Warren E. Burger: We'll hear arguments next in Torres against Puerto Rico. I think we will wait a moment for the audience to clear. They seem to have a lot of interest in broadcasting today. Mr. Remcho, I think you may now proceed whenever you are ready.
Joseph Remcho: Mr. Chief Justice, and may it please the Court. This case presents the question whether the Commonwealth of Puerto Rico may constitutionally enact and enforce a statute authorizing its police to conduct indiscriminate warrantless searches of the luggage, packages, bundles and bags of persons arriving in Puerto Rico from the mainland United States.
Warren E. Burger: Now in that you include I take it the power to examine everything that comes in, just the way customs agents do at Mexican border or anywhere else, is that what you mean to embrace by indiscriminate?
Joseph Remcho: What I mean to embrace by indiscriminate is as the Supreme Court of Puerto Rico found, the statute Public Law 22 authorizes the individual police officer, not a customs official, but the individual police officer.
Warren E. Burger: Does it make any difference whether it is a police officer or a customs official or what name you give the person?
Joseph Remcho: Well, I think it makes a substantial difference. That goes to the whole question of whether Puerto Rico may in the first place, setup any kind of a customs search.
Warren E. Burger: That's what I am trying to get at.
Joseph Remcho: So let me get to that question then directly and take up the others later. The Commonwealth of Puerto Rico was created by the Commonwealth Compact, but nothing in that Compact reserved to Puerto Rico the right in any fashion to setup its own border between the United States and Puerto Rico. In fact, with respect to customs, 19 US Code Section 1202(a) specifically includes Puerto Rico within United States customs territory. The Commonwealth Compact itself and the additional Puerto Rico Federal Relations Act, includes a carefully considered set of regulations and a compact between the United States Congress and the Commonwealth of Puerto Rico with respect to how those two parties will relate to each other and there is nothing in that compact, which I find which specifically or implicitly authorizes Puerto Rico to setup any kind of a border between itself and the United States.
Warren E. Burger: You are limiting that of course to travelers from the United States, aren't you?
Joseph Remcho: Well, that is great, that is what the statute says, but that is what a border is all about; people coming from one place to the other regardless of whether they are residents of Puerto Rico or the United States mainland. The Commonwealth has taken the position with respect to the border not that they have the power or have indeed created anything like an international border. The position they took below at least was that they had the power to create a functional equivalent of a border. And I think that misconstrues this Court's cases with respect to what a functional equivalent of a border is. As the Court held in Almeida-Sanchez, the functional equivalent of a border is basically the same thing as a border only for practical necessary reasons that border has been moved. So for example, St. Louis is the functional equivalent of the United States border for a person arriving for the first time in United States and the confluence of two or three roads right near the Mexican-United States border is the functional equivalent of the border and that is the only practical place where US customs officials can conduct their duties. The defect here is in going back to your initial question is that the border search cases, which allowed even certain exceptions, which setup the functional equivalent system and allowed certain exceptions to normal probable cause, excuse me, to normal search and stop procedures, where search is conducted by customs officials and persons authorized to do that, and that by its very nature, limited the type of the search.
Thurgood Marshall: Couldn't the United States put policemen on the border between Mexico and the United States?
Joseph Remcho: Absolutely.
Thurgood Marshall: As such, there is no magic in the word customs, is there?
Joseph Remcho: There is no magic in the word customs. You can clearly put one there if there is in fact an international border, but I think the --
Thurgood Marshall: There is and I am talking about the Mexican border right now.
Joseph Remcho: Absolutely, you can put –-
Thurgood Marshall: They are customs agents. Could they change their title to policemen?
Joseph Remcho: Absolutely.
Thurgood Marshall: And do the same thing?
Joseph Remcho: Absolutely. But the analogy I think as to when you can put a policeman there and when you put someone else there, applies more to what is sometimes used as inspection searches that is where State of California may setup an inspection point for pest and plant material coming in from Arizona. In a situation like that, clearly they can't setup and have never tried to setup police officers to search people coming from Arizona to California, but they have had a very limited scope of authority covered by regulatory discretion for health officials to examine matter coming in. And so, there is a distinction in that thing between a police officer and a customs type official.
Hugo L. Black: Let me ask something about fact here. Is the appellant a United States citizen?
Joseph Remcho: He is a United States citizen, I am not sure if the record reflects that fact. In fact, it does not.
Hugo L. Black: Where does he reside?
Joseph Remcho: He resides in the State of Florida.
William H. Rehnquist: Mr. Remcho, you are arguing the Fourth Amendment here I take it. Does the Fourth Amendment plane out so to speak limit the authority of the Puerto Rican legislature?
Joseph Remcho: The Fourth Amendment in my view clearly limits the authority of the Puerto Rican legislature, that is correct, and I would say in any one of the four rationale that we set forth in our brief.
William H. Rehnquist: Either because it is analogous to a state and the Fourth Amendment is incorporated by the Fourteenth?
Joseph Remcho: No. I think Mr. Justice Rehnquist, I was persuaded by your dissent in Otero that in passing the Thirteenth and Fourteenth amendments, clearly distinction was made between a state and something, which is not a state. So, I am not arguing that the Fourteenth Amendment in and off itself carries the Fourth Amendment into Puerto Rico in the traditional incorporation doctrine.
William H. Rehnquist: We are on pretty thin ground, if you are persuaded by my dissent in Otero, since you presumably have eight people versus one person?
Joseph Remcho: Well, I am persuaded only by the point that the Fourteenth Amendment does not apply directly in the same fashion as if Puerto Rico were a state. I am not saying that that is what does it. What I am saying is that what I take it the majority meant in that case was that when Congress pursuant to its territorial power created this compact with the Commonwealth of Puerto Rico and said that all the constitutional provisions not inapplicable will apply, that the Fourth Amendment applies in that manner, and through that way, but I do not -- So that is how it applies as a state. Congress said it will apply as if it were a state. I do not read the opinion to say anything other than it applies just like the Fourteenth Amendment by necessarily it comes directly from it.
William H. Rehnquist: So, and the Fourth Amendment prohibits unreasonable searches?
Joseph Remcho: That is correct.
William H. Rehnquist: Now, I take it in times of emergency, a city or a particular area can declare a curfew that it couldn't declare it other times without violating the Fourth Amendment?
Joseph Remcho: I suppose that would depend very much on the facts of the situation but I concede that is possible at some point.
William H. Rehnquist: So supposing that Puerto Rican legislature here had decided that there was, and I gather from the opinions of the three justices in the minority in the Supreme Court of Puerto Rico that there was a real crime wave and a drug wave in Puerto Rico and that a great deal of it was the result of people coming into Puerto Rico from the United States. Do you think it is wholly beyond reason to think that the Fourth Amendment would permit airport searches of luggages where you do not have homes involved or you can perhaps stop all that traffic in one public area?
Joseph Remcho: I do think it is wholly unreasonable. I think that in the first place, there are absolutely no facts in any offered by the government or in the legislative finding that there is a danger from these guns, which supports anything other than a generalized statement that there is a danger. When I spoke of a curfew, I could see it in a narrow situation when perhaps you know, if there is an earthquake in San Francisco, you can impose a curfew, but to say that you could impose a curfew at any time because of a non-differentiated, generalized concern about the con problem is to just totally ignore the 200 centuries of Fourth Amendment jurisprudence, which you said --
William H. Rehnquist: Two centuries.
Joseph Remcho: Two centuries, excuse me, almost two centuries.
Byron R. White: You won on this issue?
Joseph Remcho: I am sorry.
Byron R. White: You won on this issue, the Puerto Rican Supreme Court agreed with you?
Joseph Remcho: That is correct.
Byron R. White: And as I read the brief of your colleague on the bottom side of this case, he does not dispute that decision now.
Joseph Remcho: I read it the same way.
Byron R. White: And, so there is no issue between you on the Fourth Amendment or on the ability to search or on the border question?
Joseph Remcho: I think that is probably correct. If in fact, this Court accepts the concession of the government below as I hope it will, I think that is correct.
Byron R. White: Oh! Yes, but then he says that, that leaves only the issue, which you want to argue about the failure of the court below to give you relief because of the four-three rule or the majority rule, the "super-majority" rule?
Joseph Remcho: Well, if in fact he has conceded the Fourth Amendment issue, I do not care about the other issue, because that decides this case.
Byron R. White: Well, I know, but I would think you would because there is a judgment outstanding against you.
Joseph Remcho: If this Court --
Potter Stewart: If we agree with you and apparently your colleague about the Fourth Amendment issue, then since we do not have any such "super-majority" rule here, we would simply reverse the judgment, wouldn't we?
Joseph Remcho: That is what I am asking, and I think --
Warren E. Burger: Wouldn't it follow?
Joseph Remcho: Yes, it would, that is what we would ask the Court to do.
Warren E. Burger: We would have to hold that it is unconstitutional to have that "super-majority"?
Byron R. White: Why would we?
Joseph Remcho: Why would you have to hold that it is unconstitutional?
Warren E. Burger: Is there not a judgment outstanding against you now?
Joseph Remcho: That is correct, okay. We are in the same position in this Court, I take it, as if we had lost seven-nothing below. We did not lose seven-nothing below. We lost four-three to below pursuant to that particular Puerto Rico constitutional provision. A judgment was entered against us. We made a timely appeal to this Court. The judgment upheld the validity of the conviction. What we are asking this Court to do is to reverse that conviction; to say that the Fourth Amendment prohibits that search and judgment for the appellant has to be entered.
Byron R. White: You suppose this could be an adequate state ground on direct appeal, but nevertheless not bar federal habeas corpus? Other things are?
Joseph Remcho: I do not think, it was not decided on an adequate -- the judgment entered was against --
Byron R. White: I know it was decided that they – the court below refused to get you relief because a majority of that court did not join in the opinion?
Joseph Remcho: That is correct.
Byron R. White: Which is a characteristic of local law, and if we can redirect another judgment to be entered by that court unless we hold that provision is unconstitutional.
Joseph Remcho: I think you can.
Byron R. White: Perhaps a federal habeas corpus court can order release because in that event, there would be no necessity to declare anything unconstitutional?
Joseph Remcho: I think you can and the reason is this. The government appealed at the time; both two things. We appealed; the government contended at that time and continued to contend until recently that, that Fourth Amendment judgment was wrong. If this Court, which is a final arbitrator of the Fourth Amendment says to the Supreme Court of Puerto Rico, we tell you that that you were right.
Byron R. White: That you were right --
Joseph Remcho: You were right --
Byron R. White: That you were quite right.
Joseph Remcho: Yes, and as soon as we tell the Court that and declare that this statute is unconstitutional, then that Court --
Byron R. White: They have already declared it, but they say we have no power under the Puerto Rican Law to reverse this judgment; we just do not have that power?
Joseph Remcho: I understand that. They do not have the power. If it is they who say that the statute is unconstitutional. If this Court says that the statute is unconstitutional, there is nothing in the Puerto Rico constitution, which prohibits that Court from entering judgment favoring the appellant.
William H. Rehnquist: You say the Akron against Bryant point may well be an adequate state ground, but the decision on the merits of the Fourth Amendment question is not?
Joseph Remcho: No, I am not saying that the Akron versus Bryant may be inadequate state ground at all. What I am saying, I am saying that the decision in Akron is wrong, excuse me, that the decision below upholding that judgment while they thought the statute was not constitutional, is incorrect. I am saying, you do not necessarily have to reach the issue of whether Akron was wrong, because I think you can just go back to the Puerto Rico Supreme Court with a declaration that that statute is unconstitutional and that Court --
Byron R. White: Do you think the rule of the majority rule applies to declarations of unconstitutionality?
Joseph Remcho: That is what the statute -- the constitution provision says that, that particular Court may not hold a statute unconstitutional without that "super-majority". If this Court holds it unconstitutional, that Court can certainly enter judgment in favor of the appellant.
Byron R. White: It does not say that it may not satisfy judgments for reasons of unconstitutionality?
Thurgood Marshall: Couldn't the Court have reversed the judgment in this and not violated the statute?
Joseph Remcho: And not violated Public Law 22?
Thurgood Marshall: Yes.
Joseph Remcho: The Court's specific holding --
Thurgood Marshall: Four-to-three, four-to-three say that this judgment must be reversed?
Joseph Remcho: I think --
Potter Stewart: Without any reference to the Puerto Rico statute?
Joseph Remcho: I think there are two responses to that.
Byron R. White: They did not think so.
Joseph Remcho: First is they did not think so. First is they clearly did not think so, and they are the ones who interpret what that constitution provision means.
Thurgood Marshall: And they are bound to that?
Joseph Remcho: Yes, under this Court's decision in Fornaro, you are bound by the Puerto Rico Supreme Court's interpretation of its own constitutional provision unless that interpretation is inescapably wrong, and it certainly not inescapably wrong. Secondly, I think it would be disingenuous.
Thurgood Marshall: But the thing that really bothers me is Puerto Rico required to give you an appeal [Inaudible]
Joseph Remcho: Yes.
Thurgood Marshall: By what?
Joseph Remcho: By Puerto Rico criminal statutes by Rule 3 of the --
Thurgood Marshall: Not by our constitution?
Joseph Remcho: That is correct, no.
William J. Brennan, Jr.: What case of controversy in this Court, in light of the Puerto Rico's position in this Court, what is the case of controversy over the Fourth Amendment?
Joseph Remcho: The controversy is --
William J. Brennan, Jr.: Over the Fourth Amendment, only over that question?
Joseph Remcho: I would say if the state now concedes that issue, there is no more controversy --
William J. Brennan, Jr.: Incidentally, Puerto Rico is not a state, is it?
Joseph Remcho: It's correct, thank you. There is no more controversy over that then it would be after a court entered judgment, if anyone anywhere along the line gave up on that issue. They have given up on that issue, fine, let us remand it, if they have, let us remand it to Puerto Rican Supreme Court for --
Byron R. White: But they still could not enter the declaration?
William J. Brennan, Jr.: Unless one of dissenters below now joined the four majority.
Byron R. White: We just remand it then for reconsideration in light of this concession; that would not change the result if everybody stays for years and they obey the rule because the rule still forbid them from declaring the statute unconstitutional.
Joseph Remcho: Let me put it differently. If we had --
Warren E. Burger: Let us begin that at 1 o'clock. You may continue counsel.
Joseph Remcho: Mr. Chief Justice, and may it please the Court. I want to make a few comments about what was raised in the – giving before the lunch hour. First this Court is not bound by the concessions of a government. In Sibron versus New York for example, the Kings County prosecutor conceded that, that statute had been violated. And this Court pointed out that concessions by the parties do not relieve it from what it called the obligation to perform a judicial function, where federal constitutional rights in state courts are decided and where this Court is already had the benefit of full briefing and argument on that Fourth Amendment claim, it seems to me that the concession of the government would not bind this Court.
Byron R. White: Well, that might be true when the lower court happen to disagree, but it did not?
Joseph Remcho: Well, the judgment of the lower court is still a contrary.
Byron R. White: The only reason you lost in the lower court was because of the local rule about upsetting a statute?
Joseph Remcho: Well, if Puerto Rico had a rule which say that –-
Byron R. White: Isn't that right, they have agreed with you on the Fourth Amendment?
Joseph Remcho: They did, that is correct.
Potter Stewart: Four–to–two?
Joseph Remcho: Four–to–two, that is right. If Puerto Rico had a rule that there was no appeal allowed at all from a decision by a lower court, we would be -- and the lower court had upheld the statute, this Court would have full authority to decide that statute. The fact that there was no appellate review at least putting aside the question of whether it is required, at least would not be considered in independent state ground to uphold the judgment of the lower court. And what is happened is that the Puerto Rico Supreme Court has taken Article V, Section 4 and said that renders it powerless in a sense to decide this appeal. And if that is true, it is no different then if we directly here from the judgment of the Superior Court, which is a judgment in question.
Byron R. White: But it has decided the appeal, it is affirmed that your client is, one of my colleagues pointed out before, has a judgment of conviction outstanding against him, so that however, whatever the voting rules are down there in San Juan, you lost?
Joseph Remcho: That is right we lost, but we can hardly be in a worst position than if we had no right to appeal at all. I agree we lost, but that court in affirming the judgment, we are saying no more than it was not going to rule on that appeal, even though it believed -- the majority believed that the statute was unconstitutional.
William H. Rehnquist: Did it not rule on the appeal?
Joseph Remcho: It affirmed the judgment.
William H. Rehnquist: Yeah.
Joseph Remcho: Okay, but on the grounds it was paroles to do otherwise and that is no different, than if there were no appeal available at all.
Warren E. Burger: Well, is that quite an accurate description of that. If we say that the local rule of what you have called I think the "super-majority" is a valid rule, does that not end the case?
Joseph Remcho: No, it does not because if that is a valid rule, the effect of upholding that rule is to leave a statute which the government of Puerto Rico itself concedes is not constitutional in full place and in full effect.
Warren E. Burger: You say that is not in adequate state ground too, beside the case is on, this special majority rule?
Joseph Remcho: I think the adequate state ground thing is somewhat different. The adequate state ground in the classic sense is when there is a constitutional provision gives more rights than the federal constitution allows. This Court has said in the past that a local procedural rule which this is of the state cannot be used to foreclose federal constitutional right, you did that in Chambers --
Byron R. White: What if it had happened that your Fourth Amendment issue had not been properly raised in the lower court and the Puerto Rican Supreme Court said, we just will not rule on that, because you did not raise it as our rules require and so we affirm the judgment. Now if you came here, we would say that we would deny or dismiss because of an adequate state ground, but it would not foreclose you from federal -- would not necessarily foreclose you from federal habeas?
Joseph Remcho: Well, the Court has in the past with respect to procedural rules other than even handed -- procedure rules which interfere with the vindication of federal constitutional rights have not stuck down in the past by the Court, which have been –-
Thurgood Marshall: [Inaudible] procedural rule, is it not a procedural rule. There is a little bit of substance here. The order says and considering the absence of the majority vote required by constitution's no said act, the judgment is affirmed, that is not procedural, is it?
Joseph Remcho: That is it for my client; he is facing three years in jail, I agree.
Potter Stewart: He is in jail.
Thurgood Marshall: That is all we got, did not?
Joseph Remcho: That is right. With respect to this habeas corpus relief --
Thurgood Marshall: Where did you call this procedural?
John Paul Stevens: On the habeas corpus issue, under Stone against Powell, is habeas corpus is available?
Joseph Remcho: I think that is an open question. Either it is not available because there was a full and fair hearing in the Puerto Rico Supreme Court or if there was not a full and fair hearing in the Puerto Rico Supreme Court, then it seems to we should prevail on our due process ground. So I would say that, habeas is only available if we have that full and fair hearing. If a court says ultimately that it will not entertain on habeas corpus and if the Puerto Rico Supreme Court on remand says, it is still powerless to enter the judgment, then in fact this statute, this Public Law 22 will remain on the books. Even the government thinks it is unconstitutional and hopefully some members of this Court think it is unconstitutional.
William H. Rehnquist: If the supreme Court of Puerto Rico -- if the constituent act said in so many words that the supreme Court of Puerto Rico will not consider any United States constitutional claims in hearing an appeal from a conviction. I suppose then the high of -- the supreme Court of Puerto Rico is not the highest Court of a state in which a judgment can be had for purposes of considering those claims and you would have to go back to the district court or Superior Court in Puerto Rico and say that was the court you are appealing from.
Joseph Remcho: Is not in the effect of two are the same?
William H. Rehnquist: We are about not of one mind.
Joseph Remcho: I gather that.
Byron R. White: But I have to talk, it would be very hard for the lower court to enter a judgment contrary to the Supreme Court of Puerto Rico which has already affirmed the judgment?
Joseph Remcho: I agree, I think that would be extraordinarily --
Byron R. White: Difficult.
Joseph Remcho: -- difficult, yes and that is why I think for reasons of judicial economy and also because this case has been fully briefed to the Court, that in order to be guided by the government's concession that they do not even think this mean unconstitutional in order to decide the issue.
William J. Brennan, Jr.: Are you suggesting, your client faces three years in jail because the judgment of conviction was affirmed. Therefore, we should completely ignore everything that was said on the Fourth Amendment issue by the Supreme Court of Puerto Rico although properly tended to them to decide because they did not decide it and we should just review the judgment of the conviction, and you argue to set it aside on the ground that the Fourth Amendment indeed was violated?
Joseph Remcho: Well, I think you can set the judgment of conviction aside and declare the statute unconstitutional without ignoring what the Supreme Court of Puerto Rico said.
William J. Brennan, Jr.: I know, but obviously everything that was said in your Supreme Court had no bearing on the judgment that was actually handed, that is affirmance of the conviction.
Joseph Remcho: I am not sure that it had no bearing. It did not compel the result, one would have thought just coming --
William J. Brennan, Jr.: Well, surely nothing that was said on the side of the Four support the affirmance of the conviction.
Joseph Remcho: That is correct.
Thurgood Marshall: What we would do, we would reverse the judgment on the basis of the majority opinion.
Warren E. Burger: That is what you are asking us to do.
Thurgood Marshall: [Inaudible]
Joseph Remcho: Well, I would like to see it in the books. I have the feeling you can put it otherwise and still reverse that judgment. Let me reserve the remainder of my time for rebuttal.
William J. Brennan, Jr.: You have not much chance to argue [Inaudible]
Warren E. Burger: That is all argued. Mr. Armstrong?
William J. Brennan, Jr.: Can you get us out of this Mr. Armstrong?
Roberto Armstrong, Jr.: I will try, Chief Justice, and thank you and may it please the Court. I believe that the main issue before this Court is whether the appellant properly raised before the Supreme Court of Puerto Rico the issue that there was a conflict meeting federal law and the non-reversal of the conviction on account of the Puerto Rican constitutional section that binds probably on the decisions based on local rule. In this case the four justices, the four judges who decided in favor of reversal, they did not decide only on the local grounds. They decided on Fourth Amendment, of Fourth Amendment and local Article 10 rights. There is no question in my mind that on the Ohio versus Akron Park decision, the more than simple majority requirement for wiping out a law, a statute is reasonable. So as far as the local law is concerned, I believe that the decision is a final and there is nothing more toward the audit and nothing that can be brought to this Court. It was only apparently a decision on local rule. However, we recognize that there is a conflict opened here. It was a conflict between the Fourth Amendment right on which the four judges' decision is based. The federal basis of that decision is the one that probably opens a supremacy clause issue that properly raised before by the Supreme Court of Puerto Rico could give jurisdiction to this Court to adjudicate this case. In other words, the case was not that -- the Supreme Court of Puerto Rico was never apprised of the existence of a supremacy clause conflict. In fact, our rationale thinking is that we want to make clear. The appellate procedure in Puerto Rico gives appellant ten days after entering of judgment to file a motion for reconsideration. We agree we grant that, that was the first opportunity that the appellant had to raise the federal issue. That was the first opportunity he had to raise the supremacy clause effect on that constitutional provision that says that no presumably local law can be ruled unconstitutional except by the absolute majority of the judges, composing the Supreme Court. We believe that there is a possibility of the supremacy clause conflict because that obviously refers to local law issues, not to cases where, as in this one, the ruling is based on federal grounds besides the local ground. So I believe that the failing to put to timely raise the issue before the Supreme Court of Puerto Rico, appellant waived the right to bring the case here. Later 121 days, say he had first ten working days to file his motion for reconsideration. In 121 days of that appeal had been proceeded here, -- appeal is already in process. They filed a motion for rehearing, there is something lurking in background there, of all the constitutional supremacy's, federal supremacy's. Well they believe that the -- these are cases and appealed cases, these Ohio cases, Slayer versus Ohio, Riley versus Ohio they state that they were on issue, these will be raised. It shall be raised explicitly with timeliness and in a way that there would be no question that, that issue is being raised. On implication of a federal issue is not enough to put the Supreme Court of Puerto Rico in a position to rule on whether or not the constitutional Article V, Section 4 conflicts insofar as this case, it conflicts with the Fourth Amendment right of appellant and the matter of refrain from original resurges. The Supreme Court of Puerto Rico never said nobody --
William J. Brennan, Jr.: Let me see if I understand you Mr. Armstrong. Are you saying this that within the 10 days after this decision came down in the Supreme Court, he should have applied or should have made an allegation, petition for rehearing or whatever it may be, that as applied to a case where four thought the federal question constitutional question should be decided in favor of the accused, that not therefore to reverse the judgment of conviction, somehow violated some provision of the federal constitution, is that it?
Roberto Armstrong, Jr.: Correct Your Honor.
William J. Brennan, Jr.: Well, now what provision in the federal constitution would you say he had to assert, had been violated by not reversing the conviction on this?
Roberto Armstrong, Jr.: I would say that that is a federal ground for reversal.
William J. Brennan, Jr.: What is it?
Roberto Armstrong, Jr.: The federal ground was that the reasonable, probably unreasonableness of the search.
William J. Brennan, Jr.: I am sorry I did not catch that Mr. Armstrong.
Roberto Armstrong, Jr.: The probable or reasonableness of the statute, of the evidences of the search, on what the evidence was. That was what the four judges found to be in conflict.
William J. Brennan, Jr.: Well I know, but I thought what you told me was that what you should have done was file a petition for rehearing and say that it could not apply the state constitutional provision requiring five votes, because this was a federal constitutional determination by four that the statute was unconstitutional.
Roberto Armstrong, Jr.: On federal grounds.
William J. Brennan, Jr.: On federal grounds and therefore that they could not affirm the judgment of conviction under the state constitutional, Puerto Rico constitutional provision, but had to reverse it. Now, what is the federal ground for that claim?
Roberto Armstrong, Jr.: The supremacy clause.
William J. Brennan, Jr.: The supremacy clause.
Roberto Armstrong, Jr.: Because the judges were bound by the supremacy clause which says that they shall rule on the federal law notwithstanding any provision in the constitution or the laws of the state to be contrary. If the man had a four-to-three acquittal on federal grounds; on federal grounds that was enough for acquittal, but the point was that, that issue was never raised. The Supreme Court of Puerto Rico never had the opportunity to decide on that issue and that is why we believe that remand is now the appropriate remedy. I believe that this means something because there is no federal issue properly raised; there is no federal question before this Court.
William J. Brennan, Jr.: And therefore you say the appeal should be dismissed?
Roberto Armstrong, Jr.: The appeal should be --
William J. Brennan, Jr.: The appeal to this Court be dismissed?
Roberto Armstrong, Jr.: The appeal in this Court should be dismissed, probably as they are consolidated them on a reasonable grounds for a federal habeas because he has been has got that four-to-three decision there. Well, as far as this appeal, the Supreme Court of Puerto Rico has not passed on the question that this brought to this Court at this time. So only Court decides that the issue, only court decides whether or not that absolute majority principle is binding in our cases, and with our laws whether federal or commonwealth. I believe the Supreme Court of Puerto Rico has not entered any decision with the federal provision, sufficiently substantial to come before this Court.
William H. Rehnquist: But Mr. Armstrong, you do not doubt, do you, that the Supreme Court of Puerto Rico has entered a judgment affirming the conviction?
Roberto Armstrong, Jr.: No, that is a matter of record. The conviction, the judgment is entered for the reasons stated there that the Constitution of Puerto Rico impeached any other ruling expect that one.
William H. Rehnquist: Does the constitution of the Supreme Court of Puerto Rico required an affirmance in this case?
Roberto Armstrong, Jr.: Requires on affirmance of the conviction because based on their own concept, they cannot decide that the statute is unconstitutional, because only four judges out of eight voted for the unconstitutionality. They never had the opportunity to rule on the supremacy clauses because that was never brought to their attention.
Thurgood Marshall: But what could have been done then?
Roberto Armstrong, Jr.: Well, Your Honor, I really if it was in the case of that Nixon versus.
Thurgood Marshall: You never foreclosing that --
Roberto Armstrong, Jr.: They say that the --
Thurgood Marshall: Do you have eight-member court, do you?
Roberto Armstrong, Jr.: Powell, Nixon versus Powell case, he says that the ultimate goal of a criminal procedure is a search for guilt or finding of guilt or the decision on guilt. In this case, there are no claims that the appellant is innocent.
Thurgood Marshall: I do not have anything in my question that involve innocence, guilt, or anything else. Mine was, you said these are the files and got petitioned to rehearing.
Roberto Armstrong, Jr.: He had the right to file a petition for rehearing ten days after the judgment --
Thurgood Marshall: Then that could have been done by the seven people involved.
Roberto Armstrong, Jr.: They could listen to the argument on federal supremacy.
Thurgood Marshall: What could they have done said that statute was – that constitution was unconstitutional?
Roberto Armstrong, Jr.: No, not necessarily but they have to say --
Thurgood Marshall: What could they have said?
Roberto Armstrong, Jr.: They could have said that when the statute conflicts with federal law, the rule because Puerto Rican constitutional rule does not apply, that it only applies to unconstitutionality base.
Thurgood Marshall: And therefore is the man released or still here?
Roberto Armstrong, Jr.: We will be releasing in that case, we have problem.
Thurgood Marshall: He would be released.
Roberto Armstrong, Jr.: He will be released if they found that there was a conflict that rendered, that they eliminated the bar, that these are raised by this Puerto Rican constitutional provision against the clearing along constitutional except [Inaudible]
Thurgood Marshall: But they knew they were dealing with a federal question?
Roberto Armstrong, Jr.: They should have known what that – the point was not there specifically raised then. They were looking at it from the local law standpoint.
William H. Rehnquist: But Mr. Armstrong, you are saying that the defendant is in a worse position because three of the justices disagreed with him than he would have been if all seven justices disagreed with him?
Roberto Armstrong, Jr.: Why he will be in a worse?
William H. Rehnquist: Well, if all seven justices had rejected his constitutional claim, the judgment would have been affirmed and the statute would have been upheld. And he certainly could have brought that claim here for independent decision by this Court on the federal constitutional question, could he not?
Roberto Armstrong, Jr.: Well, it would be the same situation again. The point is that unless he raises the point in the state, the commonwealth, highest Court of Appeal level, he cannot bring it to this Court. See, we are dealing with the appellate process. Say what you have exactly what the state provides. It is a matter of the state deciding what is going to be done in there for appellant review of the criminal provision. It is not a matter of right. We will, if they will agree that they -- whatever you can do in on appeal is a matter that depends on what the state grants you an appeal and the Puerto Rican appellate procedure includes that constitutional requirement that to declare it unconstitutional absolute majority of the members composing the court must vote for a constitutionality of the statute.
William H. Rehnquist: Supposing the Puerto Rican constitution went even further than it does now and said that no court in Puerto Rico shall ever have a right to upset a conviction of a criminal defendant on a federal constitutional ground, couldn't a defendant who asserted a federal constitutional ground that was not heard by any of the Puerto Rican courts for that reason, nonetheless bring that case here?
Roberto Armstrong, Jr.: Well, an absolute prohibition like that is I believe that the -- on the certain circumstances may raise a compelled -- some kind of appellant review. Well, it will be on the federal question, not on local law, because on local law, he will not have a right to an appeal, but as a matter of federal law, even if they were no longer in those circumstances, he may have a federal question that he could bring to this Court.
Thurgood Marshall: Mr. Armstrong, you said that the Supreme Court did not consider the federal right, I do not see anything in but federal?
Roberto Armstrong, Jr.: Nothing in the record shows that. I think you will see that the --
Thurgood Marshall: No I am talking about the opinion of the four judges, all they talked about it?
Roberto Armstrong, Jr.: They talk about the Due Process.
Thurgood Marshall: That is right of the federal constitution.
Roberto Armstrong, Jr.: Yes, the federal –
Thurgood Marshall: That is all they talked about. They knew they were deciding a federal question?
Roberto Armstrong, Jr.: They were deciding a federal question, but when --
Thurgood Marshall: And they decided a federal question?
Roberto Armstrong, Jr.: They left undecided a federal question, because that federal question was not brought to their attention.
William J. Brennan, Jr.: Mr. Armstrong, does Puerto Rico have a post conviction procedure?
Roberto Armstrong, Jr.: Post conviction --
William J. Brennan, Jr.: A federal habeas corpus --
Roberto Armstrong, Jr.: We have federal habeas corpus there in the --
William J. Brennan, Jr.: I know, you do in the federal district courts, but do you in the state courts have a comparable post conviction proceeding?
Roberto Armstrong, Jr.: We have all the Due Process in the federal --
William J. Brennan, Jr.: In the Puerto Rico -- I keep following the state never, but Puerto Rico is not a state, but in the Puerto Rico courts, is there a post conviction proceeding?
Roberto Armstrong, Jr.: There are several post conviction procedures.
William J. Brennan, Jr.: Well could -- if we cannot decide this case, may the appellant go to a Puerto Rico post conviction proceeding?
Roberto Armstrong, Jr.: I do not see why he cannot file the habeas corpus over there.
William J. Brennan, Jr.: Well, that is a federal habeas corpus.
Roberto Armstrong, Jr.: No, I mean a Puerto Rico habeas corpus.
William J. Brennan, Jr.: A Puerto Rico habeas corpus.
Roberto Armstrong, Jr.: Habeas corpus. He could then raise the federal question there, not the state, a Puerto Rico court decide this whether right --
Byron R. White: Mr. Armstrong, do you have some cases in this Court by any chance with respect to this? Suppose as in this case, there is a federal issue that does not emerge or does not appear until after the highest Court of the state has decided the case, which is true here I gather. And under the state procedure that new issue that has emerged could be presented by a petitioner for rehearing to the highest Court of the state. Are there some cases here that say that before the looser can bring the case here, he must file a petition for rehearing? Is there some cases here in our Courts that say that he has not presented the issue to the state court?
Roberto Armstrong, Jr.: I know that at least in the Akron case, the Ohio case, they mention that the petition was not timely filed and there are other cases where they said that the --
Byron R. White: In the Ohio case, it was not timely filed?
Roberto Armstrong, Jr.: It was not timely filed I believe and I meant several cases that could raise that point conservations that --
Byron R. White: Well, so what is the answer to my question, must he present it to the state court on petition for rehearing?
Roberto Armstrong, Jr.: That is the first opportunity that he has presenting the federal claim, he must file – he must present the petition for rehearing.
Byron R. White: Or if he does not, he may not come here, is that it?
Roberto Armstrong, Jr.: He has not properly raised the federal question down and he cannot come here because the question has not been decided, has not been put before the court. There were several cases out there.
Byron R. White: Well, that is alright. Thank you very much.
Warren E. Burger: Do you have anything further counsel?
Joseph Remcho: Yes, if I may.
Warren E. Burger: Yeah, you have about three minutes left.
Joseph Remcho: Thank you. With respect to the timely raising the petition, Rule 45 (d), the rules in the Supreme Court of Puerto Rico says that if you file a petition beyond the ten-day period, then that will be not be granted unless it will have no effect on the -- will not be acted unless it has no effect on the mandate and in fact this late petition was acted on by the Supreme Court of Puerto Rico. They did not say they were denying it as untimely. They made en banc and they acted on that late petition. I am also not certain that there are any decisions of this --
Byron R. White: And denied it?
Joseph Remcho: And denied it; that is correct.
Byron R. White: And you presented the claim that this constitutional provision was invalid under the federal constitution?
Joseph Remcho: That is correct. We relied there on the due process clause and we pointed out the difficulty --
Byron R. White: And your petition for rehearing is in the record here or not?
Joseph Remcho: Yes it is. It is reprinted in the motion to dismiss or affirm appendix there at pages 3A to 4A of the relevant sections, where it was raised on due process and also the Stine versus Powell ground and of course that carries with it, the supremacy clause grounds for example in Chapman versus California, the basis for decision there obviously was one of the supremacy of federal rights over local constitutional procedures, and the court there did not even mention the supremacy clause as it is often does not mention it, because it is the underpinning of everything there is with respect to this Court's actions over local rules.
William J. Brennan, Jr.: And the Supreme Court en banc simply denied the motion, was that it?
Joseph Remcho: That is correct; there was nothing about this being untimely.
William J. Brennan, Jr.: Now, we do not know they denied it as out of time or --
Joseph Remcho: We do not know that. We do know that there is an appellate procedure, which suggests that the court should not file one, which is out of time and it may very well be that the court directed to file this one, fully considered it, denied it on the merits. But I think the inference is that it was heard on the merits, it was heard en banc.
Byron R. White: Why is that the inference?
Joseph Remcho: Because of the Section of 45 (b), which states that a petition for rehearing ought not to be filed if it is late by the clerk and then there is a certain inconsistency between that and 45 (d).
William J. Brennan, Jr.: Is that a rule [Voice Overlap]
Joseph Remcho: Yes, such we printed in the governments motion to dismiss or affirm at page 7.
William J. Brennan, Jr.: I mean that the rule itself?
Joseph Remcho: Yes the rule.
William J. Brennan, Jr.: Rule 45?
Joseph Remcho: Yes, they are reprinted.
William J. Brennan, Jr.: At page what?
Joseph Remcho: Page 7 of the government's motion to dismiss or affirm.
William J. Brennan, Jr.: Yes, thank you.
Byron R. White: Suppose they did deny it on the merits and do you want us to say that they were wrong in denying it?
Joseph Remcho: Sure.
Byron R. White: And in namely, you want us to agree with you in your petition for rehearing and declare that, that provision of the Puerto Rican Constitution is invalid under the federal constitution?
Joseph Remcho: That is correct, I am not so sure --
Byron R. White: Is that the least but inconsistent with the Ohio case?
Joseph Remcho: Oh! I think that there is a certain inconsistency there, but the Ohio case first off is 48 years of due process.
Byron R. White: So you would really say that we should really upset the Ohio case?
Joseph Remcho: I do not think it is necessary, because the Ohio had two things this case does not. First of all, it was a civil case and second, there was already intermediate full appellate review in the Ohio court, so that case can certainly be distinguished.
William H. Rehnquist: Well, several years ago, this Court upheld a 60% majority requirement for a bond approval in West Virginia, didn't it?
Joseph Remcho: Well, I think that bond approval matters and those were to civil matters have historically been treated very, very differently from the enforcement of federal constitutions rights.
William J. Brennan, Jr.: Mr. Remcho, I must say, wasn't this rule 45 or rather [Inaudible] any motion for reconsideration must, if the aforementioned term of ten working days and then in the last sentence, the clerk shall deny outright any petition for extension to file a motion for reconsideration.
Joseph Remcho: Well, I think there is a certain inconsistency between that and between 45(d), which appears on page 7, which says any motion for reconsideration filed out of the aforementioned terms shall be considered by the court only to the extent that it does not effect the mandate and here of course the mandate had already been stayed. Frankly it appears --
Byron R. White: It would have affected the mandate somewhat.
Thurgood Marshall: But the court did deny it?
Joseph Remcho: That is correct, it denied it but --
Thurgood Marshall: You can say, they were so agreed by the court and say by the clerk?
Joseph Remcho: That is correct, but the court did allow its clerk to file that petition for reconsideration and it acted on it en banc, which suggests that it gave very stressful consideration. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.