Earl Warren: Number 209, Joseph Lyle Stoner, Petitioner, versus California. Mr. Dempsey?
William H. Dempsey, Jr.: Mr. Chief Justice may it please the Court. This case is another search and seizure case that comes here on a writ of certiorari to the District Court of Appeal for the Second District of the State of California. It involves applicability of the decisions in Mapp versus Ohio and Ker versus California to this particular state prosecution. The search and seizure took place in a hotel room that belonged to petitioner. The questions stated very generally are these. First whether the search and seizure were valid because incident to a valid arrest; second whether the search and seizure are somehow validated by the consent to the search and seizure that were given by the hotel clerk; third whether assuming that the search might have been valid, the seizure was nonetheless invalid because the items that were sized were neither means nor instrumentalities for the commission of crime, nor contraband, nor the fruits of a crime and finally, assuming that the search or the seizure was invalid, the admission into evidence of the items that were seized was mere harmless error and then the further question of course whether if that be so, the conviction should affirmed or reversed. The facts that bear upon these issues are not particularly complicated. They may be summarized I think something like this. The crime of which petitioner was convicted was a crime of robbery. The robbery was of a grocery store in the City of Monrovia, California. It took place about 8 o'clock in the evening of October 25, 1960. Two men committed the robbery. There were two eyewitnesses to the crime, employees in the grocery store. Shortly after the police of Monrovia started their investigation of the crime, the manager of the grocery store turned over to them a check book and a deposit book, a bank deposit book, which were traced to the petitioner. The check book reveled that two checks had very recently been drawn out to a hotel called Mayfair Hotel in the city of Pomona, California.
Potter Stewart: Where this had this check book and this deposit --
William H. Dempsey, Jr.: They had been found Mr. Justice Stewart in the parking lot, adjacent to the grocery store. It's not clear whether it was the grocery store's parking lot, but in any event a parking lot adjacent to the grocery store and shortly -- they have been found shortly after the crime. That's about as clear the record is on that. The Monrovia police contacted the Pomona police. They got a mug shot of petitioner. They found that he had a prior record. He had been convicted a murder and robbery before. They showed the mug shot to the two eyewitnesses, who said that this looked like one of the man who had committed the crime, but they wanted to see him in person. So the Monrovia police went to Pomona, two days after the crime on the evening of October 27. They conferred with the Pomona police for a while and then about 11 o'clock on the evening of October 27, two members of the Pomona force and two members of the Monrovia force went to the Mayfair Hotel. Now what happened then is critically important in this case and so I will take the liberty of reading the pertinent extracts verbatim from the record. This is one of the officers testifying at the trail. He said -- this is on -- excuse me Mr. Justice, this is one page -- beginning on the bottom of page 71, about two-thirds of the way down that page, and I'm going to skip some of the intervening material, I'm not going to read the whole thing, I'm just picking out portions of it. And I'm starting at about two-thirds down toward the end of the line where there is a long answer, right at the end the line it starts, we approached the desk, the night clerk and asked him if there was party by the name of the Joey L. Stoner living at the hotel. He checked his records and stated, yes, there is. And we asked him what room he was in. He stated he was in Room 404, but he was out at this time. We asked him how he knew that he was out. He stated that the hotel regulations required that the key to the room would be placed in the mail box each time they left the hotel. The key was in the mail box, that he therefore knew he was out of the room. We asked him if he would give us permission to enter the room, explaining our reasons for this. Question - what reasons did you explain to the clerk? Answer - we explained that we were there to make an arrest of a man who had possibly committed a robbery in the City of Monrovia, and that we were concerned about the fact that he had a weapon. He stated, in this case, I will be more than happy to give you permission and I will take you directly to the room. Then moving on down, we left one detective in the lobby, and Detective Oliver, Officer Collins, and myself, along with the night clerk, got on the elevator and proceeded to the fourth floor, and went to Room 404. The night clerk placed a key in the lock, unlocked the door, and says, be my guest. What did you do, question? Answer - we entered the room and the first thing that was observed was pair of horn-rimmed glasses lying on a desk in the northeast corner of the room. I picked the glasses up and looked at them and noted that they answered the description of the glasses described by one of the victims and then he identifies people's exhibit number three as the glasses, and then continuing down at the bottom of page, then what else did you do, question? Answer - then begin a systematic search of the room and noted that certain clothing in the room was along the same description as given by the victim or the victims and during the check of the bureau, Officer Collins pulled the drawers from the bureau to check them. The bottom drawer when he pulled it completely out we observed a gun lying on the floor, which is the gun which is now that's -- and he identifies it as people's exhibit number one. And the along side of this gun was some toilet paper, white toilet paper, which we unwrapped and it showed a number of cartridges for a 45 automatic and then he identifies that as one of the people's exhibits. And then down further on about two-thirds of the way down the page, question - was there anything else discovered in the room? Answer - there were certain address books and other miscellaneous evidence that was obtained, yes. Then he identifies the clip as one of people's exhibits and then over on page 74 he testifies that, another one the people's exhibits, a coat was also recovered from the room. Then he concludes, well at this time we determine that this would be the suspect in our particular robbery and we maintained an observation of the room or in the room, my partner and myself until approximately noon the following day which was the 28th of October. Then on noon of the following day, that is about 12 or 13 hours after the search and seizure, the police left the room because the petitioner had not returned. The petitioner was apprehended noon the next day, that is noon on October 29, about 37 hours after the search and seizure and in a different state in the City of Las Vegas, Nevada, apparently by the Las Vegas authorities. The Pomona police went to Las Vegas. They brought the petitioner back and three days roughly after the arrest and before he had been brought before a magistrate for preliminary hearing, before he had seen any attorneys, or any friends, or any relatives; he confessed to one of the detectives. Now I should note at this point that the question of the voluntariness of that confess is not before the Court. It was expressly excluded in this Court's order granting the writ of certiorari. This brings us then to the trial and when I describe what happen at trial I would like at the same time to deal with the question of so called harmless error. We submit that there is nothing to this question in this case and therefore the Court need not reach the question left open in Fahy versus Connecticut, whether in any event, even assuming that the error was only harmless the conviction should be affirmed or reversed. Now we deal with that further question in our brief, but we don't add anything particularly to the discussion on the Fahy versus Connecticut case. The prosecution at the trial relied primarily upon the testimony of the two eyewitnesses to the crime who identified petitioner as one of the robbers. The testimony of the alleged accomplice who had turned state's evidence and who had plead guilty and was sentenced, and the testimony of the police officer who testified with respect to the confession and the search and seizure. The defense on the other hand relied primarily upon the testimony of two men or one woman and one man, who said that the petitioner had been with them at the time of the crime. They also of course attempted to attack the credibility of the alleged accomplice on the theory that he had -- he was testifying in exchange for the light sentence which he had admittedly got, and they tried to shake the identification testimony of the eyewitness. So that basically the conviction turned upon a resolution of the problem of credibility by the jury and in attempting to shore up the credibility of the eyewitnesses, the state relied very heavily upon these articles that had been seized from the room; that is the gun, the coat and the eye glasses.
Potter Stewart: Were they introduce into evidence?
William H. Dempsey, Jr.: Yes they were Mr. Justice Stewart.
Potter Stewart: Where in the record?
William H. Dempsey, Jr.: Let's see.
Potter Stewart: You read as where they were identified.
William H. Dempsey, Jr.: Yes.
Potter Stewart: But that --
William H. Dempsey, Jr.: My opponent is helping me. He tells me that they were admitted on page 75 of the record and he is quite accurate in that respect. The, what the prosecutor did was to, was to show the gun and the glasses and the jacket to the eyewitnesses and asked them whether this appeared to be the gun that the petitioner had used or that the robber had used and -- the gun and the eye glasses and the jacket that he had worn at the time of the crime and they said, yes they appear to be. The -- Shails, that is the alleged accomplice testified to the same effect except I -- my collection is that he testified that the jacket was in fact was not the jacket that the petitioner had been wearing, he did identify the gun however and the police then testified as to the circumstances of the search and the fact these items have been obtained from petitioner's room. Now as I understand the test under Fahy, it is simply whether there is a reasonable possibility that the introduction of this evidence, these items into evidence contribute, it may have contributed to the conviction. And in these circumstances we submit that there can't be any genuine doubt that they did. The state suggests, as I understand it, first that there was a plenty of evidence otherwise but we think that that's been squarely put aside in the Fahy case, that kind of a test and they suggest secondly that the prosecutor could have used items which were like these items but not really the genuine article that is sort of mock-ups and put the same questions to the witnesses but that misses the whole point. The impact of this evidence lay in the fact that as the police testified it had been taken petitioner's hotel room thereby the state was able to link the petitioner with the crime by objective evidence that had been seized from that hotel room. Now that's our argument with respect to the question of harmless error in this case. I turn then to very briefly I think unless the court wishes me to pursue it to the question of search incident to arrest. Now this was the ground upon which the lower court based its decision.
Potter Stewart: Well that's no longer an issue.
William H. Dempsey, Jr.: Well I, if I am, if I am free to rely entirely upon the concession of the state it certainly isn't and of course it's open to the court to decide, but the state now does concede and they didn't argue in the court below that the search was incident to arrest, it was 37 hours after the arrest and in a different state. This brings me then to what I take to be the principle argument of the state and it turns upon the consent to the search that was given by the hotel clerk. Now petitioner of course didn't consent, there isn't any question about that. The room clerk said, be my guest. I observe at the outset what I take to be obvious and that is that if the state's argument is accepted, it has the most far reaching implications. Now there are two branches to the argument; the first is that the room clerk as a matter of state law had actual authority to consent to the search and the second branch is that, assuming arguendo he didn't have actual authority, he had apparent authority and therefore it was reasonable for the police to rely upon this consent.
Speaker: Is there evidence that this man had checked out of his room?
William H. Dempsey, Jr.: That he had checked out of his room, oh no Mr. Justice Harlan, no evidence that he had checked out at all. There is no dispute in the record here that that he was paid up current. That would be an entirely different case, no. If the actual authority argument is accepted it means that every hotel in the State of California is open to a search without a warrant, solely within the discretion of a hotel clerk. And if the apparent authority argument is accepted, it means that every hotel in the United States to open to that kind of a search, at least so for as I can see. I don't perceive any limitations on this argument in the state's say, in the state's brief and none occurs to me. Now --
Arthur J. Goldberg: (Inaudible)
William H. Dempsey, Jr.: Yes, I'll -- I do argue that state law is not bad with respect to actual authority. I do argue that and let me turn to that immediately. The -- now if there were a state statute that said something like every hotel clerk in the State of California has this kind of authority I would think that that would pose a very serious constitutional question. It would be -- it would amount to frontal assault upon the protection that would otherwise be accorded by the Fourth Amendment of hotel rooms. Now that isn't this case.
Arthur J. Goldberg: (Inaudible)
William H. Dempsey, Jr.: Yes it is.
Arthur J. Goldberg: (Inaudible)
William H. Dempsey, Jr.: You do, you do Mr. Justice Goldberg, you certainly do and that's what this court held or stated at least in the case of Jeffers, United States versus Jeffers, which we submit as controlling at least in the absence of a very particularized state statute bearing on the subject which as I say, would raise a serious constitutional question. Now what the court, what the court said in Jeffers, in circumstances that seem to me to be entirely indistinguishable from those here was that as you pointed out, guests in hotels have impliedly consented to entry by the hotel to service, to repair, and I suppose that the court might have gone further in Jeffers and said that if there is a, if there is a ruckus going on in the room it maybe that the hotel management has the right to come in and make people be quite. But the court held in Jeffers that that kind of implicit consent that arises out of the nature of the contract between the guest and the hotel management does not extend to authorizing the management to consent to a search and seizure without a warrant by the police. Now --
Arthur J. Goldberg: (Inaudible)
William H. Dempsey, Jr.: Now the house detective Mr. Justice Goldberg it seems to me is there -- now he doesn't -- I don't think he has any authority different than that of hotel management. He is simply the, the person in the hotel establishment that can take whatever action the management can take. And what I am suggesting is that in a circumstance of a fight or something like that where peace is being disturbed, it's a hotel detective that exercises the right to go into the room and make them be quiet. So that I don't think that the fact that they have someone on their staff who is labeled house detective carries us any further than we would be otherwise. The Jeffers case I suggest is controlling here at least in the absence of some unusual state law doctrine and what we are dealing with after all is a, at least as I view it is a question of wavier of a constitutional right. Now I don't say that yes that hotels can't waiver their constitutional right. If a hotel wishes to retain to itself this kind of authority I assume they can put it in a contract that you sign when you come in, or they might put a sign on the -- along side the desk when you register saying that this hotel reserves this kind of a right. They might not get as much business as they otherwise did and presumably that's why they don't do it, or one of the reasons, but that isn't this case. You have to in some way imply consent in circumstances that are not distinguishable from Jeffers and I would add are not distinguishable from Lustig either, although the question was not, was not discussed at any length in Lustig, but certainly the holding of Lustig is that a hotel clerk does not have this kind of authority. I turn then to, to what is asserted to be a state law which might overcome the barrier that the state faces in view of Lustig and Jeffers. Now this state law, we have examined the cases carefully that the state cites, this state law doesn't bear in any respect it seems to us upon the problem. Not only are the decisions that the state cites, not search and seizure cases, but they don't even go in any respect to the right of hotel management to enter a room. They deal with the relatively esoteric questions or maybe that's the wrong word, but certainly unrelated questions such as whether hotel management has a right to keep a guest's bags when he leaves without paying his bill, whether they have the right to bring an unlawful detainer action to get him out of the room if he doesn't pay. Now these are the kind of state doctrines that the state relies upon here, and we respectfully submit that they simply don't meet the problem. Rather these are, these are the kind of local law doctrines that were involved in a case like Chapman. Well, they don't even go as far as Chapman, but in Chapman the court will recall the landlord, the landlord went to the lease premises on a Sunday morning wanting to invite people to go to church, he had known them before, he smelled mash, he thought that there was a distillery operating which indeed there was. The local police came, and he said, well if it's what I think it is, you have my authority to go in. The police went in through a window there was still operating, they seized and this Court struck down the conviction on the ground that the search and seizure had been unconstitutional. Now in this Court, the government relied in part upon an asserted local law or common law doctrine that gives a landlord the right to enter premises to view waste and one of the responses that this Court made to that argument was that this kind of local law that's rooted in the property law differences as respects the rights of guests and licensees and invitees the kind of distinction that the court had put aside in the Jones case in dealing with problem of standards simply could not be relied upon in order to justify what would otherwise be an unlawful search and seizure under the Fourth Amendment. Now in the case at bar, we don't even have to deal with a situation as troublesome, if it was troublesome, as the court did in Chapman because at least in Chapman, the local law doctrine that was relied upon had to do with the rights of the property, the person who had interest in the property to enter to premises and here the local law doctrines don't even bear upon that. And I should add that the one case that seems to us to be clearly in point in the various cases cited by the state is the one called People versus Burke. Now there the question was whether a hotel clerk had or a hotel management had apparent authority to consent to a search. The Court held that it -- that hotel management did not have that kind of authority and certainly implicit in this holding was the holding that they didn't have actual authority because this is the further problem if there is no actual authority then you go to the question of whether there's apparent authority. So that the one case it seems to us to be clearly in point negates the kind of local law doctrine that's contended before by the state here.
Hugo L. Black: (Inaudible)
William H. Dempsey, Jr.: Yes, it is in my reply brief Mr. Justice Black yes. It's --
Potter Stewart: Page 7, of your reply brief.
William H. Dempsey, Jr.: Thank you. Yes quoting from Burke the mere fact that a person is a hotel manager does not import an authority to permit the police to enter and search the rooms of their guests. There is no case cited by the state that cuts across Burke. There are some state court opinions, one in particular called Ambrose which seems inconsistent with Burke with respect to apparent authority, but there is none that cuts into this Burke holding with respect to actual authority. Now the apparent authority argument, I think I've dealt with it at about the same time as I dealt with the actual authority argument because if there was no apparent authority in Jeffers and if there was no apparent authority in Chaplin, there's certainly is no apparent authority here. To a certain --
Potter Stewart: What does that kind of set mean here? Certainly the room clerk acted as though he had authority, didn't he?
William H. Dempsey, Jr.: Yes.
Potter Stewart: He said in that case, I'll cooperate with you and be guests, be my guests, he certainly gave all the indicia of his belief that he had authority.
William H. Dempsey, Jr.: Well I don't know that I'd be willing to concede that.
Potter Stewart: Well then we're going too far but he acted on authority, did he not?
William H. Dempsey, Jr.: He granted permission Mr. Justice Stewart. In California they make a distinction here. They make the, as I read their cases, they make the person who let them into the room get on the stand and say yes I thought I had authority so that I think I would be cutting across California decisions even if I went as far as to –
Potter Stewart: Just asking what you do mean by it, by apparent --
William H. Dempsey, Jr.: Oh! Well I think that -- of course it's the state's argument, I am reluctant to paraphrase it for them. As I understand their argument it's not really an apparent authority argument. That sounds like agency law problems and I would suppose there isn't apparent authority here in that sense because the defendant did nothing to contribute to this so called apparent authority except rent a room. So that I should think what they mean is that when somebody like a room clerk says all right come on in, it's reasonable for the police to go in and assume that he has authority even though he doesn't. Now that's the heart of the argument it seems to me.
Hugo L. Black: (Inaudible)
William H. Dempsey, Jr.: On this Mr. Justice Black?
Hugo L. Black: Suppose California law undoubtedly had attempted to provide that in that state hotel manager would have the right to go into the rooms of their guests, they suspected that they are guilty of a crime, had something that -- evidence of the crime, you challenge the constitutionality of that?
William H. Dempsey, Jr.: Yes I would Mr. Justice Black, I would.
Hugo L. Black: You would say that first amendment -- Fourth Amendment.
William H. Dempsey, Jr.: I would, I would.
Hugo L. Black: Forbade such a law?
William H. Dempsey, Jr.: That's correct. This as I say this is a not here problem certainly state law bears upon the Fourth Amendment, if state law provides if you lose your property rights in a room, if you don't pay the rent, well that has a direct effect on whether that room is protected by the Fourth Amendment, but a state statute that would be expressly aimed at cutting back the protections of the Fourth Amendment, I would challenge yes, I say the issue is not here but I certainly would. Yes Mr. Justice.
Speaker: (Inaudible)
William H. Dempsey, Jr.: I am –
William J. Brennan, Jr.: We're aware what the state offense is but it'd still be the problem for us whether that is satisfactory (Inaudible)
William H. Dempsey, Jr.: Oh! Yes Mr. Justice Brennan. I don't think that – I don't think the state asserts that there is a rule such as the one described by Mr. Justice Black or I would have addressed myself more directly to the problem that he raises.
Hugo L. Black: Would be contrarily to Jeffers –
William H. Dempsey, Jr.: I, that would be my argument, my argument would be that it would be contrary to Jeffers and to Lustig and to Chapman.
Hugo L. Black: (Inaudible) state property law was of that kind.
William H. Dempsey, Jr.: Not in Jeffers or Lustig Mr. Justice Black it was raised in Chapman of course in the context of a tenant landlord rather than hotel guest, but the argument that I make would be the same. And I think it is worthwhile noting in the connection Mr. Justice Stewart with respect to the so called apparent authority doctrine that in Chapman, Mr. Justice Frankfurter in his concurring opinion raised this argument, not in, not calling it apparent authority, but speaking in terms of the reasonableness of the action of the police officers and rejected it, so that in that case the matter was squarely put. Now I have got a few minutes I would like to touch just briefly on this question of the character of the items that are -- that were seized here. It's our position that assuming for the moment that the search was valid but the seizure was invalid because in no circumstances could the glasses or the jacket be considered means or instrumentalities of committing a crime or fruits of the crime at least absent some question of disguise. Now I think the state maybe intimating that there is a problem. I have not cited in my brief but I would like to cite now references to page 24 of the transcript in which one of the witnesses said that there was nothing unusual about the hat. And page 20 -- page 30 of the transcript in which the witness said that there was nothing unique about the horn-rimmed glasses. Now the hat is not in question I don't want to misstate -- overstate my case here, but -- and there is no suggestion that there is anything about the jacket that could have been a disguise and I suggest that there is nothing about the glasses or the hat and no indication that there is any about the jacket, there wasn't any disguise question in this case. And in those circumstances I say that this, these items simply don't meet the test of the Boyd case. Now, the state says well even so the Boyd rule is one only of evidence and not a constitutional law upon that we rely on the cases. We think that the Boyd is quite claimed. This is an important ingredient of Fourth Amendment law. It's always been regarded that way, we think by the Court as late as the Able case and if the state thinks that there could be a better rule, we suggest that foreclosed to that, and we suggest that under the rule of Ker versus California, this doctrine as an important ingredient of Fourth Amendment law is to be applied to the states. The question of means of instrumentalities and contraband does have a policy basis. It's spelled out in the Boyd case I suppose with the most clarity. It is the policy of the fifth amendment as it sheds light on what's reasonable in terms of the Fourth Amendment provisions yet the state normally doesn't have a right to take your property away from you and the Boyd case said that -- and it has been repeated in cases since then that normally taking a man's property from him and using it in evidence against him is tantamount to forcing him to testify against himself so that there must be something over and above this kind of interest that gives the state the right to seize the items in question. Now historically contraband means instrumentalities of committing a crime fruits of a crime all of these were subject to seizure not because they would then be used against a man, but simply because the man had no possessory right in these particular items. And in consequence that's the policy basis the state as I say may disagree with it, but it -- we submit that it's a substantial one. Thank you.
Earl Warren: Mr. Smith.
Arlo E. Smith: Your Honors, facts -- pardon me, the facts of this case are quite simple. However, the application of those facts to the law and the effect of that law upon our federal system is very complex. There are three questions presented here; first, whether or not the search of this hotel room was reasonable; secondly, whether or not the items seized in that search come within the prohibition of the so called means and instrumentalities rule; and finally, whether or not if the search were improper, the seizure were improper, the introduction of that evidence into the case resulted in error, whether or not that error was prejudicial, whether or not the states to the Fourteenth Amendment should be bound not only to exclude unreasonably obtained evidence, but to automatically reverse every case in which such an error occurred. The search here was conducted of a hotel room in Pomona. The defendant was then in Las Vegas. He was arrested two days later in Las Vegas, approximately 200 miles away from the hotel room. We do not hear nor did we below argue that this search can be justified as an incident to the arrest of Stoner in Las Vegas. We contend here, as we urged below, that the officers entered that room with a proper consent of the management, that they entered believing in good faith that the manager had the right to give them that consent. California law on this question, we feel, is quite clear. Counsel for petitioner seems to feel that it is quite unclear. We have cited to you general cases safe -- referring to the authority of an innkeeper over the -- all of the premises, including the room. This apparently is not uncommon. Last Sunday while reviewing this case without announcing himself a member of the -- an employee came upon me; luckily I was properly attired to meet both guests and agents of the innkeeper. This is a matter of implied contract, implied understanding between the parties. We feel that the California law is quite clear. We have cited to you the case of People versus Ambrose. We think it covers the application of these rules in the criminal case. Petitioner's counsel suggests to you that this is inconsistent with another California case, the case of People versus Burke, which we cited to you also. The Burke case, however, is -- goes off in an entirely different point the holding of that case is that the search of the hotel room was proper because the officers had reasonable and probable cause to arrest the defendant. They held that it was inconsequential if the officers had entered the room on prior occasions because it had no bearing upon their reasonable and probable cause. That there was independent ground for the officers to believe that there was probable cause, the language of Burke is pure dictum. Not only is it dictum, it has no application to the present case. It relies on another California Supreme Court case, case of People versus Roberts, which evolves an apartment. Now let me quote to you from the California case. In Roberts, the California Supreme Court points out that the manager testified that she had neither authority nor permission for Mrs. Higgins to enter her apartment. There was no claim that the manger had authority to enter the Roberts apartment. Likewise in Burke itself the court points out that mere fact that a hotel manager does not import an authority to permit the police to enter and search -- does not import an authority to permit the police to enter and search the rooms of her guests. Therefore, proof that the police were let in by the manager without law cannot satisfy the burden upon the prosecution to show that the officers reasonably believed in good faith that they had the consent of an authorized person. That question Your Honors is not really before this Court. The law of Burke in no way detracts from the position we take here. We feel California law is quite clear that the facts establish that the hotel or innkeeper had authority or if the facts establish that the officers in good faith and upon good reason believed that the hotel keeper had such authority, then the search is proper.
Hugo L. Black: But what is your basis if you say --
Arlo E. Smith: We say it stems from --
Hugo L. Black: Stems from what?
Arlo E. Smith: It stems from the fact that under California law the innkeeper has control of all of the premises. He has control over the hallways, the storerooms, and the hotel room.
Hugo L. Black: (Inaudible)
Arlo E. Smith: That's general California Law. We cited the cases, yes dealing with the –
Hugo L. Black: Common law you mean of California?
Arlo E. Smith: Yes the general common law applicable to innkeeper's rights.
Hugo L. Black: They have a right go in at any time?
Arlo E. Smith: Yes sir, but I think we need not argue that here. I think that we can argue as we had that on these facts the permission granted was reasonable.
Tom C. Clark: Who searched the rooms?
Arlo E. Smith: The officers searched the room.
Tom C. Clark: The innkeeper didn't search it?
Arlo E. Smith: He was there.
Tom C. Clark: He said be my guest.
Arlo E. Smith: He said I give you my permission to search, his exact language Mr. Justice Clark, in that case I give you my permission.
Hugo L. Black: And you say California law permits him to do that of course, you have to --
Arlo E. Smith: Yes sir, yes sir. We say that it may -- we also say that in this case the conduct of the innkeeper was indeed itself reasonable. He had been informed on very good cause by the officers that a guest in his hotel, an ex-felon had a weapon, a 45. I think that he has a right to go into that room for the protection of the other guests to search for that 45. I think it makes no difference whether he delegates it.
Hugo L. Black: (Inaudible)
Arlo E. Smith: We had reasonable cause for believing that he possessed it.
Hugo L. Black: What was the reasonable cause?
Arlo E. Smith: The fact that there was reasonable cause to believe that Stoner committed the robbery with a 45, that he had it in his possession. Presumably he kept that weapon and I think experience teaches that that weapon would either be discarded or kept in the place where he was then staying.
Hugo L. Black: Or carried on his person?
Arlo E. Smith: Or carried on his person.
Hugo L. Black: Are you trying (Inaudible)
Arlo E. Smith: To defend --
Hugo L. Black: (Inaudible) that California has a right by its law to determine who can search a room, hotel room and seize the stuff in it.
Arlo E. Smith: I don't think we have to defend on that, I think we can defend on --
Hugo L. Black: But you argue -- that's your first point.
Arlo E. Smith: Our first point is that the property -- the property law in California is such that this is a permissible agreement that this is part of the innkeeper's rights, yes.
Hugo L. Black: You are saying innkeepers' right and you said at another point agreement, those are two different things as I understand it and I'm --
Arlo E. Smith: That's correct.
Hugo L. Black: Though it seems to me that the question you pose is rather serious or rather serious constitutional question if you are right, that the law of California permits searches to be made, which under the law of federal government would be unreasonable searches and seizures except for the fact that California law says they are not unreasonable searches and seizures and wouldn't that go directly contrary to what we held in Mapp?
Arlo E. Smith: I don't believe they fall in the facts of this case.
Hugo L. Black: I'm not talking about the fact, I'm talking about that principle by which you are arguing. Mapp held that the State of California is bound by the search and seizure provision of the constitution.
Arlo E. Smith: That is correct.
Hugo L. Black: But you are saying that California can have a property law that exempts people in California, or denies them the benefit of that constitutional protection.
Arlo E. Smith: But we do not say that California could pass a law stating that any police officer could search a hotel room, that plainly wouldn't --
Hugo L. Black: I understand it but you are saying that a innkeeper under your law has the right to do it and therefore he can let policemen do it for him?
Arlo E. Smith: That's right. We say he can delegate it to anyone.
Hugo L. Black: It would amount in the end to a search which might, we assume that, for purposes of this argument, which let's assume that it was a direct unequivocal violation of the Fourth Amendment protection, but for the California law saying that the man had a right to do it.
Arlo E. Smith: That's correct. We don't believe that, that--
Hugo L. Black: Between the two, wouldn't it?
Arlo E. Smith: It's correct. We do not believe that this is unreasonable.
Hugo L. Black: But that --
Arlo E. Smith: Within the meaning of –
Hugo L. Black: But that's the different -- now that's the question of whether it is unreasonable within under the Fourth Amendment.
Arlo E. Smith: Under the Fourth, and under the Fourteenth.
Hugo L. Black: I get that but -- and maybe you are not arguing the other, but it sounds to me like you are arguing the Fourth Amendment can't control there if California cannot because it has property laws which permits searches and seizures of a man's room without a warrant.
Arlo E. Smith: No, I do not contend that you cannot through the Fourteenth Amendment control it, no.
Earl Warren: Mr. Smith, I go to California every opportunity I have and much of the time I stay in hotels. Do you mean to tell us the law of -- property law of California is such that every time I go to a hotel in California, sign the register, and I'm assigned a room, that I agree by doing that, that the hotel has the right to go in and search my room whenever it wants?
Arlo E. Smith: I think that we need not go that far on the facts of this case.
Earl Warren: No, I just ask you that question.
Arlo E. Smith: I think that I would be compelled to answer that question in the affirmative.
Earl Warren: In the affirmative.
Arlo E. Smith: Now –
Earl Warren: Would you tell me if that has ever been decided directly by the State of California?
Arlo E. Smith: It has not.
Earl Warren: What is the nearest case you have to it?
Arlo E. Smith: The case of People versus Ambrose, the case of Fox versus Windemere, which we have cited?
Earl Warren: What does Ambrose hold?
Arlo E. Smith: Ambrose really goes off on an apparent authority doctrine. It says that the permission to enter the hotel room granted by the innkeeper was proper because the officers had right in good faith to rely upon their belief they had this authority, which is our second argument here.
Earl Warren: What kind of a case was that?
Arlo E. Smith: Criminal case.
Earl Warren: What other case besides Ambrose?
Arlo E. Smith: The other cases we cite are not directly at point. It is true, they are concerned with the lien laws, with the right of the landlord or the innkeeper to maintain certain types of actions for removal of a guest.
Earl Warren: And you're of the opinion that Burke does not cut against -- cut across your argument?
Arlo E. Smith: No sir, we feel one that it is dictum; two that it plainly states that there are no facts to warrant a contrary finding. And likewise Roberts is plainly based on the fact that there are no facts or claim of authority by the hotel manager or really the apartment manager, that was an apartment case, which is another case. Also petitioner here stated that the case of Chapman versus United States disposed of our argument concerning good faith. Let me read you what Mr. Justice Frankfurter said there. He said on that test, I find it very difficult to conclude that a police officer may not deem adequate the authorization of a landlord to enter his house without a search warrant, where he has solid ground for believing that his lessee is utilizing the house as an illegal distillery. It seems to me that it -- not at all unreasonable not to charge a local police officer with knowledge of the law of Georgia regarding the power of the landlord to abate a nuisance in his house. Apart from charging the policeman with knowledge of the local law relating to the landlord and tenant, he certainly would not acquire that knowledge by reading only the Georgia case law. I submit that, that very argument is most plainly applicable to this case where there is a dispute between counsel for petitioner and counsel for the state as to what the applicable state law is. I submit that the police officer could, in good faith, rely upon the statement by the innkeeper that he had authority. He need not resolve this very difficult and not too clear question of the hotel keeper's authority and his good faith action here ought not result in a technical reversal of a conviction.
Hugo L. Black: That wouldn't be technical, would it, if it violated the Fourth Amendment?
Arlo E. Smith: The technical area in the introduction of the evidence, which is another point. The violation -- would be a violation, I suppose you can characterize it as you wish, but certainly it is not a gross violation such as the breaking down of a door and exploratory search only. It's a good faith mistake at most. A violation, yes perhaps, which brings me to what I consider to be the --
Hugo L. Black: A good faith violation?
Arlo E. Smith: What?
Hugo L. Black: You mean a good faith violation of the Fourth Amendment.
Arlo E. Smith: A good faith violation yes Your Honor, which brings me to what I deem to be a very crucial point. Let me touch very briefly on the instrumentalities question. Here I think that is not applicable. You need not reach it. Number one, the gun, hat, and coat were instrumentalities. They were a disguise. They were proper subject of seizure. Further, we feel that this doctrine has no application to a search by consent. It is a doctrine which is applied to search warrants. It does not apply to a search or to a incidental search, for example terrace. It should not be applied to a consensual search. Further, we feel that this is indeed a kind of technical nicety. Another area of great confusion that ought not be imported to the states through the Fourteenth Amendment. The cases are not at all clear as to what is the means in instrumentality. Further, we feel that there is no basis in the Fourth Amendment for such a rule. The Fourth Amendment simply prohibits an unreasonable search and seizure. It says that a warrant must describe with particularity the persons, the places to be searched and the things to be seized. It does not prescribe the things to be seized. It requires only that the things to be seized be described with particularity. Finally let me reach what I deem to be --
Earl Warren: Well on that score, you don't contend this is in furtherance of lawful arrest, do you?
Arlo E. Smith: No sir.
Earl Warren: Alright. Now why couldn't the police reasonably have gotten a warrant to search that place?
Arlo E. Smith: I think they could have.
Earl Warren: Well then do you mean that it is reasonable for them to get a search warrant they can disregard it and say we'll just search anyway?
Arlo E. Smith: No sir. I say sir that --
Earl Warren: Why didn't they get a search warrant in this case?
Arlo E. Smith: The record is not clear, but the -- it is plain from the sequence of events that they were occurring very rapidly, that they discovered the notebook, they discovered -- connected this man up as a ex-felon, they got a mug shot, they went to the clerks, they were identified, they then went to the hotel room, but I say that --
Earl Warren: But they stayed in the room for a full day didn't they?
Arlo E. Smith: Oh no.
Earl Warren: In and around the room.
Arlo E. Smith: Oh, they did stay around late, that is correct.
Earl Warren: Or in the room as I understood it, isn't that --
Arlo E. Smith: That's right they awaited his return.
Earl Warren: Around or in the room they stayed for a full day, and why in that length of time shouldn't they have gotten a search warrant, before they searched the room?
Arlo E. Smith: I say --
Earl Warren: Beg your pardon?
Arlo E. Smith: First off of course they were not even certain that he was not perhaps in the room, there was a suggestion that perhaps he was in spite of the fact that the key was at the desk.
Earl Warren: Well, they went -- they searched -- they looked in and about the room and he wasn't there.
Arlo E. Smith: That's correct.
Earl Warren: Well then why -- if they wanted to search the room, why couldn't they have gotten the search warrant?
Arlo E. Smith: They felt that they were justified and based on the permission to search. Now granted they could have gotten the warrant for the weapon. However --
Earl Warren: And justice wouldn't have suffered at all in the meantime they if had, would it?
Arlo E. Smith: No sir, but the law -- the Fourth Amendment does not require every search to be made with a search warrant. It does to prescribe that at all, it says simply there shall not be an unreasonable search. It does not preclude the practice that existed in that day and now that a search maybe made as an incident to an arrest or that a search might be made by consent.
Earl Warren: Well, isn't the question of whether they have the time to get a search warrant, doesn't that goes to the question of reasonableness of an immediate search?
Arlo E. Smith: I do not believe so Your Honor, I don't believe so. I think that they can probably search incident to an arrest.
Earl Warren: Well, there wasn't any –
Arlo E. Smith: If the arrest is proper they can search properly as an incident to consent.
Earl Warren: There wasn't an arrest here?
Arlo E. Smith: Well, as an incident to consent. Now if the consent had been refused, obviously they would have two courses of action remaining, one to await his return, two to secure a search warrant, three to if they locate him in Las Vegas to arrest him, and obtain his consent.
Earl Warren: But your entire case then rests upon consent, if that clerk didn't have the right to give it to you, you are out of court.
Arlo E. Smith: No Your Honor. We feel as a second point, that even if we are incorrect here, that they had -- the officers had the right in good faith to rely upon the representations of the innkeeper that he had right to give them permission to search, he said in that case I give you permission.
Tom C. Clark: He said (Inaudible)
Arlo E. Smith: He said in that case I give you permission. I think the reasonable inference for any person, be he police officer, lawyer or judges that I have the right to give you permission, take it.
Tom C. Clark: (Inaudible)
Arlo E. Smith: Certainly Your Honor.
Tom C. Clark: (Inaudible)
Arlo E. Smith: Yes Your Honor there is a distinction.
Tom C. Clark: Why didn't we just rely on the permission? Why didn't California allow the permission in that case, the entire permission that you are allowing here, but when they go to the extent of saying that these people might have run away with it carrying narcotics, very well.
Arlo E. Smith: But we felt that the California Law giving him the right to enter in that situation was quiet clear and presented on that basis Your Honor.
Tom C. Clark: You wouldn't have to go through all that trouble of saying, police open the door (Inaudible) destroy it, all you got to say under the California Law implied permission (Inaudible)
Arlo E. Smith: Implied permission you are talking about good faith.
William J. Brennan, Jr.: In that case the officer got a key from the building (Inaudible) and entered the apartment.
Arlo E. Smith: That's right.
William J. Brennan, Jr.: Justice Clark's point is why didn't California (Inaudible)?
Arlo E. Smith: The distinction is I am sorry I -- the distinction is the distinction I have been attempting to make here which is a distinction in Roberts California case and in Chapman. An apartment the right of a landlord and tenant, there is no contention here that these doctrines apply to an apartment. The law of California is different in reference to an apartment. To put it, an apartment is a home, a home is your castle, but a hotel room is not a home that's the gist of our -- the distinction between our arguments here.
Speaker: (Inaudible)
Arlo E. Smith: No, not that clear.
Speaker: Where do you get that law from California, that a hotel room cannot be a room your room, your home?
Arlo E. Smith: This is the distillation of those cases Your Honor. There is no case that says it that directly. Now I would like to put my remaining time on what I concede to be the most important question here. If you find that this is -- that was improper search whether or not California in reviewing this case can apply its rule of harmless error. Now California in 1911, 1914 adopted in its constitution a rule requiring that the Court review all of the evidence, the entire record and reverse the case only, it would result in miscarriage of justice. Now this accords with the development of the Federal Law, in the same -- at the same time. Let me read to you the language of from (Inaudible) versus US discussing this development which parallels the development of Article 6 Section 4.1/2, quoting from the trial judge this Court said, the Courts of Review tower above the trials of criminal cases is impregnable powers said to those of technicality. So great is the threat of reversal that criminal trials became gains for sowing reversible errors in the record. This Court again speaking said, the object of this reform was simple; to substitute judgment for automatic application of rules, to preserve or review as a check upon arbitrary action and essential unfairness in the trial, but at the same time to make the process perform that function without giving men fairly convicted the multiplicity of loopholes which any highly rigid and minutely detailed scheme of errors will reflect in a printed record. I submit to you that the policy of Mapp versus Ohio does not require a state to adopt the rule of reversible error. It's an attenuation at best of an indirect enforcement of a very important constitutional right, well I stand here --
William J. Brennan, Jr.: Is there a rule in the case of a coerced confession?
Arlo E. Smith: No Your Honor.
William J. Brennan, Jr.: We've said it couldn't --
Arlo E. Smith: No Your Honor that's correct.
William J. Brennan, Jr.: Well what's the difference here?
Arlo E. Smith: Two differences. First the theory of coerced confession cases is that the constitutional violation is the introduction of that confession. It's not the obtaining of the confession, it's the introduction. The courts say that this permeates the trial with unfairness, secondly --
William J. Brennan, Jr.: have we said that or have we said (Inaudible) got in the evidence a reversal automatically follows.
Arlo E. Smith: Secondly Your Honor I think that this is true --
William J. Brennan, Jr.: I mean that's what we held, haven't we?
Arlo E. Smith: I think you've stated that, and I think that Your Honor that in the case of a confession the very nature of the evidence is such that, that it would under the test of this Court or the test of the state courts have a that kind of an impact upon the jury, which should result in reversible error. Now what is the --
Speaker: (Inaudible)
Arlo E. Smith: Oh yes Your Honor, yes Your Honor. That it did, but here let us take -- let's give you an example that could constructed from this case. Let's assume that the only evidence here that was illegally obtained assuming that it was, was the coat. The coat which was introduced in evidence here, the prosecution witnesses testifying that it appeared to be the coat, the co-defendant who had pleaded guilty testifying that it was not the coat used in the robbery. I submit that this would have no impact upon the judgment. I submit that this would be a reversal based upon a mere technicality.
Speaker: (Inaudible)
Arlo E. Smith: No it's held that the --
Speaker: (Inaudible)
Arlo E. Smith: That's correct Your Honor sorry, right.
Speaker: (Inaudible)
Earl Warren: Well Mr. Dempsey, I want to express the appreciation of the Court to you for having accepted this assignment to represent this indigent defendant. If it were not for lawyers who undertake these services like yourself, the rights of indigent defendants would be a mere theory of justice rather than justice itself and the Court is always comforted that lawyers are willing to do what you have done in this particular case, and without regard to the manner which these cases are decided, we are profoundly grateful to lawyers who undertake the service you did in this case.
William H. Dempsey, Jr.: Thank you.