Warren E. Burger: We will hear arguments next in Taylor v. Alabama. Mr. Beno, you may proceed whenever you're ready.
Robert M. Beno: Mr. Chief Justice and may it please this honorable Court: This case comes out of the State of Alabama in reference to an arrest made on January 4, 1979. Now, the background, which I think is very important in all criminal cases, especially when the Fourth Amendment is involved, of the facts and circumstances applicable to the record generally turn... make the case turn one way or the other. Now, there was a robbery, without question, on the 2nd day of December, 1978. Subsequent to that time, in the middle days of December a Charles Martin was arrested in reference to a completely different and separate rape and robbery, and he was in the county... or in the city jail in Montgomery, Alabama.
Speaker: Do you acknowledge that whoever committed the robbery at the supermarket that you have just described left some fingerprints there?
Robert M. Beno: There's no argument to that effect, Your Honor. In fact, one issue here is whether or not... there are several... how many people were involved in the robbery. Initially--
Speaker: Well, today we're only really concerned about one of them, aren't we.
Robert M. Beno: --The fingerprints and the confession, right. And at the trial we didn't argue and did not move to suppress the fingerprints taken from the hotdogs and the package of sugar. That's not at issue here. The point here today is whether or not, first of all, there was an illegal arrest. That's a critical issue, because if there's no illegal arrest there's no need to be in front of the Court today. We have a situation where Mr. Martin said to the police officer, Mr. Mobley... I think if you'll refer to the record at page 7 of the record, his statement to the court was that he had heard... that's not in the appendix, that's in the record... he had heard. At which time I moved or I objected, and there was a discussion in front of the court and in front of the officer, and during that discussion the judge came to the conclusion and stated that, well, I think that this, what he heard from someone else, if it cannot be substantiated, certainly cannot be grounds to base a credibility upon which an arrest can follow. Well, if you'll notice, on page 15... no, on page 13 of the record, after this discussion is over we come back and we ask Mr. Mobley another question, and now he says: "Well, I don't know where he got it. " "I don't know where he got it. " This certainly... the element of credibility is involved here. Once in front of the court and the court has said that, well, just hearing this is not sufficient, it appears that his testimony changes. I think that's critical, because credibility is very important when this court decides this case. At any rate--
Speaker: May I interrupt you for just a second? The question presented that you framed in your brief is whether or not a confession taken from Petitioner following a warrantless arrest based on less than probable cause.
Robert M. Beno: --That's correct.
Speaker: And so you... for purposes of our consideration of the case, do we assume there was less than probable cause?
Robert M. Beno: That's correct. That's what I'm getting ready to show you.
Speaker: Yes.
Robert M. Beno: Now, Mr. Martin, who was as I said an alleged... or a suspect in a separate and completely different rape and robbery, was then questioned at the police station by Mr. Mobley, all right. Now, he said, and it's on the record, that he had heard such and such. The court then said: Well, hearsay is fine if it's credible and can be substantiated or give some credibility in reference to the statement. Well, the question was asked to Mr. Mobley, was there anything that you can base your credibility or you can give credit... credibility to the informant? Well, Your Honor, all he told me was that he had heard. He did not tell me who he heard it from or how he got this knowledge. I would suggest, based on that and quite frankly until this brief by Petitioner... I mean, by Respondent... it has never been argued that there was probable cause. In fact, at the oral argument in front of the Supreme Court of Alabama he readily admitted that there was no probable cause. In fact, one of the judges at that time indicated that, well, I was kind of thinking about reversing this case, but if you admit that there's no probable cause I'm going to have a little bit more difficulty. Well, now he suggests, and he tries to gloss over this failure to produce probable cause by saying that, well, we did have probable cause perhaps. He says that this Mr. Martin was a suspect in the robbery at Moseley's Grocery Store at that time. Well, the record indicates that the only reason he was a suspect is because he was arrested on some other robberies. And another time in the record he says, well, he was a suspect to me. He never indicates any reason on which to base his suspicion that Mr. Martin was even a suspect, other than the fact that he was in jail on another crime. I don't believe that can be sufficient evidence on which to give credibility.
Warren E. Burger: What was the information that Martin gave?
Robert M. Beno: Simply that he knew that Omar Taylor was involved in the robbery of Moseley's Grocery Store. That is it. Nothing further to indicate any amount of credibility. Dunaway falls very close to this case in reference to the fact that there was no evidence on which to substantiate the testimony or the statement made by the alleged individual incarcerated. One thing I want to point out. Now, a lot of the Justices on their dissents--
Speaker: Tell me, why are you arguing... are you arguing that there was no probable cause?
Robert M. Beno: --Right.
Speaker: And why are you doing that?
Robert M. Beno: Well, if there's probable cause--
Speaker: Well, I know, but is that in issue in this case?
Robert M. Beno: --It wasn't until Respondent's brief came in.
Speaker: Well, was it an issue in the Alabama Supreme Court?
Robert M. Beno: No.
Speaker: Do you think that that is open to the Respondent to make that claim here?
Robert M. Beno: Well, I know that he is going to argue that. I'll move along. Assuming that there is no probable cause, then we come to the point in fact of the arrest.
Speaker: Yes.
Robert M. Beno: All right.
Speaker: What are you relying on for the proposition that there's no probable cause, Aguilar and Spinelli?
Robert M. Beno: Aguilar and Spinelli. There's also an Alabama case which I argued originally, Berry.
Speaker: Well, presumably that's not open to you if that's a state law.
Robert M. Beno: I understand. But under Aguilar and under the petition filed by the Defendant, he states clearly that Aguilar and Spinelli are involved here. And on brief by the amicus curiae raised this also.
Speaker: Well, but Aguilar and Spinelli were both warrant cases, weren't they? There was no warrant here.
Robert M. Beno: They spell out the necessary basis for the credibility of the informant.
Speaker: To be supplied to a neutral magistrate.
Robert M. Beno: That's correct.
Speaker: But here you're not talking about a neutral--
Robert M. Beno: You don't even have that here. I understand that. I agree with you on that, Your Honor. Now, Omar Taylor was arrested following this information, without a warrant, which makes it different from Dunaway in that in Dunaway the Justices, I believe Mr. Burger, Chief Justice Burger, indicated that, well, I'm not so sure that this wasn't a consent to follow the police officer to the station. We certainly don't have that issue in the present case. We have no issue... there's no question but that he was arrested at the time he was taken into custody by the police. In fact, he was handcuffed. Now we come to the question under Dunaway and under Brown. There are three temporal... I mean, there are three circumstances which the court would look to. Certainly, the temporal proximity is involved, and Mr. Justice Stevens in Dunaway indicated that that is an ambiguous term in that certainly the longer an individual is incarcerated, considering the facts and circumstances of his incarceration can not... will not necessarily dilute the detention, but will only increase the confusion on the part of the incarcerated individual. I think it's clear here that the Defendant was... or the Petitioner was questioned at least three times, perhaps four; that he was fingerprinted prior to being placed in a lineup. Now, it's interesting in discussing the fingerprinting that you ruled in Davis v. Mississippi that under narrowly defined circumstances perhaps the limits of probable cause can be removed to some extent.
Speaker: --Was he fingerprinted again after that occasion?
Robert M. Beno: After the arrest.
Speaker: Was he fingerprinted a second time?
Robert M. Beno: He was not... he was indeed... yes, he was indeed fingerprinted. At the trial he was fingerprinted.
Speaker: Well, those were the only fingerprints that were introduced.
Robert M. Beno: That's correct.
Speaker: Well, why were the fingerprints taken immediately after arrest excluded? They were excluded?
Robert M. Beno: They were excluded.
Speaker: Why?
Robert M. Beno: Under Mississippi versus Davis. And under Mississippi--
Speaker: And the trial court then ruled that, A, there was no probable cause for arrest--
Robert M. Beno: --That's correct.
Speaker: --That the fingerprints were excludable as the fruits of an illegal arrest--
Robert M. Beno: That's correct.
Speaker: --And then the Alabama Supreme Court holds that the taint has been removed.
Robert M. Beno: Well, quite frankly--
Speaker: Is that right?
Robert M. Beno: --That's what they ruled.
Speaker: Yes, that's what... but the trial court... and did the Alabama Supreme Court disagree with the holding that there was no probable cause?
Robert M. Beno: No, they indicate that. They indicated that the taint had been removed. Actually, what the Alabama--
Speaker: They didn't disagree with the ruling that the first set of fingerprints were fruit of an illegal arrest?
Robert M. Beno: --They did not.
Speaker: Yes.
Robert M. Beno: It's interesting that the Alabama Supreme Court basically said in its opinion that they were rather discouraged by the exclusionary rule, and that they were just, quite frankly, not going to follow it. That is basically what they said, because they did not delineate the reasons upon which they reversed the case. They did not delineate the factors on which they overturned the case. Going a little bit further now, it's interesting in the fact that in Davis you all indicated that perhaps there will be a case in which the fingerprints on less than probable cause can be permitted. But this case is not the one, because the individual was fingerprinted twice, he was questioned on at least... at least questioned during that period of time. In other words, they did not arrest him or pick him up specifically to get the fingerprints and then match them up. I cited in my brief M.B. v. State of New Jersey, a New Jersey case, In Re the Fingerprinting of M.B., which seemed to fall within the confines of what you all consider reasonable under Davis. In other words, they went to a magistrate and indicated that we have the possibility of determining the murderer of an eighth grade child, because we found a ring which has fingerprint on it. We believe that the culprit in this situation may match this and is probably a member of that eighth grade class. And the court in that case went ahead and said, we will allow you, we will allow you to bring in the members of the eighth grade class and fingerprint them. But in order to protect their rights under the Fourth Amendment, should you not find that those fingerprints match they must be destroyed, so that they will not be on record, so that they will not interfere with the normal constitutional rights of the individual. And I think that's very important in this case. I think it's important that the police officers did not stop with the fingerprinting. And there's no indication in the record that they picked him up specifically to fingerprint him. There's no indication in the record.
Speaker: Counsel, how is the admissibility of the fingerprints that were taken before the arrest before the Court? It seems to me that as I recall that evidence was suppressed.
Robert M. Beno: Yes, ma'am.
Speaker: And the State didn't cross-appeal--
Robert M. Beno: No, they did not.
Speaker: --on that. And I don't see how that issue is even before us.
Robert M. Beno: Well, I'll explain something to you, that it's so important. In Dunaway you all talk about the flagrancy, purpose and flagrancy of the police conduct, all right. You discuss the fact that when the police conduct is excessively flagrant the intervening circumstances perhaps should be more credible. A stronger intervening circumstance, the more flagrant the police conduct, the more you have to look at the... I mean, of the flagrant procedures used by the police. Now, assuming again that there was no probable cause whatsoever and that this... well, I submit that this was strictly for the purposes of investigation. You've got to look at what they did. They picked this young man up--
Speaker: You want us to look at it as one of the Dunaway cases?
Robert M. Beno: --I believe it falls within the Dunaway line. I believe it falls in the Dunaway line. Fingerprints fall under the Davis line--
Speaker: They never used those fingerprints.
Robert M. Beno: --Excuse me?
Speaker: They never used those first set of fingerprints.
Robert M. Beno: Well, it's my contention that it was one and the same. It came out, the issue is the same.
Speaker: Well, the court took the fingerprints in the courtroom. Is there anything that you can think of when you've got the defendant in the courtroom that forbids taking his fingerprints or his picture or getting a sample of his handwriting?
Robert M. Beno: Let's look at this, then. What are we... how did he get in the court? How did he get in the court? If this Court can say... let's look at, what evidence did they have prior to the arrest? Nothing. What evidence did they have when they took the fingerprints? None. From that point, what did they use to get the confession? They used the fingerprints. The record is replete, is full of evidence that he was confronted with the fingerprints over and over again.
Speaker: Did the trial court... I am confused about what happened where in this case. Did the trial court suppress anything?
Robert M. Beno: They suppressed the fingerprints.
Speaker: The first fingerprints.
Robert M. Beno: The first fingerprints.
Speaker: And then the Court of Appeals decided that the confession--
Robert M. Beno: Under Dunaway, yes, was not could not come within the purview of the--
Speaker: --As to all these things that happened--
Robert M. Beno: --Yes, sir.
Speaker: --have we got to go to search the record to find them, or did you file something other than this brief?
Robert M. Beno: There is a--
Speaker: Have you filed any brief in addition to this?
Robert M. Beno: --There is another brief that was filed, a reply brief.
Speaker: I don't have it. I just don't have it.
Robert M. Beno: It was filed.
Speaker: Well, there's one here, but I didn't have it. I don't have it, either. It was filed one day late.
Robert M. Beno: Well, and we filed a motion. Let me explain what happened on that. We filed that motion--
Speaker: It was filed one day late.
Robert M. Beno: --We filed that motion on time--
Speaker: My point is, your original brief doesn't give us anything. You've got six cases cited. The whole thing from beginning to end is nine pages.
Robert M. Beno: --That's correct.
Speaker: And that's all you think of this case.
Robert M. Beno: If you will look at the appendix, you will notice that the appendix indicates the facts involved in the case. All I did was cite the case and the law as it applied to the facts, Your Honor.
Speaker: And doesn't the rule say that you give the statement of facts in the brief? Or did you not look at the rules?
Robert M. Beno: I did in fact look at the rules. At any rate, after the fingerprints were taken the girlfriend was taken to the... the individual was taken into a... for a lineup, prepared for a lineup. The lineup was taken subsequent to the fingerprints and prior to any judicial finding in this case. Now, under Johnson v. Louisiana, as cited by the Respondent in this case, he tries to indicate under the holding of the Supreme Court of Alabama they seem to indicate that the... I would like to go back to Justice Marshall for a second. The indication to me was, from the Clerk's office, was that there could be full and complete going... I could go to the record in my argument throughout. And then they indicated to me they wanted the brief to be as short as possible. At any rate, there's no question in this case but that there were an illegal arrest, three cases of, or four cases of questioning, illegal fingerprints were taken; he was confronted by his girlfriend at the time just prior to the confession; that at that time the police officers came in and discussed the case in front of the girlfriend and Petitioner, and indicated to him at that time and to her that he was facing 30 years in the penitentiary, that he had nothing left to hide, that they had the fingerprints and that they would stand up in any court. It is my position that in reference to the same, that the flagrancy of the police conduct, which appears to be under Dunaway what you all were looking at, mainly because of temporal proximity can be ambiguous. But the flagrancy in this case is that the police had two weeks between the time they got this information and the time they went and got and picked up the Defendant to make a determination of whether or not there was probable cause. There are no exigent circumstances in this case, Your Honor. There are no exigent circumstances in which to determine that they can go out and pick up this individual. They had plenty of time to go before a magistrate and ask the question of whether or not there was probable cause.
Speaker: Well, but if a magistrate issued a warrant for his arrest, I presume you would have argued that it was subject to attack.
Robert M. Beno: I agree, I agree.
Speaker: So getting a warrant wouldn't have improved their case.
Robert M. Beno: No, it would not have, not in my opinion.
Speaker: So why do you talk about exigent circumstances and having two weeks?
Robert M. Beno: Well, I'm just trying to point out that... and maybe I should hold this for response... that the Petitioner... or the Respondent in this case is going to argue that there may have been probable cause.
Speaker: Well, maybe there was.
Robert M. Beno: Maybe there was. I would submit there certainly was not. I'll reserve the rest of this time for response.
Warren E. Burger: Mr. Allison?
Thomas R. Allison: Mr. Chief Justice and may it please the Court: Prior to the trial in Omar Taylor's case, a pretrial motion to suppress the confession and to declare the arrest illegal was filed. A full-blown hearing was held and much testimony taken. At the end of this hearing the trial judge denied this motion and found the confession admissible on the--
Speaker: But the court found that the fingerprints were inadmissible and had to be suppressed, right?
Thomas R. Allison: --The fingerprint issue arose in the trial, and the very first time that the fingerprint issue came up, on page 20 of the record, the trial judge says: Now, then you come along and you say that you object to the fingerprints because of the illegal arrest and because of the language of Davis v. Mississippi. And the content in which the fingerprints were objected to was the admissibility of the fingerprint comparison in the trial of the case. This is the first time that the fingerprint issue was argued.
Speaker: Well, weren't they kept out, presumably, because the arrested was illegal?
Thomas R. Allison: The reason that the trial judge suppressed those fingerprints and ordered him re-fingerprinted was that he considered, apparently, the arrest based on less than probable cause.
Speaker: Right. And didn't you... didn't the State virtually concede that at the time, that there was no probable cause?
Thomas R. Allison: Reading the arguments of the district attorney, he attempts to establish probable cause, but concedes that the arrest was based on less than probable cause.
Speaker: Yes, and so everybody assumed at the trial court level there was no probable cause and the confession came in under the Dunaway concept, isn't that basically right?
Thomas R. Allison: Your Honor, that's correct. That is exactly what the trial judge said. There are circumstances under Dunaway that would make this confession admissible.
Speaker: Intervening circumstances.
Thomas R. Allison: Yes, sir.
Speaker: But it was not a fruit of an illegal arrest.
Thomas R. Allison: No, sir. There were certain attenuation factors that I will compare shortly.
Speaker: Now, the state didn't appeal that finding of no probable cause.
Thomas R. Allison: On argument before the Court of Criminal Appeals the State argued that there was probable cause, and the Court of Criminal Appeals rejected that argument.
Speaker: And you never appealed the trial court's exclusionary order.
Thomas R. Allison: No, Your Honor, there was no appeal on the exclusionary order.
Speaker: So presumably that issue is at rest. So do we not have to assume, then, that the arrest was illegal?
Thomas R. Allison: Was based on less than probable cause.
Speaker: Yes. Well, but you also have with you the favorable ruling on the pretrial suppression motion, which refused to exclude the confession, did you not?
Thomas R. Allison: Yes, sir, that's true.
Speaker: And that was appealed as a part of the Defendant's appeal to the Court of Appeals?
Thomas R. Allison: To the Alabama appellate court.
Speaker: Yes.
Thomas R. Allison: Yes, sir.
Speaker: That wasn't based on the notion that there was probable cause, was it?
Thomas R. Allison: The one issue that the Court of Criminal Appeals considered was, is a voluntarily given confession admissible in an instance where there is less than probable cause. And what the Alabama appellate court did was to look at Dunaway and Brown and to weigh the facts, and the Alabama Court of Criminal Appeals found nothing to distinguish Omar Taylor's case from Brown and Dunaway. Then on appeal the Alabama Supreme Court reviewed the decision of the Alabama Court of Criminal Appeals. The Alabama Supreme Court found that the causal connection between the illegal risk and the confession had been sufficiently broken, and that any taint of an illegal arrest had been sufficiently attenuated by the three factors as set forth in Brown and Dunaway. And what I would first like to do is to look at these three factors as set forth in Brown and Dunaway, and to see the correctness of the decision of the Alabama Supreme Court. The three factors: First of all, the first factor is the temporal proximity of the arrest and the confession. In both Brown and Dunaway, the Defendant was arrested and had confessed in less than two hours. In Taylor's case there was a period of six hours. And in order to show the importance of the six-hour period, we have to look at the circumstances that occurred. We know that there are four things that occurred during this period of time, and we know the approximate time, or the record shows the approximate time in three of these. When Omar Taylor was arrested at 3:00 p.m. in the afternoon and taken directly to the police station, the first thing that happened, he was processed. He was fingerprinted, he was photographed, and by his own statement they talked to him for 15 minutes. We know then that he was taken directly to a lineup. According to Omar Taylor's estimate, this lineup lasted one hour. Then, ten minutes later, Detective Wilson read him his Miranda rights and confronted him with the fingerprint comparison. While he was being placed in the lineup, the police officers had taken the latent print from the crime scene, they had compared them with these roll prints, and he was confronted with these prints and he declined to make any statement. He was then placed in his cell. Then Omar Taylor says, that afternoon I talked to my girlfriend and I confessed. But it was not the girl... but it was not that afternoon. If you look at the record, his confession came at 9:00 p.m. that night. So if you add up this time between 3:00 p.m. and 9:00 p.m. that night, some six hours, the activities that occurred immediately after his arrest consumed some two and a half hours, approximately, or three hours at the most. But this leaves a three-hour period, and this is important, I think, from the length of time, because during this period he sat in the solitude of his cell. He had an opportunity to compose his thoughts and to ensure that the confession was a product of his free will. The second factor to be considered, intervening circumstances. In Brown and Dunaway there were none. But I think there are several circumstances that are significant and should be considered. First of all, I use the period of solitude in his cell as an example to show what happened to him during this six-hour period. But I think as an intervening circumstance we would have to consider this period of solitude in his cell. His Miranda rights were read to him or given to him on three occasions, and the final time was just minutes before he confessed. Omar Taylor was a twelfth grade student, and just before making his confession the police also read him his Miranda rights. He gave him a copy, Omar Taylor read it and signed the waiver of rights form. Another intervening circumstance is the visit between Omar Taylor's girlfriend and neighbor. There is a difference in the versions of exactly what happened when you look at the record. Omar Taylor gives a different version from that of the police officer. According to the police officer, at 8:50 p.m. that night he took Omar Taylor out of his cell, read him his Miranda rights, and had been talking to him for approximately ten minutes. At that time Omar Taylor's girlfriend and neighbor arrived. She wanted to talk to Omar Taylor. Omar Taylor wanted to talk to her. So the police officer allowed them to have a private conversation in the detective's office. After this private conversation, approximately ten minutes, Omar Taylor confessed. But I think that as an intervening circumstance you would have to consider the conversation, in which Omar Taylor was free to discuss anything in the privacy there with a person with whom he was very closely associated. And the last intervening circumstance which is given weight by the Alabama Supreme Court... and this is prior to the confession... an arrest warrant was obtained based on an affidavit that the officers made. This affidavit included information about the fingerprint information. The arrest warrant was issued prior to the confession. During the exclusion... during the motion to exclude the confession, this evidence pertaining to the issuance of the search warrant was placed before the trial judge. During this hearing the information was before him that these fingerprints were used as a basis for the warrant. There was no specific objection on this point. The first time that the fingerprint issue arose was in the trial itself, when the district attorney attempted to introduce into evidence a comparison of the fingerprints from the roll prints and the fingerprints from the crime scene, at which time the trial court sustained the objection and ordered the Defendant re-fingerprinted.
Speaker: General Allison, I'm curious about one thing. Didn't I detect something in the record about a request on his part during this period for an attorney?
Thomas R. Allison: There is a conflict of testimony on this point. The two police officers that testified both stated, no, he did not ask for an attorney. Detective Hicks very clearly testified on two occasions, no, he never requested an attorney. So what you have, I think that when the trial judge considered the totality of the circumstances, he was considering two things when he considered this first motion. He was considering also a Fifth Amendment question, the voluntariness of that confession. And in considering all the facts and circumstances surrounding it, I think that the trial judge had to consider this conflict of testimony between the officer and then the Defendant. The Defendant said a number of things. He said, I signed the statement of rights form after I confessed. But then when he was shown the date on it, he changed the story and said, no, I believe I signed the statement of rights form before I confessed. But I would say that there you have a direct conflict of testimony that had to be resolved by the trial court. The third factor that I would like to look at is the purpose and the flagrancy of the official misconduct of the officers. I want to compare the conduct of the officers in this case with that in Davis v. Mississippi, Dunaway and Brown. In Davis, the police officers had a latent fingerprint from a crime scene. The only description the rape victim could give was that it was a young Negro youth. That was all. The police go out in a dragnet situation and arrest some 24 people, in a complete absence of probable cause. In Dunaway, the officers maintained that the defendant was simply detained. They did not arrest him, they maintained. They merely took him to the police station for interrogation. The information in Dunaway came from a person being held in jail. It passed through several hands. We find a completely different situation when you look at the fact situation in Taylor. In Brown, Brown was nothing more than an associate of a murder victim. He was not even a real suspect. And yet the officers go to his apartment at 7:30 at night, they search his apartment without a warrant. They jump out and arrest him, and they arrest him in such a manner that would cause fright and shock and confusion. They take him to the police station. He has confessed in less than two hours. In Taylor's case, the investigation had focused on one individual, Omar Taylor. The officers go to Omar Taylor and they say, Omar Taylor, you are under arrest for the robbery of Moseley's Grocery, and they take him to the police station. I want to look at the probable cause that the officers had.
Speaker: Of course there are some parallels. In both Dunaway and this case, it was a man in jail who made the suggestion.
Thomas R. Allison: Yes, sir.
Speaker: And in this case Martin himself was ultimately convicted, was he not, or implicated at least, in the robbery?
Thomas R. Allison: When Omar Taylor gave his statement, he named Charles Martin as his accomplice. I think that we can show that in this case there is much more probable cause and there's much that would distinguish this case from Dunaway. Some 20 days after the robbery of Moseley's Grocery... and this robbery of Moseley's Grocery had been one of a series of armed robberies in the same neighborhood. 20 days after the robbery, Charles Martin was arrested in a robbery in the same neighborhood. During the week following the arrest of Charles Martin, Detective Mobley began to talk to Martin. He knew Martin as one of the three suspects in the Moseley's Grocery robbery. Charles Martin and Detective Mobley began to have conversations over a period of a whole week. On numerous occasions Mobley talked to Martin. He impressed upon him the importance of telling the truth if he wanted the information to be known to the judge. He emphasizes the adverse consequences that any false information would have. Detective Mobley said, that over a period of a week, I developed a rapport with this man. He convinced me that he was telling the truth. Now, there is a difference in the testimony, because on one or two occasions Mobley says, Charles Martin told me he heard. And I'm sure that over a period of talking to this man for at least a week, I'm sure that on occasion he said, I heard, but on other occasions he said, I know. And the district attorney attempted to clarify this point. On page 15 of the record, which is not in the joint appendix... part of page 15 is... but on page 15, on redirect examination the district attorney attempts to clarify this point. He asks the direct question: "Now, when Martin gave you this information, was it in the sense that Omar Taylor did the robbery or X told me that Omar Taylor did the robbery? " And his answer was: "It was in the sense that Omar Taylor was involved. " He repeatedly told him that he knew that he was involved. On the following page he states: "He didn't say anything else other than the fact that he knew that Omar Taylor was involved in the robbery. " I think that an experienced police officer, knowing that Charles Martin was a suspect in the very same robbery, I think that an experienced police officer would know that this man could not tell him how he knew without confessing, without saying, I was there standing beside him and robbing Mr. Moseley. The officer knew that he could not tell all the circumstances or the basis of his information, but I think the fact that this man was known as one of the three suspects gave weight to this officer's information and his belief--
Speaker: What did Martin get as a result of this?
Thomas R. Allison: --The record does not show what the police officer told him. He said, if you give me reliable information I will see that any help you have given us will be presented to the trial judge for whatever benefit he can give you. He could not promise him anything, but he could only tell him that the judge would be made aware of it.
Speaker: Well, what did he end up with?
Thomas R. Allison: I have no idea, Your Honor. The record shows nothing about Charles Martin and his sentence in his case. I think that--
Speaker: Mr. Allison, I take it from your argument you're not going to press upon us the necessity to apply some good faith exception to the exclusionary rule or any modification of it?
Thomas R. Allison: --What I would ask Your Honor is that... I think I'm going to look a little bit further in the probable cause area, but I think what you will find is that if the officers were technically short of probable cause, that they acted in good faith; that whether they acted in good faith could not be a subjective matter with the officers. You would have to look at it in an objective manner. But if there is an objective, reasonable basis for that belief, then you find this evidence admissible under a good faith exception to the exclusionary rule as set forth in the Fifth Circuit case of United States v. Williams.
Speaker: Was there any finding by the courts below specifically of the good faith of the officers?
Thomas R. Allison: Your Honor, the language of the Alabama Supreme Court when they discussed the exclusionary rule, it is very difficult to determine exactly what they had in mind It is a detailed history and discussion of the exclusionary rule. But Your Honor, I cannot answer that question. Your interpretation of the second half of the opinion is open to interpretation, I would think, Your Honor.
Speaker: But you can't point to any specific finding in the courts below on the good faith?
Thomas R. Allison: Your Honor, there was none. But to conclude in the area of probable cause, I don't think that in the suppression hearing the extent of probable cause was ever brought... or was fully developed. The officers had... also had a description, not like Davis v. Mississippi, but of a colored male, five foot six inches, 150 pounds, 20 to 25 years old. The record doesn't even show--
Speaker: Did they know what the Petitioner looked like before they went out and picked him up?
Thomas R. Allison: --Your Honor, that's exactly what I was going to say. The record is completely silent. This was never developed.
Speaker: So that we can't assume that they relied on the description, then? The record suggested to me they relied entirely on Officer Mobley's conversation with this man, with Martin.
Thomas R. Allison: I think that the... I think that that is an accurate interpretation.
Speaker: In fact, he didn't arrest him himself, if I understand. He got two other officers to go out and pick him up, didn't he?
Thomas R. Allison: He relayed the information to a detective, I believe it was Detective Alford, I believe, who actually made the arrest.
Speaker: In that relay did he tell him what the Respondent looked like... what the Petitioner looked like?
Thomas R. Allison: The record is silent. It doesn't go into that. And if you'd like me to, I would make my remarks about the exclusionary rule. If you don't want to hear those, then--
Speaker: They're covered quite fully in your brief, I think, aren't they?
Thomas R. Allison: --With the exception of one thing, if I might add, that in the past this Court has used a balancing process in making a determination as to whether or not to apply the exclusionary rule. In a number of cases this Court has stated exactly what factors were balanced. In U.S. v. Calandra this Court weighed the potential injury to the functions of a grand jury on the one hand and the effect the suppression of evidence would have as to a deterrence of police misconduct on the other, and this Court found that illegally seized evidence could be admitted as an exception to the exclusionary rule. In Waldor v. United States, this Court weighed the need to prevent perjury and the public interest in determining the truth on the one hand, and the interest safeguarded by the exclusionary rule on the other, and this Court that illegally seized evidence could be used for impeachment purposes. In Michigan v. Tucker, this Court weighed society's interest in the effective prosecution of criminals on the one hand and the need to provide an effective sanction to a constitutional right on the other.
Speaker: The Court's familiar thoroughly with Waldor, because we reaffirmed that in Harris against New York many years later.
Thomas R. Allison: Your Honor, what I would ask the Court to do if they found this evidence otherwise inadmissible is to weigh society's interest in the prevention of crime on the one hand and the benefits derived in applying the exclusionary rule in an objective good faith situation on the other, and consider... I'll name these very briefly... the high cost to society in the release of criminals. You can see the agony of the Court of Criminal Appeals when they say, we are loath to reverse the conviction of a man so obviously guilty. Guilt drips from the fingers of both hands, and yet we are lighted by... our path is lighted by Dunaway. Consider the suppression of the truth in a criminal trial. Here what could be more reliable than fingerprints? Consider judicial integrity. Consider the reaction of the public in what they see, where robbers, murderers, rapists are released on what the public calls a technicality. And consider that judicial integrity is not injured to the same extent when there is a good faith mistake on the part of officers. And consider proportionality. Consider the difference between the flagrant violation on the one hand and the good faith action of the police officers on the other.
Warren E. Burger: Do you have anything further, Mr. Beno?
Robert M. Beno: Mr. Chief Justice and may it please the Court: Respondent's statement to you in reference to the facts in this case certainly finds no support in the record. He indicates that Charles Martin was a suspect in the crime. There is no factual evidence from the record to indicate on what basis he finds that conclusion. He tries to change the events which occurred at the police station and give you some indication that the continuous questioning and police investigation on this crime took place in a very short period of time. I think it's clear from the record that the Defendant was arrested at 3:00 o'clock, that from that point until he got to the police station, although there is a conflict in the testimony, that he was at least questioned by the police officer in the car; that he was questioned prior to his fingerprints being taken; that he was placed in a lineup prior to a warrant being issued; that he was again questioned. And it's clear on the record that a Detective Wilson... and this was without rebuttal by the State... that a Detective Wilson threatened to shove his head through the wall if he did confess.
Speaker: Well, you don't... I didn't think you were making any claim that the confession was coerced; are you? You're just saying it's a product of an illegal arrest.
Robert M. Beno: I understand, but I think it's clear that--
Speaker: Well, you've never raised the made a coerced confession claim in this case.
Robert M. Beno: --But I'm pointing out, we're now looking at the flagrancy of the police conduct. Now, that's certainly a consideration of Dunaway.
Speaker: That's quite different from coercion.
Robert M. Beno: Yes, that's correct.
Speaker: That's what he's suggesting.
Robert M. Beno: But we're talking about the flagrancy of the police conduct and the purposefulness from which the arrest was made. It seemed almost impossible in my mind that Respondent can argue a good faith action on the part of the police.
Speaker: Well, you wouldn't... if there were probable cause to arrest and the arrest had been legal, you don't suggest that any of this evidence would then be inadmissible, do you? If there had been probable cause?
Robert M. Beno: If there's no illegal arrest, we have no grounds for being up here.
Speaker: Yes, yes. Exactly, exactly. So if the police officers mistakenly thought there was probable cause but there wasn't, they just proceeded as though there was.
Robert M. Beno: That's correct. That's how they proceeded in this case.
Speaker: What makes you think that's so outrageous? I mean, they may be wrong.
Robert M. Beno: I understand.
Speaker: And under the law it may be that the evidence is inadmissible. What makes their conduct so outrageous?
Robert M. Beno: They had this information in front of them for a period of over a week, Your Honor, over a week to make a determination as to whether or not there was probable cause to make this arrest.
Speaker: I suppose this wasn't the only case on the police blotter, was it?
Robert M. Beno: I understand that, Your Honor. But certainly you're not going to... it's not going to be contended that because of the number of cases on the police blotter that a police group can go out, even when there is time, in fact time to go to a magistrate or at least contact a district attorney or something of that nature to determine whether or not, based on the bald statement of an alleged rapist and robber, that you can go out and make an arrest. I don't think this Court is going to come to that conclusion. If this was a case where after the information came in to him he had immediately gone out based on that and in good faith made an arrest, that might have been a situation where it was simply a mistake. This is not a case where there is simply a mistake. This is a case where the police obviously knew that they did not have probable cause, that they had time to make a determination... have a determination made as to whether or not there was probable cause, that the only purpose that the Defendant was picked up in this case was in order to find out whether or not they could, through their flagrant and purposeful measures, whether or not they could bring in certain evidence during the detentionary period on which to hold the Defendant. That is certainly the only fact before you in this case. If this Court is of the opinion that the police can purposefully and when knowing they have no probable cause go out and pick up an individual in order to determine through investigation of that defendant's condition at the police station whether or not they have a case against the defendant, then we're in a situation where the exclusionary rule no longer serves a deterrent purpose. Certainly the medication served by the exclusionary rule is not a pleasant one. But the interest of society in protecting them from abusive conduct and extraordinary conduct on the part of the police must be balanced against the need to protect society. And in this case there is no evidence that the officers in this case acted in any other way than flagrantly. And the time period involved certainly does not take this case out of Dunaway. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Earl Warren: Number 106, Alaska, Petitioner, versus Arctic Maid et al.
Gary Thurlow: Mr. Chief Justice, may it please the Court. Beginning in 1949 --
Earl Warren: Mr. Thurlow.
Gary Thurlow: Beginning in 1949, a number of Puget Sound canneries began to equip ships with refrigeration equipment. At the beginning of the summer each year, these ships would head to Bristol Bay at the beginning of the red salmon fishing season in Bristol Bay. Bristol Bay is a large bay in Western Alaska, a very shallow bay. These ships would load on about seven to 17 catcher boats. These catcher boats are fishing boats. They're 30 to 32 feet long. They're about 10 feet wide. These boats would be carried to Bristol Bay. When the ships reach Bristol Bay, they would anchor approximately three miles from mean low tide. They would align themselves in order to give the catcher boats rooms -- room. They didn't want to have the anchor lines or the freezer ship followup the gill nets which the catcher boats use in catching salmon. Homer Kyros, who is the -- who was the captain of the Arctic Maid, stated that he designated his anchorage beforehand and that when the Arctic Maid reached Bristol Bay, it anchored at this anchorage which has already been selected and then the fishing effort would begin. After the freezer ships had anchored, they would launch their catcher boats and the catcher boats would fish between the freezer ships and along the shores of Bristol Bay. They fish right along the beaches, right along the shore. The fisher -- the catcher boats were manned by two fishermen each. When the catcher boat load a salmon or when the fishermen were ready to come back to the freezer ship, they would return to the freezer ship, the freezer ship would lower the net onto the catcher boat, the fish will be thrown on the net. The net would be hoisted through the ship and dumped into a brine tank. There, the fish will be frozen and after the fish were frozen, the fish will be transferred to another part of the ship where it would be stored until the end of the Bristol Bay red salmon fishing season or until the freezer ships were through with their Alaska operations. The freezer ships spend from 25 to 65 days in Alaska waters. The freezer ships purchase some fish from independent fishermen. The record doesn't indicate how many they do purchase. There's no evidence at all on that point.
Charles E. Whittaker: By that, you mean they purchase somewhere, they are anchored at sea?
Gary Thurlow: Yes, sir, they do. They -- they probably purchase -- purchase most of them in Bristol Bay while they're anchored from three to four or five miles outside of mean low tide. The freezer ships also carry on some operations off of Kodiak Island and in Southeast Alaska. When the freezer ships operate in these areas, they anchor within the three-mile limit. The freezer ships sometimes fish during the Bristol Bay king salmon fishing season. But for the most part, freezer ships are engaged in catching red salmon during the Bristol Bay red salmon fishing season and they fish for the most part in Bristol Bay.
Speaker: (Inaudible) salmon and --
Gary Thurlow: Yes, sir, they are. King salmon or Chinook salmon, Silver salmon or Coho salmon and dog salmon or Chum salmon.
Earl Warren: How do you measure your -- how do you measure your three miles there? Is it along the shore line or is from headland-to-headland from the bay?
Gary Thurlow: Well, I'm assuming for the -- for purpose of this argument that's just along the mean low tide. I didn't think this Court would get into question whether the Bristol Bay or any part of it is an inland bay. So I assume that there would be no inland bays in it, involved here. It is the States' theory that a good part of Bristol Bay is an inland bay and has historically been treated as such. The Ninth Court of Appeals found the end of Bristol Bay to be an inland bay.
Earl Warren: On what?
Gary Thurlow: How's that?
Earl Warren: Is found what --
Gary Thurlow: The upper portion of Bristol Bay to be an inland bay and they refer --
Earl Warren: Not where the ships were?
Gary Thurlow: Well, after reviewing the record, it appears that the great bulk of the operations of these ships occurs within that area which the Ninth Court of Appeals on its first hearing of the case, the hearing before the three-man court, that the great bulk of the operations of these freezer ships do occur within what that -- what that three-man panel called "Inland waters, the State of Alaska."
William J. Brennan, Jr.: (Inaudible)
Gary Thurlow: Yes, it would be. The freezing --
William J. Brennan, Jr.: (Inaudible)
Gary Thurlow: Well --
William J. Brennan, Jr.: (Inaudible) freezer ships operating (Inaudible)
Gary Thurlow: Yes sir, that's right. I -- it is our position that the three-man panel of the Ninth Court of Appeals was correct when they heard the case. Their decision was later withdrawn, but the three-man panel said that it may be that some of these freezer ships freeze their fish outside of the taxing jurisdiction of Alaska. However, they catch their fish within Alaska's waters. Their catcher boats do.
William J. Brennan, Jr.: (Inaudible)
Gary Thurlow: By use of the catcher boats.
William J. Brennan, Jr.: (Inaudible)
Gary Thurlow: Yes, sir.
William J. Brennan, Jr.: (Inaudible)
Gary Thurlow: No, it's best to approach it on --
William J. Brennan, Jr.: (Inaudible) they were anchored outside?
Gary Thurlow: Yes, sir.
Earl Warren: I see.
Gary Thurlow: It's much better to approach it in from that angle I think. In 1949, the Alaska Legislature drastically modified the tax structure as an effective -- fish processors. The first such act of the 1949 Legislature was Chapter 82, Sessions Laws of Alaska, 1949. Under this Act, canneries were taxed at the rate of 6% on the salmon which they obtained for canning. Canneries were taxed at 1% on the salmon they obtained and diverted to purposes other than canning. Later that same session -- and also crab canneries, herring canneries and clam canneries were taxed during this act at a rate varying from 1% to 2 %. Later that same session in 1949, the Legislature passed Chapter 97. Under this Act, cold storages were taxed. Cold storages were taxed at 1% of the value of the fisheries products which they obtained for freezing, solving or processing through any other method. In 1951, the tax on canneries was raised to 6%. Shortly thereafter, the Chapter 97, the tax on cold storage -- storages was amended, so as to tax freezer ships and floating cold storages at the rate of 4% of the value of the fisheries products which they obtained for freezing. The -- most of the freezer ship companies refuse to pay their tax on a theory that the tax was unlawful. In 1950, territory of Alaska brought suit against them, and 1956, the District Court for the territory of Alaska ruled in the suit. It ruled that the taxable event in this case was the taking of the fish, the catching of the fish.
William O. Douglas: Well, as of -- as of now, of course that is a -- what we call a state -- state law in question, the incidence of the bay.
Gary Thurlow: Yes, I believe so. It's a local activity.
William O. Douglas: Has the -- has the state courts of Alaska -- since Alaska became a State passed on this?
Gary Thurlow: No, they haven't. No, sir.
Felix Frankfurter: Well, is it exclusively a state question?
Gary Thurlow: Well --
Felix Frankfurter: And the State by saying it's a local affair and they give it a non-commerce significance by saying it's a local activity. I thought all the cases turn on that very controversy.
Gary Thurlow: Well --
Felix Frankfurter: Whether you can or cannot isolate it separately.
William O. Douglas: Well you'd at least -- you'd at least start with the state adjudication as to what the tax was on and we don't have that here at all, do we?
Gary Thurlow: No sir, you don't.
William O. Douglas: We don't know what the -- how the state courts would construe this?
Gary Thurlow: No, you have no idea.
Felix Frankfurter: You mean we don't know that this was a tax on the -- on the catching of fish?
Gary Thurlow: You certainly don't have the opinion of any state court on this question.
Felix Frankfurter: Well, this -- is that a controversy?
William O. Douglas: Yes.
Gary Thurlow: Yes, it is.
William O. Douglas: Because the -- your Court of -- our Court of Appeals in this case changed its mind in -- on the incidence, didn't they?
Gary Thurlow: That's right. This -- this case has been heard four times now. This is the fourth time. On -- on the three times, it's already been heard. The Court found the taxable event to be in a different place each time.
William J. Brennan, Jr.: (Inaudible) whether it would be taxable.
Gary Thurlow: Well --
William O. Douglas: The latest one is processing, isn't it?
Gary Thurlow: No -- yes, it is, processing by freezing.
William O. Douglas: Isolating. processing by freezing.
Gary Thurlow: The --
William J. Brennan, Jr.: (Inaudible)
Gary Thurlow: That's right.
William J. Brennan, Jr.: (Inaudible)
Gary Thurlow: It is.
William J. Brennan, Jr.: In the freezer ships and the freezer ships are anchored outside (Inaudible) --
Gary Thurlow: Yes sir, that's right.
William J. Brennan, Jr.: (Inaudible)
Gary Thurlow: The -- the District Court said the taxable event was the catching of the fish and the Ninth Court of Appeals when it first heard this case --
William J. Brennan, Jr.: And the court of panel.
Gary Thurlow: Yes, the court of panel said that the tax was on the freezer ship line of business carried on within Alaska's taxing jurisdiction and that's what the State is arguing here today.
Charles E. Whittaker: That state is arguing today, what kind?
Gary Thurlow: That freezer ships subject themselves to Alaska taxation by doing business within Alaska and that the Alaska freezer ship tax was designed to reach all freezer ship activities which are carried on within Alaska's taxing jurisdiction.
Charles E. Whittaker: And they are doing business within Alaska, does it mean that this small catching boats that come to shore operated by themselves as well as by contractors?
Gary Thurlow: No, only those operated by themselves. I cannot see how the State of Alaska could reach fish which are caught by independent fisherman and which are sold to freezer ships outside of Alaska's taxing -- taxing jurisdiction.
William J. Brennan, Jr.: Well, you -- you tax (Inaudible)
Gary Thurlow: We have a statute passed by the 1959 Legislature which purports to do that.
Felix Frankfurter: What is the position of the State before this Court as to the -- besides incidence of the tax? What, in the view of the State is the tax for?
Gary Thurlow: That the tax is to cover the business activities of freezer ships in Alaska, wherever they occur. And I think that if you --
Felix Frankfurter: Yes, I understand. That's the legal theory. But what --
Gary Thurlow: Yes.
Felix Frankfurter: -- what so-called what is the taxable event in your view? Is it the freezing or the catching or is it the fact that they are doing something within the territorial waters of Alaska?
Gary Thurlow: That fact that they are doing something.
Felix Frankfurter: Anything?
Gary Thurlow: Anything.
William J. Brennan, Jr.: Well, what is (Inaudible)
Gary Thurlow: Well, they are certainly catching fish by means of their catcher boats and after reviewing this record again, it appears to me that most of their freezing of fish also take place within what the Ninth Court of Appeals once called an inland bay of Alaska, what -- what they said on their first hearing. Okay.
William J. Brennan, Jr.: Suppose that the (Inaudible) freezer ship itself.
Gary Thurlow: Yes, it is.
William J. Brennan, Jr.: I thought they were anchored outside the (Inaudible)
Gary Thurlow: Well, in some cases, they certainly would be done outside of the waters of Alaska. I -- I thought that probably this Court wished to assume that no part of Bristol Bay was an inland bay of Alaska. And if this is so, virtually all or all of the freezing of fish done by these freezer ships is done outside the three-mile limit other than the fish caught right near Kodiak and caught in Southeast Alaska.
Felix Frankfurter: Let me ask you. Is it relevant to the determination of the case before the Court whether Bristol Bay is or is not within the territory of water?
Gary Thurlow: It is not relevant.
Felix Frankfurter: So that we can operate on the assumption, not because we cannot create on the assumption that maybe falls geographically, but because it's irrelevant to the issue of the case.
Gary Thurlow: It's irrelevant to the issue of the case.
Felix Frankfurter: Now, is that an agree -- is that an agreement? Is that an agreement in both sides?
Gary Thurlow: I don't know, but that's the only way I can analyze the case.
Felix Frankfurter: I mean, that's your view.
Gary Thurlow: Yes.
Felix Frankfurter: This isn't -- this isn't done, except the thing in the case, we may go on that basis. We'll have to hear what the appellees say.
Gary Thurlow: Yes, sir.
Felix Frankfurter: Alright.
Earl Warren: In other words, would you say that if the freezer ships was inside these territorial waters of Alaska that the legal issue would be exactly the same?
Gary Thurlow: I believe it would be.
Earl Warren: It would be.
Gary Thurlow: Yes sir.
Felix Frankfurter: From your point of view.
Gary Thurlow: From our point of view.
Felix Frankfurter: From your point of view.
Gary Thurlow: Yes, sir.
Felix Frankfurter: Because then it would be all a local activity.
Gary Thurlow: Yes.
Felix Frankfurter: So that there'd be no problem of touches interstate commerce except insofar as an activity with interstate may be a necessary part of the process of interstate commerce.
Gary Thurlow: I believe that that would be our position.
William J. Brennan, Jr.: (Inaudible)
Felix Frankfurter: He doesn't.
Gary Thurlow: He doesn't.
William J. Brennan, Jr.: He does not?
Gary Thurlow: No. I'm sure my adversary will concede that the part of the operations of these freezer ships occurred entirely within territorial waters.
William J. Brennan, Jr.: (Inaudible) because everything you've done (Inaudible) territorial water. I wonder if he would challenge the (Inaudible)
Felix Frankfurter: He wouldn't.
Gary Thurlow: Certainly, he certainly would.
William J. Brennan, Jr.: (Inaudible)
Gary Thurlow: Oh, surely.
Felix Frankfurter: Because they're intended for commerce and --
Gary Thurlow: That's right.
Felix Frankfurter: -- and that's intended to local consumption. This is just the beginning of a chain that stretches outside of Alaska.
Gary Thurlow: That is exactly his position.
Felix Frankfurter: Now, which will be good enough, it would help me greatly if you would state without arguing to begin with it in all event. If you would state the basis, the facts which you conceive to be that -- what are the findings or fact in this equity? Have you got any findings or fact?
Gary Thurlow: None that I know of.
Felix Frankfurter: Alright. Now, would you be good enough to state the fact, the assumptions on the basis of which it was then tend for certain legal propositions?
Gary Thurlow: I would say that the predominant feature of a freezer ship operation is the catching of fish and that the loading and freezing of this fish onboard to freezer ship is an incidental thing and it's -- it's a necessary thing which inevitably results from the catching of the fish and therefore, it is local in nature.
Felix Frankfurter: Because the catching is all local, ergo, it's a local activity just sell it from the whatever commerce consequences there may be, being a local activity so (Inaudible) the state may impose its tax. That's your argument.
Gary Thurlow: Yes sir.
Felix Frankfurter: That's your position.
William O. Douglas: Like digging coal.
Gary Thurlow: Yes sir, like digging coal.
William O. Douglas: Has any court below agreed with your construction as to the incidence of this tax as a matter of Alaska law?
Gary Thurlow: Well, it appears that when we fist argued the tax, we urge that the --that the tax will -- was actually the taking of the fish but --
William O. Douglas: Well, that's what the District Court ruled.
Gary Thurlow: That's what the District Court ruled. Now, that the Ninth -- now that this three-man panel, the Ninth Court of Appeals has ruled on this question, I personally think that they're unquestionably right and that is that the tax is on any activities they carry on within Alaska's taxing jurisdiction. I think -- and that is a position the State is urging here today.
William O. Douglas: That's a -- that's a first position of the Court of Appeals.
Gary Thurlow: Yes.
William O. Douglas: Not their latest position.
Gary Thurlow: No, their -- their fist position.
William O. Douglas: Yes.
Felix Frankfurter: This is quite irrelevant to this case that the fact that nine judges of the Court of Appeals all agreed to the conclusion which you attack not only as to -- as to law but as to the starting point, the very starting point. This may be a good reason that(Inaudible) to say this like an Alaskan should sit on the Court of Appeals.
Gary Thurlow: I won't comment on that. [Laughter] The Ninth Court of Appeals granted a rehearing at the respondent's request and they simply found that the tax was on the freezing of the fish and that this is an integral part of interstate commerce. Their theory apparently was that the loading of the fish is similar to stevedoring that the rule of Joseph versus Carter & Weekes would apply to the loading of the fish and that since the fish are there in the (Inaudible) of interstate commerce when they are loaded that the activities which occurs subsequent to that and freezing does occur subsequent to the loading would also be interstate commerce. Now, the respondent in his brief where he discusses his discrimination argument says the facts are not in dispute and the applicable legal principles are not subject to dispute. I think what he means is the Court probably won't be troubled with tangled under brash of cases here. I think the problem is in giving the proper weight to the facts and then properly characterizing the nature of freezer ship operation. The Ninth Court of Appeals saw a freezer ship operation apparently as a freighter that calls from port to port that -- that goes from Seattle and goes to Alaska and loads up with the cargo and then returns to Seattle. But by categorizing freezer ship operation in that manner, they ignored the most significant aspect of a freezer ship operation which is the fact that its very reason for existence is to catch fish by means of its catcher boats and because it does catch fish, it necessarily follows it has to preserve the fish as they are caught.
Charles E. Whittaker: Is there some basis in your taxing act to contend that the tax is on that act of catching the fish?
Gary Thurlow: No, I don't know. Well, yes. You mean -- yes, I think so. The --
Charles E. Whittaker: Well, it would seem to me there'll be no doubt that Alaska might have power to impose a tax upon the privilege of taking fish in Alaska.
Gary Thurlow: Sure.
Charles E. Whittaker: Is this such a tax?
Gary Thurlow: Yes, sir, it is, because the subject of the tax is clearly set forth in the statute and the subject of the tax is set -- set forth separately from the major and the subject of the tax is on the following industries operating in connection with Alaska's fishing resources. I'll -- I'll read it to you because it's on page four of our brief. The subject of the tax is this, "Any person, firm or corporation prosecuting or attempting to prosecute any of the following lines of business in connection with Alaska's commercial fisheries resources with -- in connection with Alaska's commercial fisheries shall first apply for and obtain on the conditions here -- here and after set forth a license so to do on the basis of the following license tax -- taxes which are hereby levied." And then it says, "Freezer ships and other floating cold storages what is being taxed --
Charles E. Whittaker: Now you're -- you're jotting down to subparagraph (b), are you?
Gary Thurlow: Yes. Yes, sir, subparagraph (b).
Charles E. Whittaker: Alright.
Gary Thurlow: So we can see that the tax --
Charles E. Whittaker: Well now, that says freezer ships and other floating cold storages, "an annual license tax equal to 4% of the value of the raw fish brought or otherwise obtained for processing through freezing" period.
Gary Thurlow: Yes, sir.
Charles E. Whittaker: Well, does that suggest to you that the tax is upon obtaining fish for processing through freezing?
Gary Thurlow: No, it doesn't. Because to me, everything that falls in that column is a measure of the tax. It says "equal to." It doesn't say the tax is on the freezing. It says the -- the tax will be equal to.
Charles E. Whittaker: 4% of the value of the fish bought or otherwise obtained for processing through freezing.
Gary Thurlow: Yes, sir.
Charles E. Whittaker: You think that is sufficient to include or to be a tax on the privilege of taking fish in Alaska, do you? Is that -- is that the section you rely on?
Gary Thurlow: I -- I certainly don't rely on the measure of the tax to find the scope of the tax.
Charles E. Whittaker: No.
Gary Thurlow: And that the part that you just read I think it's clearly the measure of the tax.
Charles E. Whittaker: Which is the rate, is that it?
Gary Thurlow: It fixes the rate.
Charles E. Whittaker: But not on the subject.
William J. Brennan, Jr.: (Inaudible)
Gary Thurlow: Yes, sir.
William J. Brennan, Jr.: (Inaudible)
Gary Thurlow: Yes, sir.
William J. Brennan, Jr.: It -- it holds out the provision on that (Inaudible)
Gary Thurlow: Yes, sir. Every business license tax I think has a taxable event in a measure and generally, they're different things and they're different things here I believe.
Charles E. Whittaker: The statute now then, if that -- if this applies to identify only the line of business then what statute would we look to, to find the subject matter upon which the tax is imposed or the incidence of the tax?
Gary Thurlow: You'd look at the language which precedes the column in subsection (b).
Charles E. Whittaker: Freezer ships and other floating cold storages?
Gary Thurlow: Yes, that's the line of business which is being taxed.
Charles E. Whittaker: A tax for what? Not the existence.
Gary Thurlow: No, for engaging in the freezer ship line of business.
William O. Douglas: You pick up the incidence from the first sentence of Section 1.
Gary Thurlow: Yes, sir, I do.
William O. Douglas: Prosecuting or attempting to prosecute any of the following lines of business.
Gary Thurlow: Yes, sir.
Charles E. Whittaker: In Alaska. Now then, is there any language here that imposes a tax on the privilege of taking fish? I must be dense, I don't understand it.
Gary Thurlow: Well, a freezer ship is a -- is a type of business which does many things. And one of the things that freezer ship business exists for is to catch fish. It doesn't just engage in one activity, it engages in a number of activities and the catching of fish is one of the activities, which is an integral part of a freezer ship line of business.
William O. Douglas: It catches, freezes and transports?
Gary Thurlow: Yes, sir. It moves the fish back and forth on the ship for better storage.
John M. Harlan II: Do you have any tax that would reach a ship that was not a freezer ship that was doing the same thing, lying offshore here and simply acting as the mother ship or (Voice Overlap) of the day?
Gary Thurlow: Cannery ships are taxed under the cannery tax and floating cold storages are taxed. These ships do no use catcher boats.
Earl Warren: How about the canneries on the shore that they're the -- the -- or do you have any freezing plants on the shore?
Gary Thurlow: Yes, sir, we have.
Earl Warren: Are they taxed?
Gary Thurlow: They're taxed at a lesser rate.
Earl Warren: Is there any question of discrimination in the amount of taxes between the various types?
Gary Thurlow: Yes, sir, there is.
Earl Warren: There is a question of discrimination.
Gary Thurlow: I think that if stevedoring is a predominant characteristic of these freezer ships, it's a very peculiar type of stevedoring, because before the stevedoring can be done, the stevedoring company has to go out and catch the fish. And if it's shipping, it's a very peculiar type of shipping because before the shipping can be done, the shipper has to catch the fish and hold the fish for the remainder of the fishing season. The -- actually, the freezing and the loading is keen directly to the catching of the fish. I think that these freezer ships could successfully operate without ever leaving the Alaska waters or the vicinity of Alaska. They catch and freeze salmon for the duration of the fishing season and then sell the frozen salmon to land based canneries or to ships of other -- of say a Japanese freighter, which is equipped to preserve, freeze, salt or can fish. So, this could be an entirely intrastate operation. I think that the leading case is all Oliver Iron Company versus Lord. Here again, you have a Business License Act, an Occupation Act, a local privilege tax. And here, the measure of the tax was 6% of the value of iron ore produced. The iron ore apparently was loaded on small railway cars by the same act by which it was produced. In other words, the steam shovel or dragline, this isn't said outright in the case but I think it's -- this is only surely the case. The steam shovel or dragline scoops up the iron ore, dumps it in the railway cars and then the railway cars are assembled in -- into trains and the trains are loaded onto barges and the barges are then sent to other States where the iron ore is unloaded. Now, here you have a relatively smooth even flow of a commodity from the time it severed from the earth to the time it reaches a market in another State. In a freezer ship case, you again have a -- a flow of a commodity from the time its caught in -- in Alaska waters until the time that it reaches Seattle, but it's not an even flow. It's interrupted by the fishing season. The freezer ships stay in Alaska for the remainder of the fishing season and not until then do they start moving towards Seattle. So -- so I think that the freezer ship case is on a better set of facts in the Oliver Iron case, Oliver Iron Company case.
Felix Frankfurter: But wouldn't you agree that -- I'm not saying there's a legal difference, either all catching cases, nice discriminations must be made. But wouldn't you say extracting ore from mine is a more separate or separable, physically different as a transaction or is more of a break. The ores to be gone out, it has to be -- process things gone through it, and thus considerable doing before it gets down to train on concept that -- that there's a sale for the ore. There might be glutton market, etcetera, etcetera. It's very different situation.
Gary Thurlow: It's -- it's more --
Felix Frankfurter: Physically event -- as a matter of events of the difference. I'm not saying that therefore it isn't relevant. You have the right to -- to go on it. All I'm saying is that there are those differences, would you agree?
Gary Thurlow: Mining of iron ores are a more elaborate activity than --
Felix Frankfurter: Maybe it's more separable and it's more of a break.
William O. Douglas: Well, I suppose that the respondent would answer you at this point that -- that by your own argument, this is not a tax on taking a fish.
Gary Thurlow: I presume he will argue that.
William O. Douglas: Therefore, the -- Oliver Iron point.
Gary Thurlow: I think Oliver Iron Company would still and be on point because in Oliver Iron Company, if the ore was loaded on these cars and what was the purpose of putting them on the cars, the ores is -- and to get them to another State?
Felix Frankfurter: But they tax the mining.
Gary Thurlow: And isn't that part --
Felix Frankfurter: That's the extraction.
Gary Thurlow: Well, I think that this was an occupation tax and the occupation was mining and the loading of these railway cars is mining. I think it's part of the mining operation.
Felix Frankfurter: Once they get out of the cart, they are -- they started to go, don't they? I mean they're on the way that it (Inaudible)
Gary Thurlow: Yes, sir.
Earl Warren: Do you tax your local fishermen who -- who fish for salmon in the same way as these small boats do and then -- and then come in to take it into Alaska?
Gary Thurlow: Fishermen.
Earl Warren: Do you tax them on -- in -- in the same way that you -- that you tax ships?
Gary Thurlow: Fishing boats are not taxed to such that they were at this time the fishermen were taxed.
Earl Warren: Well, no -- do you -- do you tax the fish that they catch?
Gary Thurlow: Oh surely, you tax them at a heavier rate than the fish caught by the freezer ships.
Earl Warren: They are.
Gary Thurlow: Yes, sir.
Felix Frankfurter: Can you -- just as a matter of interest, at least approximately indicate what part of the revenue of the State is derived from -- immediately derived from various aspects of the fishing industry, like the catching, the loading, the processing, etcetera.
Gary Thurlow: Of all the fishing industry or just the freezer ships?
Felix Frankfurter: No, no, the whole -- what part of the revenue of Alaska is drawn approximately?
Gary Thurlow: I would --
Felix Frankfurter: What part of the revenue which Alaska assesses or levies is imposed on aspect of the fishing industry as such that might be called the -- within the fishing industry like catching, processing, loading, et cetera.
Gary Thurlow: I would say less than 20% because --
Felix Frankfurter: Less than 20.
Gary Thurlow: Less than 20, because Alaska relies largely on the Net Income Tax Act -- on its Net Income Tax Act and on its Business Licence Act.
Felix Frankfurter: All, all of this.
Gary Thurlow: Yes. And when I say the Business License Tax Act, that means excluding the taxes on fish process. So I'd say --
Felix Frankfurter: What I meant is including -- including corporation taxes by fishing concerns. How much is derived from the fishing industry, just (Inaudible)
Gary Thurlow: Well, I'd say close to 20%.
Felix Frankfurter: Not more than that.
Gary Thurlow: Not more than that.
William J. Brennan, Jr.: (Inaudible)
Gary Thurlow: Well, Alaska's economy is sort of peculiar because it depends so heavily on federal spending for military purposes. It's -- it's very heavily dependent on -- on that type -- on construction, military construction.
Earl Warren: Mr. Thurlow, may I ask you this question? If the -- if the respondents are successful in avoiding this tax, will they be subject to any tax either for their appraising or for their catching of fish in Alaska?
Gary Thurlow: No taxes, whatsoever.
Earl Warren: No taxes, whatsoever. This would -- if they prevail, it will be absolutely free from any -- any taxes either on the gathering of the fish or the freezing of them.
Gary Thurlow: I better modify that.I think that at the time these taxes in effect, they had to buy fishing licenses either for their fishermen or possibly, for their boats. The license fee would be nominal. I think it's a regulatory act.
Earl Warren: Yes, yes.
Felix Frankfurter: They were -- they're not subject to -- to a tax -- to an apportioned tax or activities on their gross receipt or gross income for activities that geographically play their part within territorial waters?
Gary Thurlow: No, sir. There is no provision in any Alaska statute to tax them on that basis.
Felix Frankfurter: No, but this -- this decision, the Court of Appeals' decision doesn't rule that question out, does it?
Gary Thurlow: Didn't touch it, so I guess it didn't rule it out.
Felix Frankfurter: But that's in -- that's before the Court.
Gary Thurlow: No. It wasn't before the Court, it was an --
Felix Frankfurter: Your answer to the Chief Justice means -- that mean that on the existing -- existing legislature, existing tax measures wouldn't have anything.
Gary Thurlow: Wouldn't have --
Felix Frankfurter: You didn't mean to imply the Constitution that nothing could be it.
Gary Thurlow: No, no.
Felix Frankfurter: Alright.
Earl Warren: Just that it isn't.
Felix Frankfurter: It isn't, yes.
Gary Thurlow: It isn't.
Hugo L. Black: What has happened in connection with the collection of the tax since this case began?
Gary Thurlow: The State --
Hugo L. Black: Hasn't been going?
Gary Thurlow: The State hasn't been collecting the tax since 1955 and it didn't collect much tax, much on a way of taxes before that date. There is -- there is no injunction against the State.
Felix Frankfurter: You mean the State is just holding its hand?
Gary Thurlow: That State has been holding its hands since 1955.
Hugo L. Black: How did that happen?
Gary Thurlow: I don't know. That was before my time. [Laughter]
Potter Stewart: Before it was a state too.
Earl Warren: It wasn't a state, yeah.
Gary Thurlow: Before Alaska was a state.
Hugo L. Black: But it was a territory.
Gary Thurlow: It was a territory. I don't -- I don't know why -- why that the -- that the territory didn't pursue these taxes act of those years. I know that the territory certainly will pursue these taxes. If the Court rules in the State's favor and I know that we have kept some track of the freezer ship operations for the last five years. We are in a position to build them and we have built them for the last two years. Well, I've always thought that the most important problem here --
Potter Stewart: The statute is still on the books of the State of Alaska?
Gary Thurlow: Yes, sir.
Potter Stewart: This statute which was originally a territorial statute.
Gary Thurlow: Yes, sir.
Potter Stewart: The same with identical statute is.
Gary Thurlow: Exactly -- exactly the same.
William J. Brennan, Jr.: And did I understand you say it was the last two years at least you'd sent bills to those -- the operators?
Gary Thurlow: Yes, sir.
William J. Brennan, Jr.: And have them pay?
Gary Thurlow: No, sir. I've always thought that the most difficult problem in this case was the question of -- of discrimination. Alaska, like most States, taxes its businesses with -- under a Business License Act. It's a -- it's a local privilege tax. And the -- most businesses in -- in Alaska are taxed according to their gross receipts. They are taxed $25 for their -- for the first 20,000, 1/4, 1% for their -- 1/2% to 1% for the gross receipts up to 100,000 and 1/4% to 1% for gross receipts above that amount. Banks are also taxed under a Business License Act but the measure of that tax is net income. Fish processors are taxed at 4% of the value of -- at -- or taxed according to the value of fishery products which they obtain, which they handle. This works out very well for the State of Alaska because it results in virtually every fish which is caught contributing to Alaska tax revenues and contributing to the cost of -- of meeting the cost -- conserving Alaska's fishery resources and maintaining Alaska's fishery resources. All fish have to be processed, cured, sold and handled in some way within 48 hours after they're caught. Salmon are perishable. And federal law requires that the salmon be handled in some manner. So, by reaching the processor, Alaska has pretty successfully reached all the fish caught in Alaska. That's not entirely true because there is some testimony in the record that during a five today fall seining season, some vessels in Ketchikan will ice down their fish by ice at a cold storage and run their fish to Seattle.
Felix Frankfurter: What is the discrimination problem?
Gary Thurlow: Well, the discrimination problem is this. The respondents claimed that cold storages are taxed at a lower rate than freezer ships. Freezer ships are taxed at 4% of the value of salmon which they obtain. Cold storages are taxed at 1%. On the face of it, this appears to be discrimination, but it isn't because cold storages and freezer ships are not in competition with each other. Cold storages freeze king salmon and silver salmon, their trolled cut salmon, their degutted salmon, their higher quality salmon and their frozen for the fresh fish market. They never go into competition with canned salmon or as far as I know, rarely do. The fish which canneries are after and which freezer ships companies are after are red salmon, pink salmon, and dog salmon. These are especially suitable for canning. They're -- they're caught by seining vessels, they're caught by gill-netters and they're not treated this carefully as the fish which are destined for cold -- for the fresh fish market. Canneries are taxed at 6% and freezer ships are taxed at 4%, so there is discrimination but the discrimination is in -- is in favor of interstate commerce and it's against Alaska canneries. And this is true I think even if you include the Seattle business license tax and the Washington business and occupation tax which the Seattle canneries pay because of the fish which have been caught in Alaska by their freezer ships.
Felix Frankfurter: I like your candor and things -- you think this is a difficult part of the problem.
Gary Thurlow: It is.
Felix Frankfurter: Would you mind telling me why you think so because four is less than six, is that it?
Gary Thurlow: No. The difficult part has yet to be discussed and that is this. Cold storage operators do freeze some fish for canneries. This is an isolated, unusual incidental thing. There isn't much evidence in the record on it. There's only about seven or eight pages in this entire record on this. Three witnesses testified on this problem. Pinkerton, manager of the Ketchikan Cold Storage, Wallis George, manager of the Juneau Cold Storage and Tom Park, tax collector for -- a tax collector for the Department of Taxation. Pinkerton had to admit that the freezing of salmon for later canning was a “isolated incidental thing.” Wallis George, the Juneau Cold Storage manager said that in a 27 years, he has been in the cold storage business, he has only canned -- he has only frozen salmon for salmon canneries two or three times, two or three times in 27 years. And Tom Park testified that the freezing of salmon for later canning is an expensive process and it is not readily done. On redirect examination, James Pinkerton said that the freezing of salmon for later canning was a regular occurrence and it happened each year. This was part of the -- this was designed to rehabilitate his testimony. Now, what Pinkerton was taking about was the canning of small silver salmon which are caught by trollers. Apparently, Pinkerton feels compelled to buy all the fish the trollers bring to him and the trolling season opens shortly before the sailing season. And apparently, he does buy some silver salmon and -- and freeze them and sell them later to the cannery.
Hugo L. Black: May I ask you if -- I think I understand what you are saying in the orange industry, they sell frozen orange juice and they sell canned orange juice, and here you say they have some salmon that they sell frozen and is freshly on high price, some other is the can, is that -- are those two situations analogies?
Gary Thurlow: Yes, those two situations are analogies.
Felix Frankfurter: Let's see if I understand the course of your expositions. If we had no testimony at all, merely have the legislative in that 4% for freezers and 6% for canneries, is that right?
Gary Thurlow: Yes sir.
Felix Frankfurter: If we just have that enactment, one couldn't possible be I just say that the fact that four less than six that six is more than four shows discrimination against the canned because we can't think judicial notice or what the fact of the fishing industry in the relation of that problem. Are you suggesting that by testimony, it was sought to be established that in fact, that surface discrimination -- that surface justifiably discrimination made by the Legislature is overturned as a -- as a -- is (Inaudible) which earns and a showing was made. As a matter of fact, there is no differentiation. In fact, if you can go to a levied -- so, 6% and against those who have to pay only 4%, is that right?
Gary Thurlow: What -- I think that's what the fact show.
Felix Frankfurter: Well, the -- if the fact show that, isn't really a bad way, aren't you?
Gary Thurlow: No, I misunderstood you.
Felix Frankfurter: That's what I thought when you said that's the fact show. I say that the facts, if the testimony goes to the proposition that in fact while without any elucidation, the Legislature may well have reasons be imposing 6% on canneries against 4% on freezers. The testimony shows that there's no basis in the actualities of life with that discrimination -- with that distinction, but you say that isn't what the testimony show?
Gary Thurlow: No, there was no testimony to show the reason for the distinction between the 4% tax and 6% tax at all.
Felix Frankfurter: No, but the -- the testimony which is about -- which there's controversy is whether there -- it is shown that there is no difference between the two kinds of enterprises.
Gary Thurlow: There was some testimony with that effect, but the -- the thing that the respondents was interested in urging was the differ -- difference between the 4% tax on freezer ships which freeze fish.
Felix Frankfurter: Yes.
Gary Thurlow: And the 1% tax on cold storages which freeze fish. They -- they wanted to show that the tax on freezer ships was four times as great as a tax on both storages.
Felix Frankfurter: You are talking until now about four and six, not four and one.
Gary Thurlow: Yes, and these are the relevant taxes because freezer ships are in competition with canneries. They are after the same type of fish and the fish which they obtain will later be canned. And the cold storage operations are -- are totally irrelevant to this problem even though a cold storages have on occasion frozen some fish for the canneries.
Felix Frankfurter: I think there are no attached -- there are no attached here on the basis -- on the claim of discrimination as between four and six?
Gary Thurlow: No.
Felix Frankfurter: Because there's no claim here.
Gary Thurlow: No.
Felix Frankfurter: No, alright. (Voice Overlap)
William J. Brennan, Jr.: That's between four and one.
Gary Thurlow: It's between four and one.
Felix Frankfurter: Well, I -- I misunderstood why all this is relevant as to whether this is episodic or not between the four and the six, if that's not challenged.
Gary Thurlow: It's not challenged.
Felix Frankfurter: Alright, then why bother?
Gary Thurlow: Pinkerton said that this was a regular occurrent each year but he's referring to these cohos, the silver salmon which he did feel obliged to buy controllers that came to his cold storage plant. George was in the same business in Juneau, never had occasion ever to mention these silver salmon. And -- so I think that this is truly an isolated, incidental thing as Pinkerton's -- Pinkerton said and it is so -- such an isolated, incidental thing. I don't think that this is a factor which you'd expect the Alaska Legislature to take into consideration when it framed a series of taxes designed to fairly tax all fish processors in Alaska. Now, there is the problem of the salmon caught in Alaska later be in taxed in Washington.
Earl Warren: We'll recess now Mr --