr. Justice Frankfurter, it is our position that to deter -- that police officers as California feels, other states, and as the federal courts felt in adopting the Weeks' principle are deterred if they feel that, by granting evidence illegally or without lack -- with lack of probable cause, if they feel that in doing so, they're getting evidence that will not be admitted. We submit that to that extent, and that is certainly a basic cornerstone of the exclusionary rule, to that extent, they will take such matters into account in the future or else we submit that the entire theory of the exclusionary rule in the Weeks case is being called into question. We think that's been a sound rule in California practice, may I say in conclusion, as evidenced in our brief reveals that since the adoption of the exclusionary rule in California, in the Cahan case, there's been a marked improvement in standards and we think that if the federal court -- if the federal police agencies are encouraged to assist the states in this effort by knowing that federal prosecutions would be interfered with this if they don't, that even further progress can be made. And we submit that that is the type of rule which this Court should encourage and that we submit is the reason for adopting the rule of evidence which we have proposed here.
Earl Warren: Mr. Grossman, before you take your seat, on behalf of the Court I should like to thank you for what you have done in -- in defending this indigent defendant. As I understand it, the District Court appointed you to carry the matter through to the Court of Appeals and then to -- to this Court in order to -- to see that in your judgment, justice was done. The Court is always comforted when it knows that lawyers will undertake burdens of that kind without compensation or just because of their brief in the cause of justice. So, we -- we thank you very much for your earnest enabled presentation. And Mr. Wilkey, may I --
Harvey M. Grossman: Thank you, Mr. Chief Justice.
Earl Warren: -- may the Court thank you also for your earnest enabled presentation of the cause of the Government.
Malcom Richard Wilkey: Thank you, Mr. Chief Justice.
Earl Warren: Thank you both.


Warren E. Burger: We will hear arguments first this morning in Block against Neal. Mr. Phillips.
Carter G. Phillips: Thank you, Mr. Chief Justice, and may it please the Court, this is a suit arising under the Federal Tort Claims Act, and specifically the issue is whether a suit against the United States alleging that a federal employee negligently inspected a home purchased from a private developer but with federal moneys is a claim arising out of a misrepresentation and therefore barred under the Federal Tort Claims Act, specifically, Section 2680(h) of the Act. The Farmers Home Administration is an agency of the Department of Agriculture which, among other services, provides loans to low income rural housing residents to assist them in purchasing safe and decent housing. In 1977, the Farmers Home Administration granted Respondent's application for a loan, and Respondent then entered into a contract with a private developer... the name of the company is Home Marketing Associates, Inc.... to purchase a prefabricated house. The purchase price of the house was approximately $21,000. During the construction of the house, and in accordance with Farmers Home Administration regulations, a county employee of the Administration inspected the house when it was 2 percent completed, 99 percent completed, and 100 percent completed. On each occasion, she signed an inspection report indicating that there were no major deviations from the housing plan and specifications that she discovered in her inspection. Each inspection lasted between 10 and 30 minutes. Ms. Wells and Respondent both participated in the final inspection, and Respondent signed the final inspection. Two months after Respondent moved into her house, she notified the Farmers Home Administration that she was having difficulties with the heat pump that had been installed.
Harry A. Blackmun: It really wasn't much of an inspection, was it?
Carter G. Phillips: No, sir, it was not the best inspection that one could have hoped for. A second inspector went out to the house and discovered that the heat pump that had been installed was not the same heat pump that had been provided in the plans and specifications, that it was indeed a significantly smaller heat pump than they had anticipated, made by a different manufacturer. In addition, that inspector discovered other defects in the house that are listed in the Respondent's brief. Efforts by the Farmers Home Administration to convince the Home Marketing Associates company to correct these defects proved unsuccessful for reasons that do not appear in the record. When Respondent failed to get satisfaction or to receive satisfaction from the company, she filed suit in state court against the Secretary of Agriculture, the head of the Farmers Home Administration, various employees of the Farmers Home Administration, and the United States. That suit was removed to federal court, and the district court dismissed the... or, excuse me, granted the government's motion to dismiss the complaint for failure to state a claim. The theory of the district court was essentially that the statute and regulations created no basis... created no duty running to the Respondent to guarantee the quality of the house based on the inspections that had been undertaken. The Sixth Circuit on appeal agreed with the district court with regard to the contract theory. It found nothing in the statute, regulations, or conduct of the Farmers Home Administration that would create any kind of a contractual duty to warrant the quality of the house. The court of appeals, however, reversed under the... on the tort issue, and held that the government's inspection could legitimately be regarded or could potentially, at least, be regarded as having violated the good Samaritan doctrine. The good Samaritan doctrine requires someone who acts on behalf of another and engenders reliance from that other person to exercise due care and to be responsible for any injuries caused by the failure to exercise due care. In addition, the court held that the Respondent's claim regarding negligent inspection was not barred by the misrepresentation exception.
William H. Rehnquist: Mr. Phillips, you referred two or three times to the claim as one claiming a negligent inspection. Actually, the claim involved a breach of the duty to supervise as well as to inspect, didn't it?
Carter G. Phillips: Well, the problem with that is that there is nothing specific in the complaint with regard to exactly what they meant by supervision. The only supervision of the construction, Justice Rehnquist, was in the inspection of the house.
William H. Rehnquist: Well, but the complaint never went to trial, and under the federal rules you presumably are entitled to adduce any number of facts in support of even a generally pled allegation. The court of appeals certainly referred to it. It says, failure to provide technical assistance, including inspection and supervision of construction.
Carter G. Phillips: But that is only if there is something in the statute that would provide for supervision in addition to the inspection--
William H. Rehnquist: I realize--
Carter G. Phillips: --and there is nothing in the statute to that effect, so that at issue... the only thing that could potentially be alleged and be consistent with the statute is the negligent inspection.
William H. Rehnquist: --Well, you say that even the 1949 Act doesn't authorize or require the government to supervise as opposed to inspect.
Carter G. Phillips: That's correct, Your Honor. I mean, the only supervision that is discussed is supervised loans and the provision of information to the Respondent, so that even to the extent that supervision is alleged here, it is all... it is still all based on the exchange of information, and that exchange of information is what this Court held in Neustadt as barred under the misrepresentation exception.
John Paul Stevens: Mr. Phillips, doesn't it... Excuse me. Well, following up on this point, then, if I may, what does Section 1476(a) mean, then, when it says, "Buildings and repairs constructed with funds advanced pursuant to this subchapter shall be supervised and inspected as required by the Secretary? "
Carter G. Phillips: Well, I mean, as required by the Secretary. Nothing that we have specifically requires us to do more supervision of the construction. We do supervise to the extent that we provide plans and general architectural information to contractors that we hope... that we expect that they will follow, and we follow that up by inspecting the house to try to see that there is some conformity between the plans and the way the house is developed.
Sandra Day O'Connor: And it is your position that the Secretary has never authorized any supervision of construction?
Carter G. Phillips: Not in the way that would be anything other than by... that would be covered... not in any way that is not covered under the misrepresentation exception to the Tort Claims Act.
Sandra Day O'Connor: And Section 1822.7, which says, "Supervision will be provided borrowers to the extent necessary to achieve the objectives of the loan and to protect the interests of the government? "
Carter G. Phillips: Sure, because that doesn't... that still is supervision of the borrowers. It is not... We don't supervise construction. It is not as though the government assumes a position of foreman for Home Marketing Associates. We go out and we inspect it. That is the primary method by which we supervise. There is additional supervision in that we supervise the loan to make sure that the moneys are spent properly, and there is additional information, and the provision of architectural services is a form of supervision. But all of that, I submit, is supervision that would be barred under the misrepresentation exception if there is a basis for it.
Sandra Day O'Connor: Are you arguing that the government has under the laws established here no duty to the owner of the home, that the law creates no duty in this area?
Carter G. Phillips: Well, I mean, that is what the district court held, and the court of--
Sandra Day O'Connor: Was that your position?
Carter G. Phillips: --We did not argue that in this... It would be my position, that we owe no specific duty to this... to the Respondent in this case. That's correct.
Sandra Day O'Connor: Under the law.
Carter G. Phillips: Under the law. That while we do... I mean, there is no... The regulations provide general obligations to act, but the only duty that would ever occur would have to come out of state law, and that, we say, is... and to the extent a duty would have existed--
Sandra Day O'Connor: Well, how about the federal law? Do you think that the federal law indicates that there is no intention by Congress to benefit the homeowner--
Carter G. Phillips: --Well, no--
Sandra Day O'Connor: --by these services?
Carter G. Phillips: --No, I... no, that is not our submission. We recognize, just as in Neustadt, that this statute is designed to provide some benefits. I mean, almost all federal statutes are designed to benefit individual citizens. This is one of them. The primary purpose of this statute, we have submitted, is to protect the government's security interest. In doing that, we will in most instances also protect the homeowner, but that is only incidental to what I submit is our primary mission, at least as interpreted by the Farmers Home Administration, which is a reasonable interpretation of the statute and the regulations.
Sandra Day O'Connor: And there is no secondary duty?
Carter G. Phillips: No secondary duty that would give rise to any kind of tort liability.
William H. Rehnquist: If the government is responsible or assumes responsibility for anything like architectural supervision, that certainly is... the thrust of that sort of a liability, if they fail to perform it, isn't misrepresentation at all. If you are an owner and hire an architect, and the architect defaults on his obligation to supervise, the gist of your claim against him isn't that he didn't tell you that a lot of things were bad in the place, it is that he didn't have them fixed.
Carter G. Phillips: We recognize that there is a difference between misrepresentation and various forms of malpractice. But all we are saying here, I mean, we didn't hire an architect of any sort. What we did was, we had an architect draw up plans that would be usable for all rural residents, and we have a variety of those plans that exist, and we just hoped that they would be followed. That's all.
Byron R. White: I thought you identified the question in the case as whether the United States has waived sovereign immunity for this kind of a tort action.
Carter G. Phillips: Yes, Your Honor.
Byron R. White: So whether you owed a duty or not or whether you broke it is irrelevant to that question.
Carter G. Phillips: Well, that is correct, except that under this Court's decision in United States versus Neustadt, the way the analysis should run is, first, whether the basic activities of the government are within the misrepresentation exception which we submit means an inspection which may be negligently performed followed by certification of some facts followed by injury. That is what the misrepresentation exception is designed to deal with. This Court went further and said it could well be that even though this is within the misrepresentation exception, there could be some... there may have been indication in the '34 Act at issue there that for some reason Congress intended to supersede the misrepresentation exception, and Respondents have seized on differences between the '34 Act and the '49 Act to suggest that that secondary analysis in Neustadt is satisfied in this case. Our position is that there is nothing different in the '49 Act and the '34 Act. It is clear that Congress did not intend for the government to warrant the quality of the Respondent's house in this case. As we have... I may be going over some ground, but Section 1346 obviously provides a general waiver for... of the government's sovereign immunity. The exception that we are concerned with here is for misrepresentations. Our submission is that the decision of the Sixth Circuit is fundamentally inconsistent with the decision of this Court in United States versus Neustadt.
Sandra Day O'Connor: Mr. Phillips, let's assume for a minute that the complaint did allege something beyond misrepresentation, alleged that there was a duty on the part of the agency to force the builder to fix the home by some means, and the complaint alleges that. Now, is that obligation of the government in your position a discretionary act by the government?
Carter G. Phillips: You mean, within the meaning of Section 2680(a)?
Sandra Day O'Connor: The government has discretion? Yes.
Carter G. Phillips: Well, I would guess... I mean, it seems fairly clear... it depends on how the regulation would be stated, I guess. If there were a regulation in this case that said that the government must discover every defect and must make every defect corrected before any moneys will be released, then it would seem to me we would be hard pressed to argue that that is a discretionary decision, because the regulation will have essentially taken away all of our discretion. But if the regulation merely suggests that we should have inspections, and there is some general possibility that we might withhold money depending on the circumstances, then it would seem clearly to be within the discretionary function exception.
Sandra Day O'Connor: Well, then, what is it... what do they require? Is it discretionary or not?
Carter G. Phillips: Well, I think it is clear... it would clearly be discretionary. There is nothing in the regulations... I mean, I think it is important to realize in this case that the Respondent has received reimbursement for the heat pump and other major structural defects in this house under an administrative program, and the only defects we are talking about now are essentially cosmetic defects. It is inconceivable, and there is nothing in the regulations that would provide to the contrary, that Congress anticipated that we would hold up all loan moneys for the correction of all potential cosmetic defects in a house. As we suggest in our brief, and I don't believe Respondents deny it, there is no new house that I have ever known and that anyone has known and that the contractor even in this case in his testimony had ever seen that doesn't have some problems in it. And it can't be that the government will be responsible to correct all of those. And that is why there is nothing in the regs. So, clearly, there is some discretion. You would release money and expect that the contractor would make good on it.
John Paul Stevens: Well, but Mr. Phillips, Mr. Phillips, you are not suggesting there is discretion to make a negligent inspection, are you?
Carter G. Phillips: Well--
John Paul Stevens: Assuming there were a duty to inspect. I understand you deny there is such duty running to the borrower, but assuming there were a duty to inspect, would it not be a duty to inspect with due care?
Carter G. Phillips: --If there were... if this were a private person who undertook... we don't... although there is no development factually of what went on here, we don't deny that it is certainly possible that a private inspector could be held to a duty to exercise due care under the good Samaritan doctrine.
John Paul Stevens: All right, and if we accept the allegations... if we accept the allegation in the complaint, must we not assume... maybe it's not true... that the inspection was conducted negligently?
Carter G. Phillips: Well, that's right, and we don't dispute that.
John Paul Stevens: And had the inspection been conducted properly, they would have discovered the defect and they wouldn't have paid for the heat pump.
Carter G. Phillips: Well, but I mean, that is just as true under United States versus Neustadt. In that case--
John Paul Stevens: Well, but that goes to the issue of misrepresentation. We are now talking about--
Carter G. Phillips: --You just want to ignore the misrepresentation--
John Paul Stevens: --For this very narrow purpose.
Carter G. Phillips: --I would be prepared to concede for purposes of this argument that that is right. There would be a duty, and that would have been a violation of the duty. We don't have any quarrel with the Court at least here now with the Sixth Circuit's holding that this might well violate the good Samaritan doctrine. Our submission is obviously that it is also a misrepresentation, and therefore--
Warren E. Burger: Prior to 1946, would there have been any action sustainable against the government, prior to the Tort Claims Act?
Carter G. Phillips: --No, Your Honor.
Warren E. Burger: The Tort Claims Act, did it waive all sovereign immunity, or did it have some exceptions?
Carter G. Phillips: It has a very lengthy set of exceptions.
Warren E. Burger: For governmental functions, primarily discretionary governmental functions.
Carter G. Phillips: That's correct, Section 2680(h).
John Paul Stevens: But again, you are not relying on that in this case.
Carter G. Phillips: No, we don't rely on the discretionary functions.
John Paul Stevens: You are just relying on the misrepresentation exception.
Carter G. Phillips: That's correct, Your Honor. Our position here is that there is no... that this Court cannot affirm the holding of the Sixth Circuit without overruling its prior decision in United States versus Neustadt, and that it would be wholly inappropriate to do that. Neustadt involved simply an interpretation of Section 2680(h), a provision that Congress enacted in 1946 and has allowed to remain in effect since 1961, when this Court decided Neustadt. If its feeling was that the interpretation of this Court was improper or unduly restricted the rights of recovery of individuals in Respondent's position, we can only presume that it would have changed it. Instead, what Congress has done is, one, passed additional legislation providing for inspections relying upon this Court's decision in Neustadt, and more fundamentally, has passed 42 USC Section 1797(c), and this case--
Harry A. Blackmun: You find no difference in the two Acts, the one involved--
Carter G. Phillips: --No difference that would make any kind of a difference to take the case out of the misrepresentation exception. I don't believe that anything in the 1949 Act provides any stronger basis for arguing that the government has warranted the quality of the house, and that is the only thing that I can understand the Court to have meant in the second part of its holding in Neustadt, because otherwise... I mean, it is within the misrepresentation exception, but it may be that the government went ahead and warrants the house, but the '49 Act makes clear that that was not the intention, and no other court has ever held that it was the intention. You know, no court in reviewing the legislative history has indicated that Congress intended to warrant the quality of all of these houses.
Thurgood Marshall: --Isn't there a difference that in Neustadt the misrepresentation was made before the purchase, and here it was made after the purchase?
Carter G. Phillips: Well, there is some dispute about that. Nothing in the record indicates precisely when the check was delivered to the Respondent in this case. The employees of the Farmers Home Administration have informed us that while the check was formally dispersed from the Farmers Home Administration's central office on the date listed in the record in the Joint Appendix--
Thurgood Marshall: That is not in the record.
Carter G. Phillips: --I am sorry?
Thurgood Marshall: That is not in the record.
Carter G. Phillips: No, Your Honor, that is not in the record. To the extent you are interested in the extra record facts, a check was handed over--
Thurgood Marshall: I didn't say... I didn't say I was interested in facts outside the record.
Carter G. Phillips: --Okay, Your Honor. What we can say, I think, is that it is inconceivable that the Farmers Home Administration would hand over a check without having made its final inspection, and therefore we believe it is a fair inference from all of the circumstances to conclude that we didn't actually send the check away until after we had engaged in the final inspection. At least that is the standard practice, and there is no reason to think that it was deviated from in this case.
Harry A. Blackmun: Suppose the inspection had not been made at all. What would be your position?
Carter G. Phillips: Well, the regulations don't actually require us... I don't... my recollection is that the regulations suggest that we make inspections at various times. I would guess that if it turned out that the Farmers Home Administration had good reason that it couldn't... simply was not in a position to inspect a house at the times that it had to, that that would not violate the regulations. The most we would do is tell her that we are having some difficulty, but I don't see that that would create any cause of action. Again, all this... all tort liability--
Harry A. Blackmun: That is essentially this case, isn't it?
Carter G. Phillips: --I'm sorry?
Harry A. Blackmun: That is essentially this case. It is true she went out, but her testimony on the stand is rather devastating. She wasn't trained. She didn't know what to do on an inspection, and didn't inspect, and filled out the papers.
Carter G. Phillips: Well, she looked through the house. I don't know what... I mean, presumably any kind of obvious defects in the house could have been discovered, even on the... even with that kind of an inspection. It is not likely she would have been able to discover whether the proper manufacturer's name appeared on the heat pump based on the kind of inspection we are talking about here.
Harry A. Blackmun: Well, someone else went out later and discovered all kinds of things.
Carter G. Phillips: But, see, there is an inherent advantage, if somebody has been living in the house for two months, and has started to use the house and the dwelling. You find out things as you go along. It is simply not reasonable to expect the government... even if we had the best inspectors in the world and took time, it is most unlikely we would discover every conceivable defect in a house prior to the moving in of the... or prior to the final settlement of the house. The Court in... This Court in United States versus Neustadt made plain what I think is the proper approach in these cases. The question is... It recognized that the traditional common law rule of misrepresentation recognized tort in the situation where there is an inspection followed by certification of a fact followed by injury in reliance on that fact. And that is precisely what is involved in this case, and a misrepresentation exception should be applied in this case, just as it was in Neustadt. I think it is important to realize that this is not an overreaching use of the sovereign immunity doctrine. Respondent has received recovery. The Congress provided for her under an administrative relief program that was adopted in clear recognition that she would not have recovery under the Federal Tort Claims Act because of this Court's decision in Neustadt, and unless... and in order to hold as the Sixth Circuit did, it would have to be in absolute disregard of that enactment. We submit that is incorrect, and we ask this Court to reverse that judgment. If there are no other questions, I would reserve the balance of my time.
Warren E. Burger: Very well. Mr. Croce.
Lenny L. Croce: Chief Justice, and may it please the Court, despite the government's attempt to torture the allegations in the complaint in this case to fit the misrepresentation exception to the Tort Claims Act, this case was not, is not, and cannot be a case that arises out of misrepresentation. First, I will state the bases of Ms. Neal's claim, and then secondly, I will show that the relationship and conduct of the parties created a duty of care running from Farmers Home to Ms. Neal. Ms. Neal asserts in her complaint that Farmers Home employees negligently planned and supervised the construction of her home. This claim included the following omissions and commissions.
William H. Rehnquist: Mr. Croce, are you reading from the complaint now, or summarizing it?
Lenny L. Croce: I am not reading from the complaint. The complaint alleged negligent planning and supervision of her home, and that they breached a duty of care to her in exercising those activities.
William H. Rehnquist: And then you are about to go into a list of the omissions.
Lenny L. Croce: Yes.
William H. Rehnquist: Are those contained in the complaint?
Lenny L. Croce: Those are contained in the factual allegations of the complaint, which preceded the cause of action, the statement of a cause of action. First, that Farmers Home failed to recommend and approve a reputable and competent builder. The complaint alleges that the builder was disbarred subsequently, and the depositions had attached a letter which showed that builder had nine other complaints against it, not just Ms. Neal. Secondly, that the officials failed to obtain accurate and complete plans for Ms. Neal's home. In the complaint we allege they received a totally different set of plans that what they were supposed to be for Ms. Neal, and that those plans didn't have any plans for the heating and cooling duct system. Third, that the Farmers Home did not properly review the plans and specifications of Ms. Neal's home. Ms. Wells admitted she didn't look at the plans. Fourth, that the Farmers Home did not properly supervise the expenditure of Ms. Neal's loan proceeds. There was money paid out before the first inspection was made. Farmers Home failed to detect defects in Ms. Neal's home. That is quite evident. They failed to reject defective working materials or to require their correction. Finally, they failed to carefully inspect her home. Out of this extensive negligent conduct, which lasted over a period of months and involved several Farmers Home employees, the government extracts out one single inspection report and seeks to rely upon it to deny Ms. Neal her day in court. An examination of the facts alleged in the claim and gleaned from the record here shows that the graveman of Ms. Neal's complaint is negligence, not misrepresentation. We must review the conduct in relationship in the transaction between the parties. When we do, that shows that a duty... that Farmers Home undertook activities which they had a duty to perform with due care. In 1976, Ms. Neal was a 48-year-old cafeteria worker in a local elementary school. The home she was living in was falling down around her, literally. She didn't make much money, a little over $3,000 a year. When she couldn't find housing she could afford herself, she went to the lender of last resort, her local Farmers Home Administration office. Ms. Neal filled out an application. She was certified eligible. Ms. Neal was referred by the county supervisor to a local builder of prefabricated homes. They reviewed plans which purported to be for her home. They supplied a form construction contract which had a special clause in it which gave Farmers Home the right to inspect, test, and examine materials, and to reject defective materials and require correction. Before construction began, she executed a promissory note to pay back the loan. She executed a deed of trust to secure the note. And then the proceeds were put in a supervised account which required not only her signature but an official from Farmers Home's signature to release the funds. Three dispersements were made. The last one that we know of was made on September 30th, and then they made three on-site inspections, the last one occurring on October 3rd. Now, after she moved into the house, she discovered things weren't right. She didn't have any heat. The ducts were falling apart. The plumbing had 90-degree bends in it. She couldn't find her water heater. The concrete block foundation had blocks missing.
William H. Rehnquist: What time of year did she move in? Does the complaint say?
Lenny L. Croce: What time did she move?
William H. Rehnquist: What time of year did she move in?
Lenny L. Croce: She moved in some time in October, Justice Rehnquist.
William H. Rehnquist: Well, couldn't she figure out the minute she moved in that she didn't have any heat?
Lenny L. Croce: Your Honor, that was not in the record, and I can answer your question. Whenever the confusion came up, when the exact payment was made, I said, we never did find out when you moved in, Ms. Neal. I called her up. She said, well, I had to move in October 1st because the owner of the house I was in was tearing it down and said I had to be out before October 1st-- The house presently is not even now fastened to the foundation, and there is no exterior sheathing which provides any moisture barrier, which subjects the house to weather conditions. To say that these activities undertaken by Farmers Home engendered no reliance and created no duty of care simply defies common sense. She couldn't find housing. She couldn't afford it. She didn't have much education. She went to Farmers Home for a house. They took her application. They checked her credit. They determined what amount she could pay back. They determined how much of a house she could get. They set the minimum standards. They set the maximum payments. They engendered total reliance upon them to supply the means, the know-how, the supervision and inspections needed to provide Ms. Neal safe and decent housing. This relationship between Farmers Home and Onilea Neal and the extent of the supervision and control of the exercise necessarily engendered reliance by Ms. Neal upon Farmers Home.
Sandra Day O'Connor: Mr. Croce, under your theory, do you suppose that when the federal government through its agencies inspects a toy or a drug, for example, to determine whether the product is safe, and then declares it safe, that someone later injured because in fact it is unsafe has a cause of action under your theory against the government?
Lenny L. Croce: First, I want to make one thing clear, Justice O'Connor. This is not an inspection case. It is a negligence case. And in order to establish a claim for negligence, you must determine whether or not there is a duty of care running from the government to the injured party. That depends upon the relationship of the parties, the conduct and control exercised by the government to prevent the injury, and the foreseeability of it. It is certainly foreseeable in the fact situation you gave that a purchaser of a defective toy would be harmed, and if the government had control over that process, it may very well. I think the weakness in that case is the first criteria, and that is the relationship. In this case, Farmers Home and Ms. Neal had a direct one-to-one relationship which was clearly dependent. The question becomes whether or not that particular factor in the fact situation you suggest is strong enough to impose a duty.
Thurgood Marshall: Is it your position that Ms. Neal had no responsibility at all?
Lenny L. Croce: No, Your Honor, but the actions by the Farmers Home Administration and the extensiveness of it barred her or precluded her from seeking outside help. She assumed that Farmers Home was going to take care of everything.
Thurgood Marshall: You said barred her from seeking--
Lenny L. Croce: I think it prevented her. I mean--
Thurgood Marshall: --How?
Lenny L. Croce: --Because they gave her, by their conduct--
Thurgood Marshall: But she could have gone--
Lenny L. Croce: --and activities, that she was--
Thurgood Marshall: --She could have gotten a good inspection made and paid for it, couldn't she? Could she?
Lenny L. Croce: --Yes. Yes, assuming she had the money, but--
Thurgood Marshall: Well, then, you do say that the whole basis is, she had no responsibility.
Lenny L. Croce: --I don't say that. I think her responsibility would be conditioned upon what Farmers Home undertook or didn't undertake.
Thurgood Marshall: And?
Lenny L. Croce: In that they undertook what they did, she necessarily relied upon them to exercise due care.
Thurgood Marshall: And she had no responsibility.
Lenny L. Croce: That's correct. This case does not violate or conflict with any of the holdings in Neustadt or Indian Towing. In Indian Towing... This case is like Indian Towing, because a duty of care was running from... ran from Farmers Home to Onilea Neal, and that duty of care arises out of Farmers Home undertaking of services. If a private party had undertaken to provide Ms. Neal the services which Farmers Home undertook, and engendered the kind of reliance which Farmers Home engendered, that person would be obligated to use due care. If that party failed in its duty of care and damages resulted, liability would be found. Unlike Neustadt, the inspection report relied upon by the government is not an essential element to sustain Ms. Neal's cause of action. You could take away... You could take away this inspection report and delete it from the record, and Ms. Neal would still have a cause of action. If you took away the appraisal report in the Neustadt case, Mr. Neustadt simply does not have a cause of action. In conclusion, and I am going to be brief here, it is important to keep in mind three considerations. First, Ms. Neal is not asking this Court to hold Farmers Home liable. What she is asking is that she have an opportunity to prove her claim in court. Given a colorable claim of negligence, which she has clearly demonstrated, she should be entitled to pursue her claim before a trier of fact. If she had been given this opportunity--
William H. Rehnquist: Mr. Croce, do you think either the Sixth Circuit or the district court in this case passed on the question of whether her allegations apart from the inspection theory stated a claim against the government?
Lenny L. Croce: --Yes, I think the court of appeals clearly saw that we were talking more than just merely an inspection report. We were talking about all the activities that Farmers Home undertook.
William H. Rehnquist: Well, I don't read in the Sixth Circuit's opinion any specific pronouncement one way or the other about whether if you prove these facts, the government under either the '34 Act or the '49 Act did have an obligation imposed by statute to perform these services.
Lenny L. Croce: It is our contention that the statute, 506, and the regulations under that statute clearly impose upon Farmers Home an obligation to supervise and inspect.
William H. Rehnquist: I realize that.
Lenny L. Croce: I don't think that is really material, because whether or not Farmers Home performed those services under its statutory obligation or regulatory obligation or voluntarily undertook them, the fact is that they did. The crucial--
William H. Rehnquist: So part of your complaint is not only that there was a duty to supervise that was breached, but that the duty of supervision was undertaken whether required by law or not, and that on the good Samaritan theory it was negligently performed.
Lenny L. Croce: --That's correct. The crucial thing for the negligence claim is whether or not there was a duty of care, and the duty of care only arises under principles of common law, and in this case the principle of common law applied is the voluntary undertaking doctrine. If Ms. Neal had been given her opportunity to present her claim before a trier of fact, this Court and the parties could have avoided some of the confusion which has arisen regarding some of the facts. This confusion in this statement is probably inevitable in light of the fact that there was no trial, finding of fact, or record, complete record produced. We feel it would be inappropriate for this Court to issue an opinion which may have important consequences to tort law and federal housing policy on the basis of an incomplete record. Secondly, the government's assertion that Ms. Neal's claim is really a misrepresentation is a red herring. The facts alleged in the complaint and which are contained in the record cannot support the government's contentions. If the Farmers Home interpretation of the misrepresentation exception prevails, the Tort Claims Act itself will be emasculated. What was intended by Congress to be a narrow exception would in fact swallow the Act, and it would block legitimate claims by aggrieved citizens whenever there was communication in any form, and this is the precise opinion which this Court rejected in Indian Towing.
William H. Rehnquist: Neustadt began swallowing the Act, didn't it?
Lenny L. Croce: We believe it did to a certain extent, insofar as courts have had difficulty drawing a line in the continuum between negligence and negligent misrepresentation. It is our position that there are three factors, and they are all factual findings which must be made. You have to look at the relationship of the parties, the conduct of the parties, and the foreseeability in those three areas. You have to look to see whether or not this is in fact misrepresentation or negligence. Finally, the government and Congress under the Title V of the 1949 Housing Act created a program to assist low-income residents in the country to obtain decent and safe housing. This purpose of the Act is being frustrated by the negligent acts of the agency charged with this responsibility. We contend that if Farmers Home is permitted to deny Ms. Neal her day in court in this case, she and borrowers like her would be denied any opportunity to complain that Farmers Home by the negligence of its own employees has violated a fundamental purpose of the rural housing program. Farmers Home would be able to finance construction of the very unsafe, substandard homes which it is supposed to replace. It is important to note that the government has made a contention that the administrative relief under the 509(c) program creates some kind of exclusive remedy. First of all, the 509(c) program created the remedy in order to get the program back on track. In other words, Congress perceived there were problems primarily because adequate inspections weren't being made. However, there is nothing in the statute, nothing in the legislative history which suggests that Congress intended to cut off or substitute a remedy in lieu of the one provided under the FTCA. In essence, Congress didn't contemplate whether or not there was the existence or non-existence of any remedy under the Federal Torts Claim Act. Finally, the fear of vast financial liability is more properly addressed to Congress. Secondly, there has been no factual support of this vast fear. Farmers Home can exercise greater care in approving builders. It can require construction bonds. It can conduct more careful inspections. It can be more rigorous in requiring contractors to correct shoddy construction, and in fact, the claims paid out under the 509 program have declined between 1981 and 1982 from 292 claims to 106. It doesn't look to me that there is this vast financial liability lurking out there. Ms. Neal has sufficiently alleged negligence by Farmers Home employees. She is entitled to pursue her claim by trial. And we ask that the judgment of the court of appeals be affirmed.
Sandra Day O'Connor: Let me ask you just one additional question. Did the parties in the proceedings below have any occasion to discuss the application of Section 2680(a) of the Tort Claims Act, that possible exclusion?
Lenny L. Croce: No, Justice O'Connor.
Sandra Day O'Connor: Oh, thank you.
Lenny L. Croce: It wasn't raised in any of the courts below.
Warren E. Burger: Do you have anything further, Mr. Phillips?
Carter G. Phillips: Yes, Mr. Chief Justice, just briefly. The Respondent's submission goes... details a long series of problems with this house, and we don't deny that there are problems with her house, but what that submission does not indicate is what was the role of the government and what was its responsibility under this Act, and at bottom the responsibility of the government remains to inspect the house. The responsibility for the defects in the house must remain in the first instance on the private contractor. That is the person who builds the house, who supervises its construction and its placement into the--
William H. Rehnquist: Mr. Phillips, as I understand from Mr. Croce, the allegation... one of the allegations in the complaint is that the government undertook to supervise, and did so negligently.
Carter G. Phillips: --All that the complaint says is that the government negligently supervised. It doesn't in any way indicate anything other than through the inspection process how that supervision could take place.
William H. Rehnquist: But you don't indicate that in a complaint under the federal rules. You can produce all sorts of evidence that will support simply conclusionary allegations in a complaint. You can't try the case in a complaint.
Carter G. Phillips: I appreciate that, Justice Rehnquist, but if the only supervision provided for in the regulations and provided for in any of the factual statements is the inspection of that house, then to say that there has been negligent supervision is to say no more than that there was a negligent inspection of the house, and that is all the complaint states. It doesn't say that we did anything in any way other than our inspection of the house.
William H. Rehnquist: Well, but if they say... the allegations they could introduce in support of an allegation of negligent supervision go much further, I would think, than just negligent inspection.
Carter G. Phillips: Well, they couldn't... I mean, unless you are going to assume that there is something outside of the regulations, and there is no indication that anyone acted in addition to what the regulations provide.
William H. Rehnquist: Well, but the case has never gone to trial.
Carter G. Phillips: I understand that, but there has never been any claim anywhere that--
William H. Rehnquist: There is an allegation of negligent supervision in the complaint. Is there any allegation in the complaint that there was an obligation by contract or by statute or by regulation to supervise?
Carter G. Phillips: --No, Your Honor. There is nothing in there to that effect and the district court expressly found that there is no such obligation--
John Paul Stevens: Yes Mr. Phillips but is it not true that there is a distinction between an obligation to supervise and the authority to supervise? And is it not true that the statute authorized the government to supervise? It authorized the secretary to provide for supervision. Right. The statute specifically says in addition to the financial association, this is in Section 506-- --the secretary is authorized to furnish various things including construction supervision. And then the regulations say-- --supervision will be provided borrowers to the extent necessary to achieve the objective of the loan. Doesn't that in words authorize the supervision... period? Authorize even if it isn't required.
Carter G. Phillips: Thats correct but--
John Paul Stevens: Then if it is performed, then doesn't the Good Samaritan Doctrine come in to play?
Carter G. Phillips: --Only to the extent that the only way the supervision is performed is through the inspection process. As I said earlier--
John Paul Stevens: Well, but the statute says--
Carter G. Phillips: --we don't serve as the foreman for the construction company.
John Paul Stevens: --The statute says, authorized to provide construction supervision and inspection.
Carter G. Phillips: Yes, I appreciate what the statute says. All I am saying is that under the regulations--
John Paul Stevens: So you do have authority to supervise.
Carter G. Phillips: --Our regulations say that we will inspect, and that is done as our burden of supervision.
John Paul Stevens: Your regulations say you will supervise.
Carter G. Phillips: I am sorry?
John Paul Stevens: Your regulations say you will supervise.
Carter G. Phillips: To the extent necessary to help the borrower, which in this case means to undertake an inspection. That is the way I read them and understand the way the regulations work. Respondent at the end of his remarks mentioned the administrative remedy one last time and suggested that it is not intended as an exclusive remedy. Recognize that this case turns exclusively on what Congress has intended, and Congress has made clear what its understanding and intent under the Rural Home Loan Program would be, that is, that the program is designed to look just like the situation under the 1934 Act that was at issue in Neustadt, and it was because of Neustadt that Congress first enacted administrative relief for the FHA, extended it to the VA, and extended it to this statute. It was Congress's understanding that that is what the 1949 Act would lead to in terms of claims such as Respondent's in this case, and since it is this Court's interpretation of Congress's intent that controls, and the Sixth Circuit has disregarded that intent completely, we ask that its judgment be reversed.
Sandra Day O'Connor: Mr. Phillips, what is the specific provision in the agreement on which the claimant relied for the duty undertaken by the government? Is it the inspection of work section in the construction contract, Exhibit B to the complaint?
Carter G. Phillips: You mean in her cause of action for--
Sandra Day O'Connor: Yes, is that the section?
Carter G. Phillips: --Yes, ma'am. I believe that is the one that is--
Sandra Day O'Connor: All right.
Warren E. Burger: Thank you, gentlemen. The case is submitted.