Warren E. Burger: We will hear arguments next in 73-88, United States against Edwards and Livesay. Mr. Korman you may proceed whenever you’re ready.
Edward R. Korman: Mr. Chief Justice, and may it please the Court. This case is here on a writ of certiorari to the United States Court of Appeals to the Sixth Circuit. That court refers judgments of conviction entered by the United States District Court for the Southern District of Ohio convicting Eugene H. Edwards and the late William T. Livesay who died subsequent to the granting of the writ of attempting to break into the United States Post Office in violation of 18 U.S.C. Section 2115. The Court of Appeals held that certain scientific evidence which established that paint chips which were found on the clothing of both of these gentlemen came from the same source as paint chips on the window of the post office where the attempted burglary had taken place, and that this evidence was the fruit of the unlawful taking of the clothing of these two gentlemen some 10 hours after their arrest on the morning following their arrest. Although the Court of Appeals held that the arrest of Mr. Edwards was lawful, did not in fact reach the issue as to Mr. Livesay and that there was probable cause to take the clothing. It held that the taking was fatally defective because a warrant had not been obtained for the search and seizure of the clothing. The issue presented here as to whether the authority to search an individual without a warrant or an independent showing of probable cause which arises by virtue of his lawful arrest is somehow dissipated, if it is not exercised “substantially contemporaneously with the arrest,” but several hours, in this case approximately nine, after the administrative process and other mechanics of the arrest have come to a halt. Since there is in this case a lingering issue as to the validity of the underlying arrest raised by implication in the brief that’s been filed by the respondent and expressly by Mr. Edwards in a separate document which he has filed with this Court entitled the motion for extension of time for filing a writ of certiorari. It is appropriate, I think to begin the discussion of the facts in this case where it all began on the evening of May 31st in the year 1971, in the City --
Warren E. Burger: Would you first tell him Mr. Korman how that issue is still alive?
Edward R. Korman: Well presumably, it has been raised as an alternative grounds for affirmance, although it was not raised as an issue on our petition for certiorari that was raised, as I understand it in the opposing papers on certiorari. But nevertheless, I think it would still be helpful to start this case where it began in Lebanon, Ohio around 10:45 in the evening on May 31, 1970. At this point, I would refer the Court to a map which is on page 1 of a supplemental appendix which we filed yesterday and which might be helpful at the Court had while I discuss the facts, in the event that it had not yet been distributed. I gave nine copies to the clerk right now and you might be able to distribute it. I said yesterday, we filed a supplemental appendix which contained a map of the area.
Speaker: These are the areas?
Edward R. Korman: Yes.
Speaker: That's right. You gave respondent one too?
Edward R. Korman: Yes. The map is the map of approximately two or three square blocks and around 10:45 in the evening at 10th Plymouth pulled up at South Sycamore Street which is a block from the Lebanon Post Office and parked at number 124 South Sycamore Street. Three gentlemen emerged, took something out of the trunk of the vehicle and began walking towards the business district. This scene was viewed by several people who were sitting on the porch or looking out of their windows. One of them called the police and told them that three strange persons had been seen emerging from this stand, Plymouth. This is generally a business district except for this brief, small residential area and a bulletin went out that three suspicious persons had been observed leaving this town on an automobile. At that point and time, Patrolman Ashley was cruising on South Street which is right around the corner towards the bottom of the map. He proceeded to examine the Plymouth, saw nothing particularly unusual about it except that it had an out-of-county license plate. He then drove around --
William H. Rehnquist: Did you say out-of-town license plate?
Edward R. Korman: Out-of-county license plates, apparently in Ohio, each county, -- the residents of each county get license plates with a particular letter on the license number to indicate the county in which the automobile is registered. Seeing nothing particularly unusual other than this, Patrolman Ashley drove his car around up South Sycamore Street North, he made then a right turn onto West Main Street, and then you see the alley on West Main Street. He drove down the alley, into the driveway of the Lebanon Post Office. He then drove through the driveway and now to South Broadway. As he got to the past the Post Office he turned north and he saw two individuals on the north boundary of the Lebanon Post Office near the museum. It appeared to him that they were walking in a north, northeasterly direction that they had just come from that portion of the Post Office and being perhaps naturally suspicious since this was 10:30 at night in the business district, which was not on a Sunday night, which was not to his knowledge terribly crowded with people. He decided to follow them and so as they walked, he drove behind them, and they made a turn on West Main Street to begin walking towards South Sycamore. And by the time, Agent Ashley had gone to West Main Street over the radio of his car he heard that the burglar alarm had been sounded at the Post Office. He there upon stopped these two gentlemen, asked them to get into his car which they did without drawing the revolver and then he drove back to the Post Office, got out of the car, by that time other police officers had arrived on the scene. He examined the bank and the area right where he had seen these gentlemen emerged from and discovered that in fact there had been an attempted burglary. There were burglar’s tools, the screen had apparently been tampered with and also he noticed paint chips near the area as well, and it was at that point that he told these gentlemen that they were under arrest and they were taken into custody. Now these two gentlemen were Mr. Edwards, who was a respondent here and one Huntley, who was not convicted of this crime because he jumped bail and ultimately plead guilty to bail jumping rather than the particular offense here. At the time all of this was transpiring, the Defendant Livesay was observed back on 118 Sycamore Street hopping over the back fence and hiding in the bushes at 118 South Sycamore Street. He had been observed by a Mr. Cruise who lived in the house and who had earlier was one of the neighbors who had observed this three gentlemen emerged from the Plymouth. He then saw Mr. Livesay run towards the Plymouth and hide in the Plymouth where Mr. Livesay was ultimately discovered by another patrolman who placed him under arrest and brought him to the scene of the crime. After these gentlemen were placed in custody, this is now and taken into the station house, this is approximately now about 11:30 on a Sunday night. They were placed in custody and the following morning, the police having noticed the paint chips near the window with police -- went to a local department store called Kaufman’s Department Store and purchased new clothing for these gentlemen, went to the prison sometime around 9:30 of the local jail, asked the two men to change into the clothing, which had been purchased. The clothing that they were wearing had been taken from them and that of course the scientific analysis which followed clearly established that the paint chips that were found on their clothing came from the same source as the paint chips from the window of the Post Office. And prior the trial, a motion to suppress was made and I note only for the purposes of information amounting to suppress only dealt with the probable cause aspect and did not involve the issue that was ultimately raised and decided in the Court of Appeals and decided by the Court of Appeals. At trial the evidence was as I described it, the observations of the patrolmen, the neighbors in the surrounding area, and of course the testimony of two scientific -- two people who made the scientific analysis.
Potter Stewart: Did you just tell us that Mr. Edwards had filed something personally here?
Edward R. Korman: Yes, we received the copy of the document --
Speaker: (Inaudible)
Edward R. Korman: Petition or application for an extension of time to --
Potter Stewart: When? How recently? When did it come in? Do you remember that?
Edward R. Korman: Several weeks ago, I have my copy here, it was handwritten. We received a copy, I looked through the Court’s file yesterday in the docket room and I did not notice it among the papers there.
Warren E. Burger: Well, the clerk is checking on it right now.
Potter Stewart: And as I understand what you said it’s in that attachment primarily that the claim was made at the arrest was invalid.
Edward R. Korman: That’s correct. Now the Court of Appeals in a rather exhaustive opinion rejected the argument that there was no probable cause for the arrest held that the police officers acted. It’s a reasonable proof and then should have under the circumstances. However, it held that the seizure of the clothing, some ten hours after the arrest was invalid. The Court reasoned that since the arrest was not contemporaneous -- the search was not contemporaneous with the arrest. It could not be justified as a “search incident to an arrest.” And struck down the taking of the clothing because there was no warrant even though as I indicated earlier found probable cause to justify the actual taking of the pants independent of the probable cause for the arrest. We have filed a petition for certiorari not only because of the conflict among the circuits but the importance of the issue in both federal and state prosecutions and indeed we have been advised by the Attorney General of Ohio that a predictable spate of habeas corpus litigation has already begun that in the Southern District of Ohio alone, two habeas corpus petitions have already been granted in the Dean versus Gray and Carpenter versus Gray and are pending before the Sixth Circuit and there is yet another petition for habeas corpus in a case called Huskinson versus Grey raising the same issue as involved in this case and the Sixth Circuit. Principle error --
Potter Stewart: Before you leave the facts, there’s one thing that’s not clear to me and I would like to ask you, were these men given -- asked to discard their old clothing and given new clothing as a matter of routine jail procedures or were they asked for their clothing for this purpose of making this search?
Edward R. Korman: Well, that question was put to the police officer who was in charge and he started to answer what they do generally and then he stopped himself and he said, “Do you mean generally or what did we do in this case?” Whereupon they said was, “Well, what did you do in this case?” and he said that they took it the morning after apparently with the expressed purpose in mind not of holding it for inventory or exchanging it for a jail clothing. Apparently, they had no jail clothing since they had to go out and purchase this clothing and so that it was taken with the expressed purpose of conducting the analysis that was ultimately conducted.
Potter Stewart: That’s your inferences from the facts.
Edward R. Korman: That’s correct.
Potter Stewart: That was my understanding but I was not sure.
Speaker: Do you think it would make a difference Mr. Korman? Would you have a different case if routinely they made anyone who was jailed change into regular prison garment?
Edward R. Korman: I think I believe that we would although there is a case in the Fifth Circuit called Brett versus the United States in which that had been done and the clothing was I believe, deposited and held for about three days afterwards. And the Court of Appeals said you cannot take the clothing three days afterward even though it had already been taken from the defendants without warrant. It’s our view as I shall elaborate that it is the, as the Court observed in the Robinson case it is the fact of the arrest which gives rise to the right to seize and take clothing and under those circumstances. It doesn’t matter and there is no reasonable basis to draw a distinction between takings which occurred five minutes after the arrest or five hours after the arrest.
Potter Stewart: But you do not and think on this record, you cannot seek to justify this search as an inventory search.
Edward R. Korman: No, and no attempt was made to do that below.
Potter Stewart: Now the kind that is routinely made in jails before a person is put in a cell and maybe sometimes thereafter as they missed something.
Edward R. Korman: That’s correct.
Potter Stewart: It’s not that kind of a search.
Edward R. Korman: No, it’s not.
Potter Stewart: The clothing was taken for the purpose of searching the clothing.
Edward R. Korman: That’s correct and there was no apparently, the only evidence that can be drawn from the --
Potter Stewart: For evidence of guilt.
Edward R. Korman: Right and there was no other clothing in the prison, so apparently they went out and --
Potter Stewart: They went out and bought it especially.
Edward R. Korman: Exactly and part of it -- and by the way, part of the reason for the delay of ten hours could have been reduced to about two hours was that they decided to wait until morning to buy them a new pair of clothing before they actually made them undress in the prison and give up the clothing that they’re wearing. So that this is a clear case on which police officers acted reasonably under any definition of the term and the conclusion of the Court of Appeals that they acted unreasonably is really based we believe on a mistaken reliance on cases involving search incident to an arrest which involves searches of homes and other similar areas where a defendant happened to be arrested in his house and under those circumstances it was held that an arrest, which was, when you arrest someone in his house you can’t go search the whole house because of the fortuitous circumstance that you happen to have arrested him there and of course in some instances, the circumstance was not just fortuitous but the police knowing that they’d be able to search a whole house if they happened to find the defendant there to arrest him with the plan to arrest accordingly.
Warren E. Burger: Do you think Mr. Korman, your situation would be any different or would your position be any different if promptly on their arriving at the station they handed them substitute jail house clothes. Took their regular clothes, put them in a sealed bag and gave them receipt and then put it in a locker and then the next morning went into the locker and got the clothes and sent them to the laboratory for the chemical analysis?
Edward R. Korman: Oh, I think it would be different and should be different but I am not sure that the Sixth Circuit would think so. They expressly reject it for example the holding of the Court of Appeals for the Second Circuit in which something precisely like that had been done and six hours after the clothing had actually been taken from the defendants, the FBI picked up the clothing to conduct scientific samples. And the Second Circuit said, “That’s perfectly all right” and in the opinion of the Court of Appeals, they appear to reject even that reasoning of the Second Circuit.
Warren E. Burger: But what are the Second Circuit reasons if they had the clothes already in custody and they didn’t need a warrant to get them.
Edward R. Korman: That’s right and that seem to make --
Warren E. Burger: I suppose what you’re saying in effect is that they had both the clothes and the people in custody here and they can take the clothes anytime they wanted to?
Edward R. Korman: That’s correct. That is normally you need a warrant -- you want a warrant because you want to interpose a neutral and detached magistrate between the police and initial intrusion on the privacy of the individual.
Speaker: In other words, if I understand your answer correctly, you would be making the same argument if the clothes have been taking away from them three weeks after their arrest?
Edward R. Korman: That’s correct, provided they were still in jail and that the purpose of the search was not to harass them or in anyway to break the law.
Speaker: And you would say that, that that was a search incident to a lawful ground?
Edward R. Korman: That’s correct because as we believe the term, the word “incident” as it’s particularly applied on the Robinson case means by virtue of the fact that the arrest that is if you have his body in custody and in jail and he is lawfully incarcerated and his privacy has been interfered with to that extent. We think you do not need a neutral and detached magistrate to decide whether you can search or take an article or clothing from --
Speaker: So you could have done it two years after his arrest, correct?
Edward R. Korman: If he is still, I, if that carrying that reasoning out that would be correct. If he is still in jail and if they are acting reasonably, I am not arguing --
Speaker: And that would be still be incident to his arrest?
Edward R. Korman: That’s correct. Incidentally because by virtue of his arrest and custody and as a matter of fact I believe, Your Honor, in the case called Lanza versus Untied States rejected out of hand a notion that someone in jail at anytime could complain about being searched or being subject of an unreasonable searches.
Speaker: No, no that was so much chronic over hearing in that case.
Edward R. Korman: That’s true. It’s factually distinguishable but I was merely talking about the board proposition that Your Honor is --
Speaker: And there was no -- that case did not involve the claim at all of a search incident to arrest.
Edward R. Korman: No, I understand that, what I am saying is the case involved simply searching someone who is lawfully in jail and Your Honor rejected out of hand the notion that someone in jail, over and above any claim of by virtue of an arrest could even assert such a proposition. Now, we are not arguing and we are not going as far as that language would take us. We are not saying that someone in jail is totally at the mercy of the jailers with regard to what they could do with him. They could not strip search him, they could not harass him and they could not undertake any other kind of search unless it was undertaken in good faith and reasonably motivated.
Speaker: Well, would you say that you wouldn’t so far seek search them in terms of probable cause to search? Let’s say arrest for continued custody or against to have a right to search whether you have probable cause to search the proving or not.
Edward R. Korman: That’s correct. If you’re looking for evidence of a crime or a contraband.
Speaker: But the man was out on bail? If you’re looking for evidence of the crime.
Edward R. Korman: Right.
Speaker: But you don’t have to that probable --
Edward R. Korman: No, we would not argue that – That’s correct because --
Speaker: Assume as you had probable cause to believe and then committed the crime to arrest.
Edward R. Korman: That’s correct because that’s what gives rise to your rights --
Thurgood Marshall: But he’s not on bail. Did you search him if he’s out on bail?
Edward R. Korman: No.
Thurgood Marshall: So the difference is whether he’s got bail money.
Edward R. Korman: Or whether he is bailable risk. It’s not so much the difference of course if he has the bail money --
Thurgood Marshall: Well, you say he is not a bailable writ.
Edward R. Korman: Well, I think there are certain circumstances under which --
Thurgood Marshall: Well, robbery is a bailable writ.
Edward R. Korman: That’s correct. As a matter of fact --
Thurgood Marshall: If he had money for bail, you couldn’t search him without a warrant.
Edward R. Korman: Well, not because he had the money for bail but because he was already free and to search him again would involve an intrusion on to his privacy which would not be incidental to anything.
Thurgood Marshall: And the difference is whether or not he had the bail money.
Edward R. Korman: Difference is that in one instance he is free and to search him would involve an intrusion on his privacy.
Thurgood Marshall: The difference between being free and not being free is M-O-N-E-Y.
Edward R. Korman: In most instances that’s correct.
Speaker: Mr. Korman, would you say that the search conducted in the jail of these people’s clothes has to have a separate justification by way of reasonableness even though it’s not subject to the warrant requirement?
Edward R. Korman: That’s correct. But reasonable, when I say reasonableness I don’t mean probable cause, I mean reasonable in the sense that they’re not simply strip searching them every hour for the purpose of harassing them.
Speaker: Well, reasonable under the sense of the Fourth Amendment?
Edward R. Korman: Yes, but I think reasonable, the word “reasonable” has a different definition when you are talking about stopping someone on the street for no reason and searching him and when he is already in jail and in custody and his privacy has been interfered with, to that extent. It doesn’t seem to me that you need now the neutral and detached magistrate that you would need for example if you want to search his house.
Speaker: Well, as I understood your answer. It’s not reasonable in the, I mean your use of the word “reasonable” is not in the Fourth Amendment sense but it is in the Fourteenth, Fifth and Fourteenth Amendment due process sense like Rochin against California.
Edward R. Korman: It would be in that sense but also the Fourth Amendment’s reasonableness that the word “reasonable” in the Fourth Amendment has not always been construed to require a showing of probable cause for an intrusion on the privacy of an individual. For example, in Terry versus Ohio. The defendant was stopped and frisked and now it was not said that you needed for that particular interference with his liberty that you needed probable cause and what constitutes a reasonable search even under the Fourth Amendment. I agree that they may overlap and really what I am probably getting to is the Fourth Amendment reasonableness.
Speaker: Well, Fourteenth --
Edward R. Korman: Fourthteenth. I am sorry Fifth and Fourteenth Amendment.
Speaker: Because you were talking about harassment? And that’s --
Edward R. Korman: Right, but I think to a certain extent that they might would overlap and that harassing and searching hin every hour for example for the purpose of harassing would probably be a violation of both, the Fourth and Fourteenth Amendment because that would simply unreasonable conduct on the part of the jailers. On the other hand, in this case for example, where we hardly, could hardly be said even under the Fourth Amendment if probable cause is the standard and the Court of Appeals here found that there was probable cause in their opinion. They said that we find that there was probable cause and I said, “That’s still not enough.”
Speaker: But no warrant.
Edward R. Korman: That’s correct because there was no warrant.
William H. Rehnquist: Well, Mr. Korman, in Cooper against California and Katie against Dambrowski, this Court held a search to the reasonable under the Fourth Amendment. Even though there was no question of probable cause really applicable to that fact situation. Is your position here that that kind of test is applied or that the kind of test Mr. Justice Stewart suggest of revolting the conscious stomach type of thing in Rochin, is this such a --
Edward R. Korman: Well, I think it would depend, as I said it would be the kind of test Your Honor is suggesting but also I think the protections of the Fourteenth and Fifth Amendments overlap to a certain extent with the Fourth Amendment. And that of course the kind of conduct that was involved in Rochin would clearly come under the Fourth Amendment standard but for example the cases, Your Honor mentioned in Terry where cases which involve reasonableness in the sense that there was a legitimate law enforcement purpose combined with an intrusion, which was something, less than a full scale arrest and seizure of the individual and that it seems to me is what we have here. Here he was already in custody. He was in jail and this --
Speaker: It is probable cause in the case?
Edward R. Korman: Yes, we do and the Court of Appeals so found.
Speaker: So it seems to be (Inaudible) the case that where there is not any probable cause but you can nevertheless searched in jail?
Edward R. Korman: No, it’s not essential that the Court decide that here but in making the argument, I think I would want to concede that even if there was something less than probable cause here that the search would be improper.
Speaker: When he searched him, you had probable cause and I take it for the arrest.
Edward R. Korman: That’s correct.
Speaker: And mainly that you have been – that he had committed this crime.
Edward R. Korman: That’s correct.
Speaker: And at the time you searched him, you knew that he had been crawled through a window.
Edward R. Korman: That’s correct and Your Honor, I said, need you decide it, I actually should have respond to that. I think you already have in the Robinson case where there was no reason on the part of the officer to believe that the defendant was armed or that there would be any evidence of carrying it and yet in saying that we do not care what the officer thought. The Court said the right to search arises from the fact of the arrest and we are not going to look into whether the officer really had any reason to believe he is going to find a gun in the cigarette pack.
Speaker: But nevertheless, this would be a fortiori case with probable cause.
Edward R. Korman: That’s correct.
Speaker: The whole thrust of your argument in your brief at least and I think now is that this search was valid because it was a search incident to a valid arrest.
Edward R. Korman: That’s correct.
Speaker: Well, if that’s correct, I don’t quite understand your answer to my brother Marshall’s question a while ago that why wouldn’t search be equally valid if may have this man after he’d been released on bail. He still had been arrested, wouldn’t it equally be a search incident to a valid arrest?
Edward R. Korman: No because we’re not simply -- I would like to get away from the phrase incident to. The reason that we say you don’t need a warrant if he’s in jail is because his freedom has already been restrained and he is in custody and to go and look in his pockets or take his shirt does not involve really the substantial additional intrusion. On the other hand, if he is out on bail and he is out free --
Speaker: Well, he had been arrested.
Edward R. Korman: Yes but the seizure now involves something more. He is free and it involves picking him up but it involves saying, “Take off your clothes.” It is a substantial additional intrusion onto his privacy which is not so if he is already locked up in jail.
Speaker: Well then, then maybe I don’t understand your argument. I thought that as I said, your argument was this was incident to a valid arrest, isn’t it that’s why you try -- you justify its validity?
Edward R. Korman: Well, that is a catch phrase and I am reminded of Mr. Justice Holmes’ statement that it is one of the misfortunes of the law that ideas become insisted in phrases and there after for a long time seize to provoke further thought. Now, the notions --
Speaker: We can now be prisoners of words but I just want to get your thoughts and what you are implicating.
Edward R. Korman: Well, I am trying. I think that the phrase incident to an arrest embodies certain value judgments. That is, you can search someone after he is arrested because you already have him in custody or you have a valid basis for his arrest and you do not have to go to a neutral magistrate to go that one step further. On the other hand, we would say if he is out free and he is walking on the streets and he has been released on bail. Then stopping him all over again, taking him and detaining him for however short a period of time and taking his clothing that does involve a significant additional intrusion on his privacy.
Speaker: Even though he had been validly arrested?
Edward R. Korman: Even though he had been validly arrested because it is a different kind of intrusion onto his privacy. Here he is now free, he is free to do what he chooses as long as he reports to court when ordered and to stop and to place him under temporary detention simply involves a kind of an additional intrusion which is --
Speaker: Well, I guess then your argument is rather and you tell me if I am wrong, I am trying to understand it, is that he is validly in prison, in custody and for that reason he can be searched, is that it?
Edward R. Korman: That’s correct because the search --
Speaker: Not that he was not -- but it’s not incidental arrest, it’s because he is validly locked up.
Edward R. Korman: That’s correct and his freedom has been interfered within that way I think --
Speaker: And therefore the arrest is good, so long as he is validly locked up, the search is valid in your submission even if it’s five years after his initial locking up. Right?
Edward R. Korman: Well, hopefully in these times it would not last that long but I would say if you carried my argument out to its most probably logical extreme, that’s where it would lead you, yes.
Speaker: I should relate --
Warren E. Burger: That was the point you --
Speaker: Excuse me Mr. Chief Justice. I was inquiring whether you are addressing in this case what in effect is the first search. It seems to me there may be a difference between what sometimes is called an inventory search. The person is lawfully arrested, imprisoned and usually as I understand it he is then searched usually forthwith here for reasons that have been indicated, he was not searched until the next morning and substitute clothes could be made available. Once an inventory search had been completed and prison clothes had been provided, there would be no further occasion for that type of search as I understand it unless there was some reason to believe he had been a recipient of a weapon secreted into the jail or drugs or the like.
Edward R. Korman: That’s correct.
Speaker: Do you draw that distinction?
Edward R. Korman: Yes, I would.
Speaker: I suppose you’d say a man who is in jail loses his Fifth Amendment rights also?
Edward R. Korman: Which Fifth Amendment rights are you, which ones?
Speaker: A man in jail.
Edward R. Korman: Now which Fifth Amendments rights?
Speaker: Self-incrimination.
Edward R. Korman: No, I wouldn’t. I wouldn’t say that only because it reflects totally different values than Fourth Amendment right of privacy that is if he is already in jail -- the purpose of having a neutral and detached magistrate is to protect, is to interpose a magistrate between the police and some substantial interference with the privacy interest of the individual, and if he is already in jail and his privacy interest have been interfered in that way, we would take the position that going and looking into his pockets only involved in a minimal additional intrusion which should not involve a -- which should not need a magistrate to authorize. On the other hand, it says here --
Speaker: That would be true on the street then too.
Edward R. Korman: Pardon me?
Speaker: That would be true on the street then because it’s only minimal.
Edward R. Korman: Well, the Court is held for example that you can stop someone briefly on the street and search him without a warrant in less than a probable cause in Terry.
Speaker: Empty his pockets?
Edward R. Korman: Well, it depends on what the frisk reveals.
Speaker: I say empty his pockets?
Edward R. Korman: I would -- I would -- I could not --
Speaker: Not yet.
Edward R. Korman: Not yet, I could not answer that categorically. If he felt a hard object for example he probably could stick his hand in his pocket and --
Speaker: You said not yet rather hopefully.
Edward R. Korman: [Laughter Attempt] No, no, I meant not yet in the sense that it was premature for the police to reach into his pockets immediately.
Speaker: And looking thoroughly what (Inaudible)
Edward R. Korman: No, I'm --
Speaker: Are that involve his rights to privacy?
Edward R. Korman: Well, I think to a certain extent that when you are in jail, your freedom of association is interfered with and to that extent you don’t have the same rights as --
Speaker: Same as others?
Edward R. Korman: No, I think the test is reasonable must there. The regulations which restrict your right of free speech in jail have to be based on some reasonable justification by the jailers.
Speaker: Well, all these rights become modified once a person becomes --
Edward R. Korman: Necessarily so, I think.
Warren E. Burger: And his right of association in prison is somewhat limited to jailers and fellow prisoners for one thing isn’t it? But, I would like to get away from the First and Fifth Amendment here and get back to this case. I understood your response in an earlier point was resting on the recent Robinson case that a custodial arrest, that is an arrest followed by custody is what you were standing on to support the search and that’s what we had just held a few weeks ago on Robinson.
Edward R. Korman: That’s correct. That’s correct, perhaps I went off in trying to give a policy of justification, for that holding which is a simply statement of fact and the policy justification for I think was stated in Mr. Justice Powell’s concurring opinion in Robinson and that’s essentially what I am urging here. That once he is lawfully in custody, it doesn’t involve any additional substantial intrusion on his privacy to then search him without a warrant as long as the police act reasonably.
Warren E. Burger: Mr. Smith.
Thomas R. Smith: Mr. Chief Justice, and may it please the Court. Before getting into the argument itself I would like to comment briefly on the facts as they were indicated by Mr. Korman. I am afraid he exaggerated in at least one respect. First of all, there may have been the intimation that the Respondent Edwards was one of the three individuals who left the suspicious tan automobile. There is absolutely nothing in the record which indicates that, at no time, by no person was he identified, as one of the human beings who emerged from that automobile. There is nothing in the record which in anyway associates him with the now deceased Respondent Livesay. Nor is there anything in the record which indicate as I think Mr. Korman did that when Officer Ashley first observed the Respondent Edwards and the man Huntley with whom he was ultimately arrested that he was suspicious of them. He in fact was not suspicious of them, the record is replete with testimony that they acted in a completely normal and un-suspicious manner. When he observed them for the first time, they were already on the sidewalk in front of the Post Office and at the north edge of the Post Office. From that point they walked one half block north and one half block west in a perfectly normal manner until such time as he received the radio transmission advising him that the post office had been activated where upon he apprehended them, put them in his automobile and took them back to the Post Office. Now there is one --
Warren E. Burger: Don’t you suppose – don’t you suppose the officer who was entitled to put the circumstances together what he saw with his eyes and what he heard over the car radio?
Thomas R. Smith: Yes, he was. He certainly was and that’s exactly what he did.
Warren E. Burger: So then you say that that did not add up to probable cause to stop them or arrest them?
Thomas R. Smith: No, I don’t at this time want to make a serious argument about probable cause, that was made in the District Court and it was made in the Court of Appeals. It was made both places unsuccessfully and I frankly don’t hold that much hope of making that argument successfully here so that reason we did not talk extensively or at all in about that in the brief. But those are facts that the Court ought to consider.
Speaker: It’s stated in the petition for a certiorari that the question presented is whether what happened here was an unreasonable search and seizure when there was -- it states that there was a lawful arrest after he has been unlawfully arrested. I don’t have before me here your response to that petition and maybe you did not make one. But that is the question, I wonder if it is open to you to make the argument that the arrest was unlawful.
Thomas R. Smith: Yes, we did respond and to my knowledge we did, I just don’t know at this moment whether we affirmatively raised the probable cause issue in that response or not.
Speaker: Or whether you accepted the question as framed by the Government.
Thomas R. Smith: That’s correct, Your Honor.
Byron R. White: Well, could you -- couldn’t you argue to sustain the judgment on that behalf?
Thomas R. Smith: I am sorry. I don’t understand Mr. Justice White.
Byron R. White: Well, you are respondent and the Government comes here, I suppose, couldn’t you argue any ground to sustain a judgment?
Thomas R. Smith: I think we could, Your Honor and --
Byron R. White: As long as you did not enlarge your rights given by the --
Thomas R. Smith: I would hope so Your Honor and for that reason to the extent that we can keep it open, I would like to keep open the issue of probable cause.
Speaker: But you don’t probably argue it.
Thomas R. Smith: That’s correct.
Speaker: What’s this other paper that Mr. Smith that you describe in the courts that -- I don't know understand.
Thomas R. Smith: If it please the Court, I don’t know either. I have never seen a copy of it. I was advised at lunch.
Warren E. Burger: It’s something your client filed in long hand, apparently.
Speaker: You haven’t seen it either?
Thomas R. Smith: I have not, Your Honor, I became aware of its possible existence for the first time at lunch with Mr. Korman this afternoon. I have not heard about it or seen it prior to that time.
Speaker: I gather this is on file list.
Warren E. Burger: The clerk is checking it now.
Thomas R. Smith: What I’d like to really talk about is whether or not there was a warrant requirement for the search in this case. The existing authority in this Court, it seems to me makes it very plain. That a search without a warrant, whether that is a search of a person or of a place is an exceptional search and maybe justified only if the circumstances of that search bring it within one of the exceptions to the warrant required which have been previously established by this Court. The Court said that in Peck, it said it in Katz, said it in Terry and as recently as May of 1973 it said that a warrantless search is an exceptional search in Schneckloth and in Cupp versus Murphy. So, I think that the Court is historically on record as indicating that even in searches of persons, a warrantless search is the exceptional search unless it comes within one of the existing categories of exception. Now plainly, one of the existing categories of exception is a search incident to arrest. This Court has always been talking about what is a search incident to arrest, require that some time, relationship exist between the time of arrest and the time of search and it has done that properly because of the reason for the exception. The Court has said that the reason you may search incident to arrest is to one, protect the officer from weapons and two; ascertain the existence of and preserve the destruction of evidence, which may be used in prosecution ultimately arising out of that arrest. Now, it seems to me that when either of or both of those purposes of the exception no longer exists, then the exception ought no longer exist. So that, if by the mere passage of time, we have defeated the purpose of the search incident to arrest exception then that exception no longer has application. Now, the question of a search for weapons was never involved in this case. This was plainly a search for evidence and it is not a search to capture evidence. It is a search to ascertain whether or not the evidence ever existed. The passage of time we submit, the minimum of nine or ten hours from the time of arrest until the time that the clothing was taken defeats the purpose of taking the clothing so as to preserve evidence.
Warren E. Burger: Would you think it would have been all right if it was done two hours later?
Thomas R. Smith: It depends what had happened in those two hours if it please the Court. If the defendant had been placed in a jail cell by himself, unattended during which time he may have taken whatever action he wanted to with respect to whatever evidence there may have been on this person, I think it would make a difference. In the one Court of Appeals case which involved a delay of six hours, the court was very emphatic in indicating that during that entire period of time. The defendant was physically in the company and in the custody of the arresting officers so that there was no intervening opportunity for him to dispose off the evidence that he wanted to.
Warren E. Burger: Is that the Florida case you are referring to?
Thomas R. Smith: I am sorry?
Warren E. Burger: Is that Florida case you are referring to?
Thomas R. Smith: I am not sure.
Warren E. Burger: Well, not important.
Thomas R. Smith: I think that might be the Caruso case. But at any rate, it was very important to the Court of Appeals in that case and it based its decision on the incident to arrest exception. It did not say that there was not a blanket dispensation from the requirement to obtain a warrant. It said in this case, this search was in fact a search incident to arrest and it was such because it was made during the arrest process, the incarceration process, the booking process during all of which time, the clothing of the defendant was under the constant observation of the arresting officers and I think --
Warren E. Burger: I suppose it’s reasonable here to assume or would you think it would be reasonable to assume that the arrested people here didn’t have any idea that some of this paint flakes, these are the evidence was still attached to their clothing?
Thomas R. Smith: Yes, I would Your Honor, and I think that argues against the incident to arrest exception. The defendant cannot be aware of the fact of the evidence on this person as the police officers could not have been because of its microscopic size --
Warren E. Burger: Well, let’s suppose that it had been impregnated in the fabric and perhaps in the cuffs of his pants which should be a place where these things would lodge off and he was sure enough to have taken his clothes when he wasn’t observed. Shaken them all up, brush them, turned down his pants cuffs and scattered this paint flakes on the floor and then in the morning, they come in with a vacuum cleaner and took off all this material and found it that way, what would you think about that? Would they need a warrant to vacuum the floor?
Thomas R. Smith: No, Your Honor because that’s not a search. The person is not a search for his clothing, it is merely vacuuming of the --
Warren E. Burger: Search of his place of temporary habitation isn’t it?
Thomas R. Smith: Your Honor, I think he has no privacy in that sense to his place of habitation, we do submit --
Speaker: Well, is that the likely able search where he abandoned --go arrest and search in his own room, in the hotel and he had thrown stuff in the waste paper basket, the Court held that that was abandoned? So he no longer could complain of its seizure and its use.
Thomas R. Smith: Yes, that would have application --
Speaker: Would that be a sort of situation that Chief Justice suggests?
Thomas R. Smith: Yes, but that is plainly of course not the case here. They took the clothes from his body solely for the purpose of submitting them to a laboratory examination. It was not a custodial search, it was not a search in the normal -- it was not a custodial taking, it was not a taking in the normal processes of the Lebanon police department. It was a taking under circumstances which we submit plainly do not conform to the incident to arrest exception.
Warren E. Burger: Let’s change this hypothetical a little bit then, instead of brushing his pant's cuffs out, the officer had come in, in the morning with a small hand vacuum cleaner and said, “Now this is not going to hurt you, I need you to just stand still and I will vacuum your trousers.” And the vacuum is from the outside of the trousers without disrobing him or anything. Unreasonable search?
Thomas R. Smith: That makes it I think a much more difficult question. It indicates what Mr. Justice Stewart has said for instance in Chimel that whenever you draw a line they’re going to be cases on either side of that line which are really not substantially different but it is nevertheless necessary to draw a line. I don’t know what the answer would be in that particular case.
Speaker: In this connection let me ask the question with you which I asked Mr. Korman. Suppose routinely, that this jail, they issued prison guard, would you have a different case?
Thomas R. Smith: No, I think that our position would be the same, if the taking of the clothing of an arrested person is merely a custodial taking. That is if it’s taken only so that the inner workings of the police system can be better expedite that you would nonetheless require a warrant in that case. Well the reason that in our view of it, the mere fact of arrest is not denied to the person arrested, his rights of property or his rights of privacy in his clothing so that if --
Speaker: And if you were, instead of being in a jail, just after arrest, if he were a convict in the state penitentiary, would a search warrant be necessary for the compulsory exchange of clothing and the examination of his pockets there?
Thomas R. Smith: Well, that’s a different, again a different circumstance because the fact that I would want to emphasize here is that this was not a routine custodial taking. This was a taking for the specific purpose of making a search and was necessary for them to go out and purchase clothing so that substitute clothing could be held. I might indicate this, well, it is not all absolutely clear from the record. What they took from Edwards was a shirt, a sweater, trousers and his shoes. What they replaced them with was a t-shirt and a pair of trousers. It is not a matter of record but it is the fact that he was in the jail for a week without a pair of shoes until his wife was able to obtain a pair and bring them to him.
Speaker: I take it. The point of distinction you are drawing if I understood you correctly was this was taken for the purpose of making a search.
Thomas R. Smith: Yes.
Speaker: And if that is so then why isn’t the answer to my penitentiary inmates situation exactly the same?
Thomas R. Smith: It would be if it were taken for the purpose of making a search, we submit that a warrant would be required although plainly in those circumstances it is not taken for the purpose of making a search.
Warren E. Burger: Well, to pursue Mr. Justice Blackmun’s question, suppose that making a search of his clothes when he comes into the prison to be sure that he is not carrying narcotics or any other dangerous material. They must get a warrant when he arrives at the prison?
Thomas R. Smith: No, Your Honor, that is plainly an inventory search.
Warren E. Burger: Inventory? Do you regard a search for narcotics as an inventory search? It’s not an inventory search if the term --
Thomas R. Smith: Your Honor, I regard what is a truly an inventory search even though it may result in the location of or the finding of narcotics is an inventory search, to which historically the warrant requirement has no application.
Speaker: Because they take the objects in the clothes and I suppose package them and suppose entirely returned.
Thomas R. Smith: That’s correct, Your Honor.
Speaker: It’s the idea of an inventory search.
Thomas R. Smith: That’s right.
William H. Rehnquist: There’s no real motive to look --
Thomas R. Smith: It’s a safekeeping kind of taking.
William H. Rehnquist: There’s no real motive to look for evidence in your traditional inventory search.
Thomas R. Smith: That’s correct, Your Honor and it’s for that reason that we submit no warrant is required for that kind of search. There was however in this case a specific intent to search for evidence.
Speaker: The trouble with your posture here, suppose the warden of the state penitentiary is aware that there are narcotics in the prison and so he asks every inmate to change clothing. As I understand your position, you would require a search warrant.
Thomas R. Smith: No, I would not Your Honor. I think there is just a completely separate set of circumstances involved in searching men who are in a penitentiary who have already been convicted of a crime, then there is in the removal of clothing from a person arrested on probable cause, very tenuous probable cause for the purpose of ascertaining whether or not there is on his person evidence which may involve him in the matter of which he has been held and which he is being held on probable cause.
Warren E. Burger: These labels we give are sometimes elusive and not thoroughly reliable but routinely when a person goes into a prison as distinguished from a jail where he is being awaiting trial. He is convicted and goes into a prison. There are two things done to him. There’s an inventory of everything he has which is then if it is something not permitted is put away, he is given a receipt for it then there is the prophylactic search, which is to see if he has any contraband weapons, narcotics, whatever. Now, going back to this prophylactic search if you’ll stay with my term to distinguish that from the inventory search, would you say they need a warrant to make the prophylactic search before he goes into the Lorton Penitentiary for example?
Thomas R. Smith: No, Your Honor, I would not.
Warren E. Burger: And if they find the narcotics, I suppose he is in trouble of some kind isn’t he?
Thomas R. Smith: I am sure he is.
Warren E. Burger: If you don’t have that case here.
Thomas R. Smith: That’s correct, Your Honor.
Speaker: Well, even if they find the narcotics and that using the term inventory search, it would still be proper.
Thomas R. Smith: It is exactly the same kind of trouble, yes. I'd like to comment briefly, if I may on the notion to, on the notion that somehow or other the mere fact of an arrest, the mere fact that a custodial arrest somehow or other brings about a substantial diminution of the arrested person's Fourth Amendment rights, it seems to me anomalous that a circumstance, that is an arrest which plainly accentuates and puts into acute focus his Fifth and Sixth Amendment rights, his Fifth Amendment rights to the extent that the arresting officers must not only honor them but must in fact inform him as to what they are? That same circumstances enact to diminish what would otherwise be his plainly available Fourth Amendment rights. It seems to me a little bit like saying that if you for somehow rather -- for some reason you have the right to beat me above the head with a stick that you by that reason have the right to stamp upon my toe and the reason that you have the right to stamp upon my toe is that doesn’t hurt as much as beating me above the head with a stick does. I've never failed to understand the thrust of the lesser intrusion argument. It seems to me to be that kind of circumstance.
Speaker: Well, isn’t that what we just held in Robinsons?
Thomas R. Smith: But that was plainly, Your Honor, a search incident to arrest, it was a face-to-face confrontation. The entire search in question at that time was conducted immediately at the scene of arrest. There was no time interval.
Speaker: But the reason that it could be conducted, because they had the right to take the man under custody and therefore they had a right to make this search.
Thomas R. Smith: That’s correct, Your Honor. That it seems to me though is completely different from this case. In my view, Robinson has little if anything to do with this case because Robinson was plainly a search incident to arrest.
Speaker: Well, I agree with you that the facts are quite distinguishable but what I was questioning was your suggestion that there is some non sequitur about saying that when a man is arrested his Fourth Amendment rights are diminished because certainly they are not diminished for purpose of -- they are diminished for a purposes of search incident to that arrest.
Thomas R. Smith: That’s correct, Your Honor.
Speaker: What about I guess --
Thomas R. Smith: How does that apply here, Your Honor?
Speaker: Well, I mean. Where was the car search there?
Thomas R. Smith: Well the notion of course in Chambers was that if it’s reasonable to make a search at the place of arrest, it is not unreasonable to transport the automobile to the jailhouse and there make the search. I think that Chambers --
Speaker: Would you say that it have been reasonable if they had searched his clothing for these paint scrapings right at the moment of his arrest?
Thomas R. Smith: It depends, Your Honor. When we say he was arrested, if in fact he was arrested at the time that Officer Ashley put him in his vehicle it would have been totally unreasonable. Because at that time all that Ashley knew was that he had seen Edward on the sidewalk and that the alarm had gone off in the Post Office.
Speaker: Was there any point in this process was it – would it have been reasonable to search his clothing with his paint scrapings without a warrant?
Thomas R. Smith: If the record were a little clearer as to what the intent of the Lebanon Police Department was when they took Edwards to the jail, if there was something in the record which indicated at that time. That they had the intent at that time to search his clothing, then I think that plainly, the search of the clothing had they taken it immediately upon his arrival at the station so as to not expose him to any public embarrassment would have been reasonable.
Speaker: You mean for example --
Thomas R. Smith: That I think could --
Speaker: Had they noticed the scrapings on the sill before they took him to the station house?
Thomas R. Smith: Yes, Your Honor.
Speaker: And at the station house, proceeded immediately on booking him as per this, take his clothes off so that they could examine it to see if they can find the scrapings. Would that might be all right?
Thomas R. Smith: That would have been reasonable, Your Honor, yes.
Speaker: But he thinks up pretty far --
Thomas R. Smith: I think not, Your Honor.
Speaker: You’re assuming the validity of the arrest?
Thomas R. Smith: Yes.
Speaker: For the purpose of answering this question.
Thomas R. Smith: For the purpose of this argument, yes.
William H. Rehnquist: But why is it in the light of Robinson that you say it would not be permissible to search his clothes at the moment of arrest?
Thomas R. Smith: For the reason that there was no, well it would have been unreasonable to make this kind of a search. It would have been unreasonable to take his clothing from him at the scene of arrest for the reason there was no reason to do so. There was problem cause whatever. The arresting officer knew only that he had seen Edward on the sidewalk at the Post Office and that the --
William H. Rehnquist: Why do you need any probable cause to search incident to an arrest?
Thomas R. Smith: Well --
Speaker: There's nothing in the Robinson case that says that Robinson’s clothes could have been taken off at the time he was arrested. No, but there is a lot that says that they could be searched. If you forgive the [Laughter]
Thomas R. Smith: The reason that I say that they could not have made this kind of search at the moment of Edward's arrest was because that kind of search, even using the purely reasonable application that the Government would urge would have been patently unreasonable. There was simply no reason, no factual reason at the time of his arrest to take his clothing away from him.
Speaker: But suppose, putting to you again the, before they put him in the car, they had detected the paint scrapings on the sill of the post office and at that time said, “Take your clothes off. We want to examine and see if there are any paint scrapings on your clothing.”
Thomas R. Smith: I think that they could have done that unless we get into the Rochin problem of humiliation. But if they had taken him directly to the station house under those circumstances, under those facts that his clothing could reasonably have been taken from him then.
Warren E. Burger: What is there about the lapse of time, Mr. Smith that alters this situation that is, if they had the right to search him within a short time, reasonable time after arriving at the station house? What is it that enhances his right of privacy or whatever other factors you rely on to raise a new barrier to the search?
Thomas R. Smith: It’s exactly this. If the warrantless search is in fact an exception to the warrant requirement, the exception is rooted in the necessity or in the value to society generally of preserving evidence. Now the evidence can only reasonably be preserved if the taking or if the search occurs at such a time when you can expect the evidence to be reasonably there. So that if it is reasonable to search immediately upon arrival at the station house because the defendant has had no opportunity to disperse the evidence or to get rid of it or to destroy it, it becomes unreasonable to search ten hours later or five days later or five years later as the Government would insist because he has had during all of that time, ample opportunity to dispose off the evidence and applying the old laws school maxim that where the reason for the rules ceases to exist, the rule ceases to exist. To this situation we can say that we are the reason for the exception of ceases to exist, the exception ought to cease to exist.
Warren E. Burger: Well one of the things you are relying on is that in that lapse of time he has had an opportunity to dispose off the evidence but first we know now that he didn’t dispose off it and second, somewhat difficult to dispose off evidence while you are confined in a cell, isn’t it?
Thomas R. Smith: Your Honor, had he been aware of the fact of the paint chips he may have well taken his clothing and shaken them and thereby effectively --
Warren E. Burger: Then my hypothetical would bring the fellow in with the vacuum cleaner in the morning and that would somewhat frustrate his effort to conceal the evidence, wouldn’t it?
Thomas R. Smith: It would totally frustrate, client but that is not a Fourth Amendment consideration. We're talking about the physical removal of a persons clothing in our view retains a privacy and property right in that clothing without a warrant. I think we could also, it plainly does not do law enforcement any good. It does not help the practical workings of the law enforcement to say that in this circumstance you don’t have to have a warrant. They were plainly in no rush to gather the clothing. They waited until the next morning. They plainly had an opportunity to get a warrant. They in fact did get a warrant on the next day for the search of the automobile in which Livesay was arrested. There is no reason, it seems to me why at the same time they got that warrant, they could not have gotten a warrant for the search of the clothing.
Warren E. Burger: Well the one reason, one reason, I already indicated by the record itself on time is that at 11:30 at night, substitute clothing was not readily available but was not available until the stores opened the following morning.
Thomas R. Smith: Your Honor, I think it’s a practical matter if the Lebanon Police department really wanted that clothing at the time of arrest, they would have found some way to get it and some way to obtain substitute clothing.
Warren E. Burger: Well, do you, including just taking his clothes and letting him be on the cell in his shorts and shirt overnight?
Thomas R. Smith: No, Your Honor, I think that could plainly have found, if nothing else, I am speculating now but since they could have found clothing among the members of the Lebanon Police Department which to replace it. Finally, if it please the Court, I think that the requirements of law enforcement in this area are amply fulfilled by what this Court has done in Robinson with respect to the extent of the search that you may make incident to arrest. You may make a full field search incident to arrest and the legitimate ends of law enforcement are adequately met by that. You may find whatever evidence is on the person, you may find whatever weapons may be on the person. In Chimel, the Court has adequately established a range of the search incident to arrest that you may make beyond the person, beyond the body of the person arrested. We submit as this Court has said in Chimel or in Coolidge rather, in talking about searches of automobiles and saying that the word automobile ought not to be a talisman in the presence of which the Fourth Amendment fades away and disappears, that the word arrest likewise ought not to be a talisman in the presence of which the Fourth Amendment fades away and disappears. Thank you.
Warren E. Burger: Thank you gentlemen. Mr. Smith, you accepted an appointment from this Court and served as a volunteer counsel. On behalf of the Court, I thank you for your assistance not only to your client but for your assistance to the Court.
Thomas R. Smith: Thank you, Your Honor.
Warren E. Burger: Do you have a factual matter that you wanted to raise?
Thomas R. Smith: Page three of our brief there is a misstatement of fact of the second full paragraphs says, “Later that evening, that is after the defendants were transported to the--.”
Warren E. Burger: Page 3 now?
Thomas R. Smith: Yes.
Warren E. Burger: Well, let’s get this before us. It comes with the Government’s brief.
Thomas R. Smith: It says “Later that evening, meaning after the defendants were already transported to the jail and investigation by local police authorities reveal that an attempt had been made then to the Post Office.” That’s not correct, the investigation was undertaken immediately upon Officer Ashley’s arrival back at the Post Office with the two gentlemen and before the defendants were actually transported to jail and in the first full paragraph where we say Respondent Edwards was arrested with a companion as he walked away from the Post Office. Our Officer Ashley testified that he didn’t formally place them under arrest and so advised them until after he had determined to the satisfaction that in fact the attempt had actually been made to break into the Post Office --
Warren E. Burger: Now, would you give us the record reference for this?
Thomas R. Smith: There are two record references, the appendix pages 9 to 10 and in the transcript of the suppression minutes at page 15. And it would be our position that the actual arrest took place after the officer got satisfied himself that in fact the burglary had have a -- that the Post Office window had actually been broken into and that when he originally picked them up, it was simply a brief custodial detention.
Warren E. Burger: Thank you gentlemen. The case is submitted.