Earl Warren: Carey, etcetera, petitioner versus Westinghouse Electric Company. Mr. Hunt, you may continue your argument.
John F. Hunt, Jr.: Thank you, Your Honor. Yesterday Justice White asked whether the company's right to go to the board and to obtain a board adjudication of the controversy did not take a lot of sting out of what we said where the undesirable elements of bilateral arbitration, and thereby militate against a construction of Section 301 which we speak for. I would like to elaborate on what I said yesterday, because I think that if there is such a mitigation, we are faced with a peculiar circularity, if the grievance is arbitrable, if 301 must be construed as my adversaries contend, and we go to the board, the day the 301 action has commenced, the board certainly would not enjoin the 301 action nor it would have authority to do so. The court would not state a 301 action because of the reversal of this decision here now, and then we would proceed through the arbitration, and get an award, the IUE would get an award under this hypothesis and I think it is proper to assume for purposes of analysis that the board determination is contrary to the arbitrator's award, we then have the same conflict at that juncture that we have here. One would think that the arbitrator's award would become nullified by a contrary board award, but the basis of Mr. Sigal's position is that that the arbitrator's award gives him a contract right which is heretically different from the board determination of a statutory right, but you cannot avoid the conflict. Now, I think it was assumed yesterday that, of course, the arbitrator's award would fall against a contrary board award, but if this distinction between contract right and statutory right is valid, it is not entirely clear that the arbitrator's award would fall. Now, the Congress did speak in the statute fairly directly on the subject of conflict between board determinations and determinations from any other source, not excluding arbitration and that section I referred to was Section 10 (a), I referred to it in my brief at Page 32; 10(a) –
Speaker: (Inaudible)
John F. Hunt, Jr.: Of the brief Page 32, Your Honor. 10 (a) which goes back to the Wagner Act provides that the power of the board to prevent unfair labor practices, matters cognizable under 8 shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement or otherwise. Now, the omission of any -- here Congress is addressing itself the conflict and it talks only about conflict with an unfair labor practice concurrency. There is no statement whatsoever to cover the situation of a conflict between a unit determination under Section 9 and a determination of the same controversy by some other means of adjustment established by agreement such as arbitration. Do we infer from 10 (a) that the board's power over units is not paramount? I think the board's power over units is the most unreviewable administrative determination that exists virtually in our law. The board's discretion over units is one of the most unfettered agency discretions in our federal administrative system. I think I infer that Congress could not even conceive of there being a conflict between a board-determined unit and a unit-determined determined by some other means of adjustment, agreement or a law. I don't think Congress could conceive of this situation and had it done so, it certainly would have elaborated in 10 (a) when it addressed itself to the subject of concurrency and conflict. From that I inferred that Congress did not intend that 301 be used to have an arbitrator review, or court makes no difference, review a board-determined unit and that is exactly what the review sought here concerns. There is another aspect of this idea that the two proceedings can go along concurrently without doing any harm. If we are wrong, we have no right to force the union into court under 301. There shouldn't have been an action. We should have just agreed to arbitrate. We should've proceeded with arbitration. Now if the harm, we say, should be avoided by affirmance here can equally be avoided by our going to the board and if the reason that is an -- would be an adequate answer is that the arbitrator may not proceed and avoid and resolve, I first referred to, do we have -- but because of reversal here, we go into arbitration; we don't force the union to go to court. We go the board but to stop the arbitration, we ourselves have to go to court as well as to the board for declaratory judgment under 301 that the arbitrator should not be proceeding and therefore, should be enjoined from proceeding. So I think you can't avoid the question of whether there is a conflict, whether the exercise of this concurrent jurisdiction presents a sufficiently serious problem that should not be permitted in the overall scheme of orderly adjustment of labor disputes. Now if you --
Byron R. White: (Inaudible)
John F. Hunt, Jr.: Your Honor, I completely agree with Smith. In fact, the briefs below show that I stipulated the rule of Smith beginning in special term. The unfair labor practice concurrency does not bar arbitration and I've stipulated that some special term before Smith.
Byron R. White: Certification does.
John F. Hunt, Jr.: Certification is a different question.
Byron R. White: (Inaudible)
John F. Hunt, Jr.: -- at least, and here where there are two outstanding orders which are report to be neutrally exclusive. Now, another factor I would like to bring into this argument is we keep talking about arbitration and the reason why arbitration will be helpful here, it may induce the federation to acquiescence loss of jobs or people, whatever maybe involved. It may be helpful to the board when the controversy ultimately comes before the board. Now if you look at the agreement, the collective bargaining agreement, arbitration is the last step following a four-step grievance procedure. The normal way to handle plant controversies is not to go to an arbitrator; it's to go to shop steward, supervisor, grievance and so on up to the national grievance level. When the grievance procedures, which are highly favored by Congress, break down, when they don't work, then you go to arbitration, but if the union is right here and I think Justice Brennan perhaps had this in mind in one of his questions yesterday, well supposing we had agreed at the grievance level here, supposing we had agreed with the IUE's contentions and then transferred the workers or employees, we wouldn't have solved any problems because then the case would be here captioned federation against Westinghouse. I mean we just can't agree at the grievance procedure, at the grievance level to this type of bilateral adjustment of a trilateral dispute; we just can't do it. But in theory, if the arbitrator can do it in his award, we can do it as a grievance level. Now as in the side, we do not have an umpire for the industry here. We have arbitrators selected on an ad hoc basis on a AAA list, and I don't demean them at all, but I do object to the demeaning of the board's expertise in this area, and the reference to the board as an agency reviewing on paper records in Washington. In legal theory, the decision is the board's, but there is certainly a reality that the initial decisional power is delegated to a hearing officer and they sit all over the country and they can go into plants and they do go into plants and they have full process over parties and over evidence which an arbitrator does not. This contract arbitrator does not have full process powers over evidence let alone other parties and witnesses. So it's the board hearing examiner that the arbitrator is competing with here, not the board itself and the board hearing examiner is certainly expert with the same kind of problem of job classification. He is an expert on the board's Section 9 criteria, and they must be involved here because all these rights and relations depend on propriety of unit, an issue which can only be decided under Section 9 criteria. Now if my adversaries are right, there is no exception to arbitrability here. They talk about the one or two employee case, but I could talk about a case that came out of arbitration after my brief was filed, and I think it is a good case to consider here. It is reported at this year's Daily Labor Reports, number 155 at Page D1 that's the October 7th. DLR 195 Page D1 involves the UNIVAC division of Remington Rand. The employer had a plan in Utica for which IUE, petitioner here, was a certified representative of production and maintenance workers. It had another plant at a fairly close by town called Ilion at which IAM machinist union is. It was a certified representative of production and maintenance workers. It unilaterally closed down the Utica plant and consolidated operations at Ilion. It offered all the Utica employees jobs at Ilion, but continued to recognize the machinist at Ilion in respect of all employees and putting those transferred from the IUE jurisdiction at the Utica plant. IUE sought arbitration and the employer there and I would like to go back to steel workers, this Court said in steel workers, unless you bargain away your right to a judicial determination, you have it, but there is nothing wrong with letting the arbitrator decide arbitrability. That's also, that would be subject to review on this award, but it's the difference in procedure here. But that went to the arbitrator, but the employer contested on the grounds of arbitrability, not on the merits as we did in the 301 action involved. Now here he concluded that the grievance was not arbitrable and he did not do so on the basis of legal precedent and feel bound by the New York Court of Appeals' decision here. He didn't feel himself bound by precedent. He said that it was non-arbitrable in his view, because of the simple fact that in Utica, there is a legally certified union with the exclusive right to represent all production and maintenance of employees of the Utica plant. He said that any reasonable person would have to conclude that a verdict favoring IUE would constitute an attack on the certification scope of the Utica IAM unit. Once this simple fact is acknowledged, it places the issue on proper perspective namely, which union is entitled to represent the transferees and under whose agreement all the rights and responsibilities be determined. This is clearly a representation question and one for the NLRB. I can appreciate the hardship involved here, but I note that in denying arbitrability of the grievance nothing in this opinion should be construed as prejudicial to whatever rights the union may have in the proper arena. So he just made an arbitrability determination, and he said that his view as matter of logic and common sense, this was not an arbitrable grievance. Now he is not bound by 301. I don't have significant values, but arbitrators are, they are powered to rise under 301, but they are not bound by 301, but I think we have to have a common standard of arbitrability between arbitrators and the courts. It shouldn't make any difference who determines arbitrability. If you look at the Utica-Ilion situation, if you, as the contract matter said, IUE has the continued right to represent former Utica employees at Ilion in this merged production and maintenance unit. It just couldn't work, it is just chaotic. You can't have two bargaining representatives for the same group of employees. It is a fundamental breakdown on the whole concept of collective bargaining. I mean mine is the cornerstone of the act. There's got to be an election district, an appropriate election, an election of a bargaining representative, and then the employer deals with the bargaining representative. And you just can't have it unclear who represents whom in the shop. Now that case is more dramatic than my case because we're not dealing with an entire plan; we're dealing with the engineering laboratory. I'm not saying that this is a question of degree; I think it's a question of principle. If the thrust of a grievance is the enlargement of representational jurisdiction, no matter what other labels you've put on, it should not be arbitrable. Now, it has been said that everybody in this case agrees, it doesn't make any difference than what you call a grievance, and I agree with that too. It doesn't make any difference what you call this grievance, but that does not mean that I'm taking the position that any work assignment grievance is arguable, as Solicitor General Cox gave the example of a run of a mill dispute in which the employer threw in the proposition, well this fellow is a supervisor anyway. Now that doesn't deter arbitrability in that case. If the issue truly is whether he is a supervisor, it is a status determination, which I would think would have to be made on the act, but I don't have to go so far in this case. I say that the status of collective bargaining representative has to be determined by the board.
Byron R. White: Mr. Hunt, you wouldn't suggest that you couldn't have a three-quartered agreement in a private resolution of the issue?
John F. Hunt, Jr.: Your honor, binding the federation under 301 would be helpful here.
Byron R. White: Let's assume that --
John F. Hunt, Jr.: It would be, but it couldn't solve all the problem.
Byron R. White: But let's assume that your collective bargaining agreement explicitly excluded these kinds of disputes, from your obligation to arbitrate. Now this problem comes up and then you and the two unions get together and you have a private resolution of the matter, agree to how to dispose this case, it happens to vary from the unit, the resulting units happen to vary from those certified by the board.
John F. Hunt, Jr.: Did both unions agree?
Byron R. White: Yes.
John F. Hunt, Jr.: If we entered into such an agreement, most of the problems I referred to would not occur, but the employees will disagree with it, not the union.
Byron R. White: There would be no question then, and if you resolve this matter that it would be an enforceable arrangement, isn't it?
John F. Hunt, Jr.: Enforceable in the courts under 301.
Byron R. White: Sure.
John F. Hunt, Jr.: Your honor, I need to say that if one of the three parties to that tripartite agreement wants to welsh, I think maybe the public interest requires that he be permitted to welsh.
Byron R. White: To go to the board.
John F. Hunt, Jr.: Yes. Yes sir.
Byron R. White: Similarly, assume your contract specifically excluded this kind of a dispute from your obligation to arbitrate, and the same situation comes up and these are same union asked you to submit it to an arbitration, and you might think that well, I'll arbitrate, I suppose you could do it, you'd still be subject to be taken to the board by the other union. Now you apparently disagree --
John F. Hunt, Jr.: 301 impose that risk on; we don't voluntarily assume it.
Byron R. White: You apparently disagree with the Solicitor General that arbitration in this kind of a situation is usually successful in producing some kind of an agreement from the other union.
John F. Hunt, Jr.: Oh, yes, I disagree with that.
Byron R. White: As a matter of --
John F. Hunt, Jr.: If the federation would have lasted our arbitration agreement, why should they give up jobs, because of somebody says the IUE contract means that the federation has no rights here.
Byron R. White: But you could take the approach that assuming that the arbitration doesn't bind anybody that anybody can go to the board and have the board's final say, you can still think that going through the procedure that is catalyst to try that resolution of the matter and just avoid all official -- which is the Solicitor General.
John F. Hunt, Jr.: I think there is a circularity in that, Your Honor.
Byron R. White: Not circular, this means that your only answer is that you eventually get to the board anyway, if somebody wants to welsh, right?
John F. Hunt, Jr.: And I don't think Congress intended.
Byron R. White: But how many times the people welsh when all three people had a grievance?
John F. Hunt, Jr.: Well, the employees, who are dissatisfied with the union's three-way agreement, wouldn't be welshing if they went to the board or a completely separate unit that says aha, there are no longer certified units here and under 8 (b) (4) (c), I can go after the groups over there. We lose our 8 (b) (4) (c) protection and we haven't bargained away that. Now if an employer has bargained it away as against unrepresented from a group of employees, maybe the same, all the same considerations don't apply, but as against another certified union, I just can't believe that we should have those risks imposed upon us because of the principles of Steel Workers favoring arbitrability where there were no countervailing policy considerations, but here there are just so many countervailing policy considerations but I think the best construction of 301 that maybe made realistically, this is a real problem, arbitrators have recognized it, Mr. Cox recognized it, this is a real problem and I would shape 301 and you have a blank check really on 301 on this issue so far, I would shape 301 and not to follow the hornbook rule that contracts are enforceable unless against public policy, because arbitration, obviously, isn't against public policy, but shape the rule and in this peculiar area of collective bargaining agreement, it's a unique agreement, you can't go to courtroom to get much information on collective bargaining agreements, but we are going to have to have some special rules. Maybe we're going to have to have awhile to work out the lines here, but I say we are on the non-arbitrable side of the line or if 301 should be so construed, basically, I do not think Congress intended that bilateral industrial arbitration was a felicitous means for resolving controversies of this type because there is only one forum that can bind all parties and employees and implement the public interest reflected in various sections of the act and that forum is the board and the controversy of this type, one way or the other, are going to get to the board. Now if you have an arbitrator's award, Mr. Cox has said, well, there is a problem in segregating out arbitrable relations. If you let them both go forward in tandem, you're going to have that same problem of segregating out arbitrable aspects from non-arbitrable aspects at the award stage instead of at the threshold stage. And it's just not an orderly procedure to have all these proceedings marching down and have the conflict come at the end of the road. The simplest thing is let the board say who represents whom and then the particular arbitration; if IUE wins in the board, then the arbitrator is usefully employed to say, well, what to we do about job presentations now? There's a higher skill level in this laboratory. We're going to have to get the IUE agreement and contemplate these job classifications. We're going to have to adjust the agreement into the new situation. That's what an arbitrator can do here, but he will be doing this in vain if it isn't the representational jurisdiction to begin with. So let the board first say what the unit is and who represents whom and then let arbitrators straighten out the ad hoc problems that flow from status determination, but don't let him make the status determination.
Byron R. White: You don't think there is any chance that the board acting on an arbitrator's decision on that question like this would refuse to entertain?
John F. Hunt, Jr.: No sir.
Byron R. White: Different from an unfairly practical situation?
John F. Hunt, Jr.: Yes sir. In the contract bar rule here, there are two contracts barring each other; the contact bar rule nullifies each other. Now board differed to arbitration in Reilys and more recently in Installation and Specialties, a new case, to say what the contract barred. This is an interpretation of a contract between the union and the employer. That contract precluded another union for a certain period of time. Well, the construction on that contract put by an arbitrator is an elaboration which helps the board say whether the contract bar rule applies, but I know of no case where the board in this context has said that we're going to hold federation bound by what the IUE arbitrator said the IUE agreement meant. It really had nothing to do with federation's rights. Thank you.
Earl Warren: Mr. Sigal?
Benjamin C. Sigal: Mr. Chief justice and members of -- may it please the Court. There has been a great deal of speculation about what the end product of a number of postulated alternatives maybe and I'm afraid the facts in this case have been lost in this cloud of speculation. Now it has been assumed that this is a representation case in which the union is seeking to its largest unit that is not the fact and it is not in our view of representation case in any respect, but let us recall your attention, Your Honors, to the statements of the issue as set forth in the affidavit of the petitioner at Page 36 of the record. Now there it is pointed out and nowhere denied in the answering affidavit of the company that what happened here was that after the contract, after the certification, after the contract was signed, the company for the first time moved the work, moved production and maintenance work out of the unit represented by the petitioner into the engineering laboratory and it is also asserted that they moved employees represented by the petitioner over into the engineering laboratory. So you have here asserted and nowhere denied in the answering affidavits that there was a transfer of work, there was a work assignment which was alleged to be in violation of the agreement, that is nowhere denied so that must be considered to be the fact. Therefore, there is, as we see it, unquestionably a work assignment dispute here and there may or may not be some questions as to whether the employees, who were transferred, were actually production and maintenance workers. Now that is a question of fact. There is no conflict between the units. The record is clear. The unit represented by the petitioner is the production and maintenance unit excluding salaried, clerical and technical employees. The unit represented by the federation as the salaried technical and clerical employees excluding all production and maintenance workers. So all we have here is a question of fact whether employees a, b, c, and d are production and maintenance workers. There is no question of the unit. The unit has been determined and nobody is seemed to be changing the unit.
Hugo L. Black: Suppose they are not production and maintenance workers?
Benjamin C. Sigal: I am sorry.
Hugo L. Black: Suppose they are not production and maintenance workers.
Benjamin C. Sigal: Well, if they are not production and maintenance workers, then the grievance falls.
Hugo L. Black: Then who else is? Then what would they be?
Benjamin C. Sigal: Oh, they maybe technicians, they maybe engineers, they maybe something other than production.
Hugo L. Black: What contract would they be under?
Benjamin C. Sigal: I am sorry.
Hugo L. Black: What contract would they be under?
Benjamin C. Sigal: They would be presumably represented by the federation because they are --
Hugo L. Black: Under a different union.
Benjamin C. Sigal: A different union.
Hugo L. Black: So what you have it seems to me, I am asking what I'd like to say, what you have here is dispute between two unions as to whether certain workers come under the contract of their union, each of those unions.
Benjamin C. Sigal: But, Your Honor, this doesn't flow from any question or doubt as to what the certification is; it's only a question with respect to whether the specific employees do certain work. Your Honor, it's just a question of fact.
Hugo L. Black: Would the arbitrators bind the other union?
Benjamin C. Sigal: No, the arbitrator would not bind the other union if it wasn't the party, but the point is, so far as --
Hugo L. Black: You wouldn't settle the dispute, would you?
Benjamin C. Sigal: Pardon?
Hugo L. Black: You wouldn't settle the dispute.
Benjamin C. Sigal: We may settle it. If the arbitrator says you have no grievance that settles it. That settles it.
Hugo L. Black: (Inaudible) plain order in everyday jurisdictional dispute?
Benjamin C. Sigal: No, Your Honor, it is not an ordinary jurisdictional dispute because in our view, there is no question about the -- in this situation, we have a dispute between the union and the company. Now let us assume that there is a jurisdiction --
Hugo L. Black: The other union claims that they ought to be on its --
Benjamin C. Sigal: The other union in this case --
Hugo L. Black: I am not talking about their private opinion in this arbitration because they haven't. They have not.
Benjamin C. Sigal: But in this case, the other union hasn't claimed anything; they have been silent, and we do not know, and we cannot speculate, we should not speculate that the answer of the arbitrator would be improper or would violate the law or would extend the unit. These things are speculated, and this Court has recognized the confidence of arbitrators in labor disputes. For example, in the Columbia Broadcasting System case, when it advised to board to go to arbitrators to learn how work assignment disputes are disposed off.
Hugo L. Black: I don't understand why wouldn't the arbitrators get through and finished, and when still be left, question which had to be decided by somebody as to which one of these units, we call it units, I guess, unions, these people who are entitled work under their contract.
Benjamin C. Sigal: But that's not necessarily so, Your Honor, there might be no question.
Hugo L. Black: You mean they might never raise it?
Benjamin C. Sigal: No, the arbitrator might decide that there is no valid grievance and dismiss the grievance.
Hugo L. Black: But what if he decides that there is though?
Benjamin C. Sigal: If he decides that the employee should be transferred, well, now in that case, if the arbitrator decides that the work should be transferred, then if this is not acceptable to the other union and it may well be acceptable, we don't know that.
Hugo L. Black: It's not usually, is it?
Benjamin C. Sigal: Well, we don't know that as per to the merits of this grievance, we're not supposed to enter into the merits of the grievance, Your Honor, and it seems to us that at this stage, the undenied assertion of the petitioner should be accepted. Now in the event that the employer can in some fashion create an unfair labor practice out of this, then anxiously the other union does object, it can, of course, file a charge. Now, the fact that there is this outside --
Hugo L. Black: And what effect would the arbitration have if it did?
Benjamin C. Sigal: Then the board would consider it, Your Honor.
Hugo L. Black: Would it have any effect; the arbitration--?
Benjamin C. Sigal: It might have a substantial effect –
Hugo L. Black: How?
Benjamin C. Sigal: -- insofar as the board's own action is concerned.
Hugo L. Black: You mean it might influence the board?
Benjamin C. Sigal: Of course, and this is what the parties agreed upon. They agreed upon the procedure to have an arbitrator decide these issues for them, all the issues. There is no exception in this agreement, Your Honor. So far as this problem is concerned, it's an unqualified agreement to arbitrate and there is nothing in the record to suggest there was any limitation on that right to arbitrate including that section on repetition.
Hugo L. Black: What you are saying, as I understand it here, they agreed to arbitrate anything whether their arbitration accept it or not.
Benjamin C. Sigal: Absolutely. Even if it wouldn't settle it that's what they agreed upon.
Hugo L. Black: And even if there's still that same old perplexing problem left for the board or as court as somebody else to decide --
Benjamin C. Sigal: We don't know that that problem would exist, Your Honor. I submit that what the company is seeking to have this Court to do is to emasculate the whole line of decisions of the Steel Workers trilogy and all our cases with respect to the rights of the employee of the union to bargain its opportunities under Section 7 to bargain. If we set aside the Ryan Retail case in which this court said that it would not – that Section 9 does not quantify Section 301. It would set aside the Arkansas (Inaudible) case in which the Court said that it is not necessary to go to the board to get certification that the parties can agree themselves on the certification. And in that respect, the respondent's case is even weaker than in the case as unfair labor practice because only the board can decide whether an unfair labor practice has occurred, but the parties under Section 9 can themselves determine what the union is and the board will accept the party's determination even if that determination nullifies the board's own decertification. Thank you.


Warren E. Burger: We'll hear arguments first this morning in Michigan against DeFillippo. Mr. Baughman you may proceed whenever you are ready.
Timothy A. Baughman: Mr. Chief Justice and May it please the court. Before I discuss the question of the constitutionality of the Detroit Stop and Identify ordinance I would first like to discuss whether the constitutionality of that ordinance is necessarily relevant to the ultimate issue in this case and that is whether or not the Phencyclidine seized from respondent is admissible against him in a trial for possession of phencyclidine and the facts are these. On September 14th, 1976 at approximately 10:00 PM two Detroit police officers answered a radio run to investigate a complaint regarding two persons drunk in an alley by a garage. As they pulled their scout car into the alley and questioned they observed respondent and a woman who was in the process of talking her pants down. They drove on into the alley and while seated in the scout car directed questions to these persons. The woman stated that she had to go to the bathroom. Respondent was asked for identification and stated that he was Sergeant Mash. He was asked for his badge number and he gave a number. He was again asked for identification and this time he stated that he worked for Sergeant Mash. At this point the female approached the scout car and she was asked for identification. Her response was to dump the contents of her wallet through the open police car window on to the lap of the officer who was seated inside. She was then arrested for disorderly conduct because of her intoxicated condition. The respondent was arrested for a violation of the Detroit ordinance for refusing to identify himself. He was searched and on his possession a quantity of Marijuana was found. Also taken from him was a package of cigarettes and in that package the officer observed a tin foil packet. That packet was ultimately determined to contain a quantity of Phencyclidine and it was for possession of phencyclidine that respondent was ultimately charged. He was bound over for trial in Detroit Recorder's Court and a motion to quash the information was brought before the 12 judge and denied. The Michigan Court of Appeals granted an interlocutory appeal and ordered that the information bequest and the case dismissed. The Michigan --
William H. Rehnquist: The Court of Detroit, the Court of General Criminal jurisdiction.
Timothy A. Baughman: It handles all criminal matters in the city of Detroit both felony and misdemeanor.
William J. Brennan, Jr.: Mr. Baughman you stated the one that petitioner who responded rather refused to identify himself he was arrested.
Timothy A. Baughman: Yes that's correct.
William J. Brennan, Jr.: The ordinance doesn't provide for an arrest in that situation or is that considered to be an arrest.
Timothy A. Baughman: It is our position that it is considered to be an arrest. The ordinance declares that it as unlawful to refuse to identify oneself and an unlawful act under a general penalty provision of the Detroit City code calls for a 90 day penalty and a $500 fine.
William J. Brennan, Jr.: It's under the general code rather than the sentence that says, if the person is unable to provide reasonable evidence of his true identity the police officer may transport him to the nearest precinct in order to ascertain his identity, that's not what you are --
Timothy A. Baughman: That's correct, I believe that is separate provision from the refusal to identify portion, I think that's made more clear in the ultimate revision of the ordinance by the Detroit City Counsel. That's a separate provision.
William J. Brennan, Jr.: The revision of the ordinance is not before?
Timothy A. Baughman: No I think the revision only makes clear what was intended all along, I see --
Warren E. Burger: The arresting officer had some other grounds on which to arrest this man, did he not?
Timothy A. Baughman: He may have, that has not been --
Warren E. Burger: He may have one, he represented that he was a police officer is it not a crime of some kind in Detroit and in Michigan for a person to impersonate a police officer.
Timothy A. Baughman: It is and --
Warren E. Burger: Wouldn't that --
Timothy A. Baughman: He may well have had probable cause to arrest for false personation of a police officer at that time. You cannot be convicted of false personation of an police officer in Michigan unless you act as such, but that does not of course mean there was not probably cause to arrest the fact he could not have been convicted, so that may well be true.
Byron R. White: When did the defendant refused to identify himself?
Timothy A. Baughman: Well it is our position that by giving a false and admittedly false answer when he later changed the answer that that is tantamount to refusal to identify. In this record it appears that he never did state that he was Gary DeFillippo.
Byron R. White: Yeah, looking backwards that's right I guess, yeah. So what if a man he asked a person -- asking him name, he gives you a name, has he violated the ordinance if it later turns out that it was false.
Timothy A. Baughman: Well I think if he gave a name then we would go on to the next portion of verifiable proof written or oral --
Byron R. White: So that is in, that is also a part of the ordinance you are saying.
Timothy A. Baughman: Yes. That point was not reached in this case, because we, they never got the identification portion.
Byron R. White: Totally different answer.
Timothy A. Baughman: That's correct.
Warren E. Burger: Mr. Baughman this case is not one prosecution for violation of ordinance is it?
Timothy A. Baughman: No it not, this is a derivate evidence case.
Warren E. Burger: Do you know of any instances in your city where one has been prosecuted for violating the ordinance.
Timothy A. Baughman: I am not personally aware of those, those would be tried by the --
Warren E. Burger: You are a prosecuting attorney are you not?
Timothy A. Baughman: Yes I am.
Warren E. Burger: Have you ever prosecuted one?
Timothy A. Baughman: No I have not, they are not prosecuted by the Wayne County Prosecutor's Office, they are prosecuted by the City of Detroit Corporation Counsel as they are ordinance violations and not State law violations. I am not familiar with whether if they are --
Warren E. Burger: How would the constitutionality of the ordinance ever be determined if no prosecutions were ever brought under it?
Timothy A. Baughman: The only other method would be a possibility a suit for declaratory judgment in Michigan law which would be allowed. But I believe that if the issue of no prosecution has ever been brought in this ordinance would have to be raised in the trial court by a defendant claiming that this was his only method of attacking it and that was not done in this case and I don't think this record demonstrates whether or not there has been prosecution.
Warren E. Burger: Well, except the prosecution as -- and determine what they want to prosecute for.
Timothy A. Baughman: That's correct, I am just saying that I, on this record and personally I do not know if persons have been prosecuted and they well have been but that within the knowledge of the Detroit Corporation Counsel and I do not know. Now, it is our position that the Phencyclidine seized from respondent is admissible against him and that his arrest was valid regardless of the constitutionality of the ordinance. This court has stated that the question of the good faith of the police officers only arises after a constitutional violation has been found, in the question of whether or not a suppression remedy should be applied but whether or not a constitutional violation occurred at all, it turns on a objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time he acted. It's our position that when an officer enforces a presumptively valid penal ordinance, the violence of which has occurred in his presence as is his duty, and objective assessments of the facts and circumstances known to him at that time cannot include that which was not known to him at that time that in the appellate court would subsequently hold the penal ordinance to be unconstitutional. When that legislature enacts the penal ordinance or statute and ultimately there is determined to be a due process defect in that ordinance. This means that a person cannot be incarcerated pursuant to a conviction for violation of that ordinance without his Fourteenth Amendment rights being violated.
William J. Brennan, Jr.: Due process defect or any defect.
Timothy A. Baughman: Any defect that's correct, but it does not mean that when he is arrested for probable cause to believe that he violated that ordinance by a police officer when the ordinances of that time presume valid that his Fourth Amendment rights have been violated. The Fifth Circuit has held precisely in this manner and these are cases cited in our brief. In those cases that court has refused to reach the question of the constitutionality of the underlying ordinance in derivative evidence cases, holding that that question is not relevant to the Fourth Amendment question and holding that when a person is arrested on probable cause.
Byron R. White: Did the Court of Appeals for the Fifth Circuit say there was no Fourth Amendment violation or that the evidence shouldn't be excluded.
Timothy A. Baughman: Well our charge is --
Byron R. White: If they said the first, well they would say the second too.
Timothy A. Baughman: They said the arrest was valid and saying that the arrest was valid I would take to me that they were saying there was no Fourth Amendment violation. They also went to say that the application of exclusionary rule in that context would not serve any purpose. And --
Byron R. White: Even if there had been a --
Timothy A. Baughman: Even if there had been a Fourth Amendment violation and we take both of those positions. We believe there was no Fourth Amendment violation in this case but if there was a Fourth Amendment, the exclusionary rule should not be applied. In Almeida-Sanchez, this court did hold that a Fourth Amendment violation occurred in a case where officers did act in reliance on a statute which had not been declared unconstitutional. But we believe that the difference there is that that statute was not a penal statute, its sole purpose was to authorize searches in certain circumstances, to authorize what might determine Fourth Amendment activity. Now this ordinance does have a portion that authorizes Fourth Amendment activity, the stop of the person. But we believe that that portion of the ordinance is not at issue here either factually or legally. It's a codification of Terry versus Ohio and we believe that the facts in the instant case plainly show grounds for a stop and I don't believe that any lower court has held to the contrary. The question is the penal portion of the ordinance, the substantive offense portion of the ordinance I think is what is at issue here.
Byron R. White: Well you must, you certainly must not only say there is a grounds for a Terry stop search but there must have been grounds for an arrest and a search.
Timothy A. Baughman: Correct, but the ordinance provides that when one is stopped pursuant to Terry versus Ohio, he must upon request state his identity. It is making the conduct of refusing to state identity a crime that this court --
Byron R. White: You think this -- so was there any question, ever any question in this case raised about the grounds for the so called stop?
Timothy A. Baughman: I do not believe so, no. I think it was before the court is whether the legislature ultimately as far as the constitutionality of the ordinance goes, its whether or not the legislature can make this conduct of crime but what they did here is create a substantive offence and we agree that the legislature cannot make valid, make valid conduct which is unconstitutional under the Fourth Amendment when they act procedurally as in Almeida-Sanchez but where they create a substantive offense, where the legislature acts pursuant to its exclusive function of defining crime and ordaining punishment whether or not it has drawn the statute constitutionally, whether or not it can prohibit the conduct, it feats to prohibit as a Fourteenth Amendment question. Whether or not the person was arrested pursuant to probable cause for violation of that ordinance is the Fourth Amendment question and we submit that plainly here there was more than probable cause to believe that Mr. DeFillippo had violated the ordinance. There being probable cause his arrest did not violate his Fourth Amendment rights in the search of person incident to that arrest was proper. Now, if this court is to hold that the seizure of respondent's person was a violation of the Fourth Amendment and the inquiry is not over for then consideration of (Inaudible) is appropriate in determining whether or not the exclusionary rule should be applied. Now Justices Paul and Rehnquist stated in concurring in Brown versus Illinois that there was no legitimate justification for depriving the prosecution, a reliable and prohibitive evidence in cases of technical violations of the Fourth Amendment and they gave us an example when a person is arrested pursuant to a statute which is not yet been declared unconstitutional. But we stated our position that we believe that this conduct is not even a technical violation of the Fourth Amendment but if this court so views it, then we fully agreed that the application of exclusionary rule in this situation would serve no valid purpose.
William J. Brennan, Jr.: Now, in Stone against Powell, the reason that the Court of Appeals for the Ninth Circuit had held that search to be invalid was that it held a ordinance of, that was at Henderson in Nevada, the vagrancy ordinance was an invalid ordinance it held it after the fact, after the search.
Timothy A. Baughman: That's correct.
William J. Brennan, Jr.: Did the court either approved or disapprove that reasoning in Stone, did this court in Stone against Powell either approve or disapprove.
Timothy A. Baughman: I don't I think the majority did not reach that question deciding the case on the habeas corpus issue instead the working current opinions which disagreed with the application of exclusionary role under those circumstances.
William J. Brennan, Jr.: But the court rather assumed that it was an illegal search because the vagrancy ordinance was an invalid ordinance although the placement at the time of the arrest had no reason to believe so.
Timothy A. Baughman: I'm not certain if that may well have been in underlined assumption of the court, I believe that it just stood for the proposition that those kind of claims could not be brought for habeas corpus valid or not I don't think it really settles whether or not the claim was valid.
William J. Brennan, Jr.: You don't think that throws any light on your question here?
Timothy A. Baughman: I don't believe so.
William J. Brennan, Jr.: Although that was the fact wasn't in Stone against Powell.
Timothy A. Baughman: That was the --
William J. Brennan, Jr.: The reason the Ninth Circuit held that was an invalid arrest was that the Ninth Circuit after the fact decided it was invalid --
Timothy A. Baughman: Certainly and that demonstrates that there was, there is split among the circuits because the Fifth Circuit is held to the contrary.
Byron R. White: In which case did you mention Justice Powell's concurring opinion?
Timothy A. Baughman: That was in Brown versus Illinois.
Byron R. White: He was the author of Stone against Powell.
Timothy A. Baughman: Yes he was.
Lewis F. Powell, Jr.: May I come back to the sort of what happened at the time of the arrest did the pat-down occur before or after the arrest?
Timothy A. Baughman: It occurred after the arrest.
Lewis F. Powell, Jr.: After the arrest.
Timothy A. Baughman: Yes.
Lewis F. Powell, Jr.: And would you state again exactly what the issue is before us is the validity of the ordinance before us in this case.
Timothy A. Baughman: I believe it is, it is not necessary ultimately for this court to decide that issue to decide that Phencyclidine is admissible against respondent in this case because this court could hold that that even if the ordinance is unconstitutional, Phencyclidine is admissible because either the arrest was valid or because the exclusionary rule should not apply to this conduct in any event and therefore not reach the constitutionality of the ordinance, it then being relevant but --
Lewis F. Powell, Jr.: We could hold that there was probable cause for this arrest and the search would have been incident to that arrest and would end the case?
Timothy A. Baughman: I believe it would the --
William J. Brennan, Jr.: And that is your primary understanding --
Timothy A. Baughman: That's my primary --
William J. Brennan, Jr.: Understanding that this was in ordinance duly enacted by the City of Detroit that there was a reasonable cause believe that the respondent was violating that ordinance and that therefore the policemen arrested --
Timothy A. Baughman: There was no Fourth Amendment violation occurred.
William J. Brennan, Jr.: And that your submission is a valid arrest without reference to whether or not some court, this court or some other court might subsequently find that ordinance to have been invalid.
Timothy A. Baughman: That's correct, that is our first position.
William J. Brennan, Jr.: That's what I thought.
Warren E. Burger: In other words you're standing on the presumptive validity of the ordinance.
Timothy A. Baughman: We're standing on the proposition that that even if a person cannot be convicted badly for violating a penal statute when he is arrested before that finding of unconstitutionally occurs upon probable cause to believe he violated it that no constitutional violation has been committed by the officer.
Warren E. Burger: If that were not so I suppose the officer would be subject to leisure to suit for unlawful arrest.
Timothy A. Baughman: He may have a good faith defense on the civil suit but then the suit maybe brought against him, that's possible.
Lewis F. Powell, Jr.: If we were to reach the constitutional question, do you see any Fifth Amendment problem here, you discussed the Fourth Amendment, is there a Fifth Amendment problem with the respect to an ordinance that allows an officer who makes a crime to decline to identify oneself or when an officer is arrested for any purpose.
Timothy A. Baughman: I don't believe there's a Fifth Amendment problem here and we rely heavily on the cases from the California courts which are cited in our brief.
Lewis F. Powell, Jr.: What about Miranda?
Timothy A. Baughman: Well there, in asking someone to identify themself under these circumstances, a person is not being compelled to give incriminating information I think California versus Byers is somewhat on point although I think the facts are stronger in this case, in California versus Byers that only did a person identify himself but by so doing they indicated that there were a person involved in an accident and this court indicated there that identification is essentially a neutral act. This person has just been asked to identify himself and not indicate that he's in a accident or any other provision.
Lewis F. Powell, Jr.: Not in Byers to a criminal case situation would you or not Byers involved automobile accident.
Timothy A. Baughman: Yes, but it was a criminal violation to fail the stop at the scene and leave your name and address that was a penal statute. In this case, the person is just asked to give their name, name is not incriminating this, the government can obtain a person's name in any other context. They can get it through -- send out jury questionnaires to perspective jurors, tax forms, census forms. It's a multitude of ways in which the government can compel a person to give up their name, a testimony in a courtroom person maybe called and --
Byron R. White: One of the cases held or do you know many cases where there has been a Terry stop has anyone ever held that as soon you'd stop and make a Terry stop you must get Miranda warnings?
Timothy A. Baughman: I'm not aware of any such cases. It is our position that there's not a Fifth Amendment problem because no testimonial information is compelled from a person in this situation. Now, it may be possible to conceive of circumstances where other statutes require an identification in different context may raise self-incrimination problems.Although I'm hard put to think of any but I don't think that this statute raises such problems. I think the California case is correct in this point.
Byron R. White: Mr. Baughman, at the time the officer first approached the respondent, was there a reasonable cause to believe he was engaged in criminal activity?
Timothy A. Baughman: I believe there was responsible cause to believe criminal activity.
Byron R. White: What criminal activity by the respondent?
Timothy A. Baughman: Well, there are several possibilities but I think the officer had at least a reasonable suspicion that either consensual or forcible criminal sexual conduct may have been afoot. I think once he observed the respondent in the alley.
Byron R. White: Is there anything in the testimony about that?
Timothy A. Baughman: No, there's not.
Byron R. White: That's just your supposition that found in the alley -- you might have assumed it.
Timothy A. Baughman: That's my supposition from the, the women being in the alley taking her pants down and --
Byron R. White: But her purpose was explained to something quite different.
Timothy A. Baughman: Well, that of course that occurred after the incident, they had stopped.
Byron R. White: As soon as they asked her.
Timothy A. Baughman: I think the stop had already occurred at that point and under the ordinance then the officers were entitled to ask for identification.
Warren E. Burger: Terry authorizes the stop.
Timothy A. Baughman: Yes.
Warren E. Burger: On the basis of facts observed by the officer.
Timothy A. Baughman: That's correct.
Warren E. Burger: And you're saying that what the officer observed gave him all the right to make a Terry.
Timothy A. Baughman: That's correct and that the ordinance then gave him the right to arrest for the violation of the law that the respondent committed by not identifying himself.
William J. Brennan, Jr.: Well the purposes to stop under Terry must be to search the stop being for weapons was --
Timothy A. Baughman: That assumes also that there's a reasonable, further reasonable suspicion that he's armed and dangerous. I don't believe --
William J. Brennan, Jr.: That's what Terry's about.
Timothy A. Baughman: That's correct.
William J. Brennan, Jr.: Based on suspicion that he is armed in dangerous and the stop is for the purpose of searching him for weapons and if necessary disarming him, is that correct.
Timothy A. Baughman: It's also for investigation I believe, the stop itself. If risk is for protection, the stop is for investigation. This court has said several times in Terry and Adams versus Williams that the stop in order to determine identity maybe the wisest --
William H. Rehnquist: Certainly Martinez-Fuerte which was I think the last round of the alley search cases, says that you can detain under particular circumstances without regard to reason to believe that the person is dangerous if you suspect an offense.
Timothy A. Baughman: Yes, I think the detention portion of Terry I believe is for investigation, the frisk only occurs and can only occur if there is a further reasonable suspicion that the person is armed and dangerous, and then you can frisk but the stop is an investigatory stop I believe.
William J. Brennan, Jr.: And you say, what would the investigator stop.
Timothy A. Baughman: Well, in this case --
William J. Brennan, Jr.: In a justification for it.
Timothy A. Baughman: In the general context.
William J. Brennan, Jr.: In this case.
Timothy A. Baughman: In this case, the officers when they had the complaint of two drunks in an alley and pulled into the alley and saw respondent and the woman taking her pants down and I think that two possibilities were consensual or forcible criminal sexual conduct. I think they at least had a duty to proceed into the alley and investigate what was occurring.
William J. Brennan, Jr.: Well, that's why you said two possibilities.
Timothy A. Baughman: That's two.
William J. Brennan, Jr.: Forcible or consensual.
Timothy A. Baughman: Forcible or consensual, there are varieties of statutes on either point.
Byron R. White: He was standing there and he was fully clothed?
Timothy A. Baughman: That's correct.
Lewis F. Powell, Jr.: Public drunkenness is an offence in Detroit?
Timothy A. Baughman: It is no longer a criminal office, it was at that time, there is no new set of statutes that deal with that situation. I would point out that openly it did not appear that respondent was drunk, just the women.
William J. Brennan, Jr.: Just the women.
Timothy A. Baughman: Just the women appeared to be drunk after the investigation occurred. I would like to return just for moment to the application of exclusionary rule in this case and turn to the question of what would not apply in the exclusionary rule to these facts, I mean if this court were to hold that the arrest under the ordinance was a violation of the Fourth Amendment. We submit that it would not result in lawless police conduct, but in police continuing to do their duty to enforce the violation of ordinance when they occur. If anything it would deter a police officers to not act as courts reviewing legislation before they decide whether or not to enforce it. Now if the rule were to be applied to these facts, what would it mean. I believe that hopefully its application should not and would not alter future police behavior. For the police did that which we would expect him to do and which we want them to do in the future. As Mr. Justice White stated in his dissent in Stone versus Powell, that excluding the evidence in these sorts of circumstances can no way affect future police conduct unless it is to make the officer less willing to do his duty. Now this court and I think wisely so and legislatures also wanted to maximize control of the police officers, to reduce as low as possible their area of discretion without keeping them from operating at all. We want suicidal control of their actions, but the exclusionary rule was applied in the case, exactly the opposite affect would occur than the exclusionary rule seeks to achieve for the officers would then have unbridled discretion to decide what laws they are going to enforce before they enforce them and I don't think that is a result once the exclusionary rule is attended to accomplish. If then there is no affect on future police behavior, if there is no removal of any inducement to violate the Fourth Amendment and I submit plainly there would be no removal of any inducement in this case, in suppressing the truth in the criminal proceeding will occur and nothing will have been gained. I would also like to briefly point to the argument from judicial integrity on which I believe respondent heavily relies. This court has already held that judicial integrity is not offended if law enforcement officials reasonably believe in good faith that their conduct is in accordance with the law, the time they act even if subsequent decisions hold that their conduct was not permitted under the constitution and here the police acted as we would want them to act when a violation of the law occurs in their presence. Since the trial and is a search for truth, to exclude the truth in the absence of an insolent use of police authority, in the absence of achievement of any affect on future police behavior, I submit as itself in front to judicial integrity. And we have for the purposes of argument here, assume that the ordinance is unconstitutional but as I've indicated on the merits we do not concede that that ordnance is unconstitutional and I would point out that I believe looking at the revision only for clarification purposes that it does, the ordinance has three parts. There is the stop portion which I have discussed. There is a substantive offence portion which makes it a crime to refuse to identify oneself and also makes it a crime to refuse to provide verifiable proof written or oral of that identification. The inability portion of the statute, which Justice Stevens referred to I believe is separate from the criminal portion. For person rather than refusing to identify himself is unable somehow to provide verifiable proof, he maybe detained into as identification is verified and then he is to be released. This portion of the ordinance is very similar to the Uniform Arrest Act, which is cited in our brief which allows two hour detention to similar circumstances and I believe that portion is not a issue in this case, this is not an inability to indentify this is a refusal to indentify case. Now the key question it seems to me is whether or not the government can make this conduct criminal, refusal to identify. I have already stated that I do not believe there is a Fifth Amendment problem, I think the key question is whether or not any right of the respondent is violated by the government making this conduct criminal and the only one that I can, that comes to mind is possibly a claim of an interference with the Right to Privacy. It is our position that there is a governmental interest served in allowing and making this conduct criminal and I think this is a Fourteenth Amendment due process question--
Byron R. White: You wouldn't suggest that, you could make a criminal refuse to give their name to any officer who just happens to stop you in the street.
Timothy A. Baughman: No, I would not and I would point out this is a carefully circumscribed ordinance which limits that authority to when there has been a voluntary stop. Only in that circumstance can a officer demand identification and only in that circumstances, it is a crime to refuse, not any one on the street can be stopped.
William J. Brennan, Jr.: Do you say the protection against the compulsory self-incrimination is not involved, why?
Timothy A. Baughman: Because the giving of one's name is a neutral act --
William J. Brennan, Jr.: Well it may not be, I mean what if name is John Dillinger?
Timothy A. Baughman: Well, the fact he was John Dillinger--
William J. Brennan, Jr.: Likely not because John Dillinger is --
Timothy A. Baughman: Well, that mean it was apprehension, but the fact that he is indentified as a person who he is, is no more incriminating in taking his finger prints, his blood his hair, other his handwriting example or other activities this court has held are not testimonial. A link in a chain to conviction as this court held in Byres leading to his apprehension does not mean that the information he imparts as testimonial can be used against him. I don't believe he is compelled to incriminate himself although he is compelled to give information. Persons are compelled to give information by the government all the time.
William J. Brennan, Jr.: Well, aren't there cases arising under the constitutional guarantee against compulsory self incrimination which protect a witness from even giving his name.
Timothy A. Baughman: I am not aware of that.
William J. Brennan, Jr.: On the witness stand.
Timothy A. Baughman: If it is conceivable under the circumstances that his name alone would be incriminate him that by which --
William J. Brennan, Jr.: And that you conceive of such a situation existing?
Timothy A. Baughman: Not under these not under--
William J. Brennan, Jr.: If his name is John Dillinger or Al Capone transferring his --
Timothy A. Baughman: That he is, may subject into prosecution but not his name itself is not incriminating piece of evidence.
Warren E. Burger: In other words that may furnish probable cause for his arrest, but it doesn't necessarily incriminate him, that's your position.
Timothy A. Baughman: That's my position, I believe that's what the California Courts have held and I think California v. Byers would support that proposition.
Byron R. White: Mr. Baughman you seem to assume that if here were no criminal connection it would be unconstitutional for the ordinance to require or to authorize a police and to just go up to a citizen in the corner right in front of the court house, say what's your name.
Timothy A. Baughman: No, I think any officer can ask that to any citizen but he can't arrest --
Byron R. White: But it could a make a crime for the citizen to refuse to tell him. You say it --
Timothy A. Baughman: I don not believe that legislature can make it a crime to refuse to answer that question.
Byron R. White: Why not?
Timothy A. Baughman: Upon no other facts.
Byron R. White: What's the constitutional objection to that statute?
Timothy A. Baughman: Well, I think that it's just a Fourteenth Amendment due process question is whether a governmental interest to serve and whether the means employed are recently related to the end. If the end as I see in this case is the same end that Terry talks about effective crime prevention and detection. I don't believe that the means employed in that case would be recently related to achieve in that end and also I think that the Fourteenth Amendment due process cases state that the means cannot be unduly impressive on individuals, and I believe that probably it would be unduly impressive, if you do not limit it at least to the Terry situation.
Byron R. White: You would say it's a due process question.
Timothy A. Baughman: I believe the constitution of the ordinance says yes.
Byron R. White: Wouldn't there be a Fourth Amendment issue though if the, without any reason whatsoever the officer went up to a person and detained him while he ask him?
Timothy A. Baughman: That would be a Fourth Amendment question but I don't believe that's what's before us here.
Byron R. White: If he walked up and walked along side of him, and just followed him along and asked him what his name was.
Timothy A. Baughman: That he could I think any citizen --
Byron R. White: And you can do certainly that there is no problem there.
Timothy A. Baughman: No.
Byron R. White: Identity if the person said no I give it you and then if he arrested and you think then there is a problem.
Timothy A. Baughman: Then it will be a problem even if there was a statute I think certainly without a statute it could be a problem.
William J. Brennan, Jr.: Even though there but you say statute or ordinance.
Timothy A. Baughman: Yes.
William J. Brennan, Jr.: Making it a criminal office for a person to refuse an inquiry by a police officer, knowing him to be police officer, what is your name would that would be a invalid statute or ordinance?
Timothy A. Baughman: Assuming without any Terry basis just anybody on the street, it mean, I am not saying it would for certain, I think there would be a much more problems with that ordinance than this one.
William J. Brennan, Jr.: Why?
Timothy A. Baughman: Because I do not, because the end the effective crime prevention and detection I do not think it would be reasonably related to the means stopping anyone on the street to ask them their name as it is in this case and I think that might be unduly impressive on individuals, which is also a due process test.
Byron R. White: I think when the draft was enforced that was a violation of --
Timothy A. Baughman: No.
Byron R. White: If an officer walked up to somebody and said let me see your draft card and person said awfully sorry, but it's none of your business. If there was a statute, that made that a crime, would that be?
Timothy A. Baughman: No, there maybe, there maybe there is a different governmental interest served there when you have a request for certain document as the -- it's not effective crime prevention and detection that's been served in that case it's the enforcement of the draft laws and that might be a different circumstance.
William J. Brennan, Jr.: Well the Court of Appeals of Michigan in this case had, what was wrong with this ordinance was that it seeks to make criminal conduct which is, make criminal conduct which is innocent, but that's true with every criminal statute, it's innocent to drive over 55 miles an hour on a highway and the correct statute tells you its criminal does it?
Timothy A. Baughman: Any law making conduct which is not an element say criminal makes criminal conduct which is innocent. So I don't see the point of the Michigan decision in that regard.
William J. Brennan, Jr.: Well that's really, I think that's -- arrest of that doubtful validity of a statute such as we have hypothecated, that it makes criminal conduct which is, was before this ordinance was passed was innocent conduct.
Timothy A. Baughman: That's --
William J. Brennan, Jr.: Why is that, I mean isn't that true with every criminal statute -
Timothy A. Baughman: It is true of every criminal statute.
William J. Brennan, Jr.: Well, this one believes in natural law of some kind.
Timothy A. Baughman: That's correct. Thank you.
Warren E. Burger: Mr. Howarth.
James C. Howarth: Mr. Chief Justice and May it please the court. The position of the respondent in this case which was also the position of the Michigan Court of Appeals and a position not reached by the Michigan Supreme Court is that the particular case before the bar involves the one-on-one search of an individual American citizen by the name of Gary DeFillippo who in September of 1976 was standing harmlessly on a back street of Detroit. In making that statement --
Warren E. Burger: By doing that they were rejecting the Terry type of situation were they were not -- they were saying this was not a Terry stop.
James C. Howarth: Certainly it was not a Terry stop and it was --
Warren E. Burger: What time of the day or night was this?
James C. Howarth: 10:00 PM, it was at 10:00 o'clock at night, but it was made very clear in the cross examination of the police officer, Officer Bednark at the preliminary examination that there was no fear of weapons that the arrest was being made for no other reason other than the fact that Mr. DeFillippo did not satisfy the particular standards of that police officer regarding his identification. We would submit that the statement of facts which Mr. Baughman has presented to the court while those statements can be interpreted from the facts it can be interpreted from the some what sketchy record before us that Mr. DeFillippo did indeed attempt to identify himself and I would like to clarify that. Certainly Mr. DeFillippo in a city, the size of a City of Detroit would not know the police officer personally. By stating to Officer Bednark, I am Gary DeFillippo, if he certainly did not have with him a driver's license, that statement would certainly not satisfy this ordinance if Officer Bednark said, well, I don't know that you are Gary DeFillippo, you don't have some piece of identification a draft card, you don't have a birth certificate, you don't have a credit card. Now Gary DeFillippo allegedly talked about the subject of a Sergeant Mash. The question I think that remains unresolved is what did Gary DeFillippo actually say, I don't think that that has ever been clarified because the police officer perceived at first Mr. DeFillippo to say I am Sergeant Mash, the police officer admitted subsequently that Mr. DeFillippo may well have said to him, I work for Sergeant Mash or I know Sergeant Mash. There are actually three explanations to the two questions.
Warren E. Burger: Were any of these accurate?
James C. Howarth: Yes Your Honor. As a matter of fact although the question was not explored fully at the preliminary exam stage Officer Bednark was asked whether in fact there was an Officer Mash, there is an Officer by that approximate name working for the Detroit Police Department and if I could be allowed, an informal offer of proof before this court.
Warren E. Burger: Well you can't offer a proof before this court counsel.
James C. Howarth: Alright but the question having been was that in fact accurate, I wanted to answer by responding although it is not in the record that there was certain proof that Mr. DeFillippo did in fact work for Sergeant Mash.
William H. Rehnquist: Mr. Howarth on page 12 of the petition for certiorari, the first page of the opinion of Michigan Court of Appeals which is the court that laid down the rule that we are reviving here, I take it. The court says, when asked for his, defendant did not appear intoxicated but when he was asked for his identification he replied that he was Sergeant Mash, a Detroit police officer, when asked for his badge number defendant replied that he was working for Sergeant Mash. Now that's the hypothesis we have to work from here, isn't it, even though perhaps the Court of Appeals might have found it differently, had the case been argued different.
James C. Howarth: I would agree with that. The only point that we make on that is that it is not 100% certain that Mr. DeFillippo did in fact continue to represent to the officer that he was in fact a fellow Detroit police officer.
Warren E. Burger: Are telling us we should not accept what Mr. Justice Rehnquist just read to you out of the opinion.
James C. Howarth: No I am not, what I am --
Warren E. Burger: Either accept it or we don't, and if we accept it we can't accept any of your hypotheses.
James C. Howarth: What I would say merely is that the joint appendix filed with the court makes three references to the answer given by Mr. DeFillippo. One, I am Sergeant Mash, two I work for Sergeant Mash and three, I know Sergeant Mash and the only that we make is that it is not crystal clear exactly what response Mr. DeFillippo was making to the police officer.
Warren E. Burger: Well would you say that at that time and in those circumstances in an alley, after 10:00 o'clock at night, presumably after dark that the police officer's suspicions were being aroused by at least the ambiguity that you are suggesting.
James C. Howarth: The police officer could have been suspicious. I have no problem with the fact that the police officer may have been suspicious and may have had his suspicions aroused as to who in fact is this man. However we do point out that we do not believe that the record would indicate the criminal activity portion of the argument which Mr. Baughman makes. Mr. DeFillippo was not shown to even be in close proximity to the young lady. Mr. DeFillippo was not shown to be doing anything which had a sexual overtone about it.
Byron R. White: Don't you agree that the Michigan Court of Appeals proceeded on the basis at least on the assumption that there was reasonable suspicion for a stop and then also proceeded on the assumption that there was probable cause to arrest under the ordinance and then struck down the ordinance.
James C. Howarth: They may have although Mr. Justice --
William H. Rehnquist: Why should we independently make some factual determination that's never been made in the state courts?
James C. Howarth: The difficulty--
Byron R. White: That have been passed on.
James C. Howarth: The difficulty that I have had with this particular proposition and has been pointed out in the brief, in the State of Michigan probable cause is not sufficient to arrest for an ordinance violation, an officer must have actual proof of the existence of an ordinance violation. This is not a felony.
Byron R. White: That may be so but the, I don't know, suppose the Michigan appellate court would just unnecessarily breach the constitutional question then would abide on by these preliminary questions, wouldn't they?
James C. Howarth: Certainly the Michigan Court of Appeals went directly to the constitutionality of the ordinance. And it has not yet this morning been discussed the problem of the particular vagueness of the ordinance in question which is what I would like to turn to. The Michigan Court of Appeals, while they did find that the statute was perhaps overbroad and then use the terminology that the statute, the ordinance made criminal what was otherwise innocent conduct, I don't believe and I would agree with Mr. Baughman that that in and of itself would not be a sufficient reason to strike down the ordinance. However, we would submit that when a statute takes very presumptively innocent conduct such as a person walking from his own home to go up to the corner to buy a newspaper, that when a statute can make that conduct potentially illegal it must do so in terms which are clear, in terms in which the ordinary man of average intelligence will have no difficulty understanding and we submit that the Detroit common counsel in August of 1976 in passing this particular ordinance did not set any such standards. The standard in the ordinance itself uses the term identification without any explanation of what will be sufficient or what will be reasonable identification. I would submit that there are many citizens in the city of Detroit who by their age or by their lack of a particular occupation are going to be unable to have a really much of any identification at all. This ordinance as a matter of fact was passed simultaneously with a curfew ordinance in the city of Detroit and when one reads the preamble to the ordinance, one sees that this ordinance was aimed at the curbing of juvenile gangs in Detroit. There are going to certainly many people who are 12 or 13 years old who could be on the streets of Detroit and be unable to provide any identification whatsoever. There are going to be many people who will substantially older than that, who will happen not to have their drivers license with them, or happen not to carry a birth certificate with them. Those people should they be unfortunate enough to be standing innocently in the area of suspicious activity, stand to be arrested by Detroit Police officers. The ordinance also talks in terms of unable to provide and refuse to provide. You maybe detained in either instance under the Detroit ordinance, certainly you maybe arrested if the officer feels that you have refused to provide identification, you maybe detained for merely being unable to, therefore a person who himself was the victim of a crime will had his wallet taken. A person who is on a public beach, in a bathing area, these people will probably not refuse to provide identification to police officers, but clearly they would be unable to provide identification to police officer.
Warren E. Burger: But you don't need a document to identify yourself do you?
James C. Howarth: That is unclear under the Detroit ordinance. The ordinance when originally written and the ordinance that we deal with today did not discuss whether the identification need be written or oral, however there was evidence before the Detroit Common Counsel in the way of testimony on the day that the ordinance was passed, showing that some of the proponents of that ordinance felt that written identification would be required.
Potter Stewart: That is true that the ordinance makes criminal only a refusal not an inability.
James C. Howarth: That is correct, but it would allow a detention.
Potter Stewart: And there is a difference.
James C. Howarth: That is correct.
Potter Stewart: A person in a bathing suit, you can and ask him his name, he just gives you his name you ask him for his driver's license, he says I am sorry I don't have my driver license in my bathing suit, that's not a refusal.
James C. Howarth: No, but it would be an inability and it could cause his detention.
Potter Stewart: But an inability is not criminal under the ordinance.
James C. Howarth: No it would not.
William H. Rehnquist: Then the predicate for all of this is reasonable cause to believe that behavior of an individual wants further investigation and if you define that as a grounds for a Terry type stop, you have certainly eliminated a lot of people from the purview of the ordinance, haven't you?
James C. Howarth: You have Mr. Justice Rehnquist eliminated many people but certainly not all people because anybody who is in the vicinity of criminal activity might be considered to be in a suspicious circumstance, such as Mr. DeFillippo. We would concede that the young lady in question was almost undoubtedly engaged in some type of illegal activity. I think the actual arrest was disorderly conduct due to consumption of alcohol. However, Mr. DeFillippo could have been an aider and abettor in a situation of public intoxication.
Warren E. Burger: How many other people we nearby in this dark alley?
James C. Howarth: The record is unclear, the record merely states that the officers observed two people.
Warren E. Burger: Well, then that means up here that there were only two people on this record and the court has so indicated that Michigan Courts have taken that for granted?
James C. Howarth: The answer which I gave earlier stating that many people could have been involved would not necessarily apply to the particular situation in DeFillippo, but in many situations which could occur.
Warren E. Burger: We are only treating one situation here now.
James C. Howarth: I understand. I merely I am addressing that to difficulties with the application of this ordinance generally, that it could be used in many ways to cause wholesale arrests of people who are in the vicinity of what was suspicious criminal activity, which is one of the potential First Amendment problems with the ordinance.
Warren E. Burger: Well, of course, if we only put it this way the question in Detroit or Michigan can people be detained as material witnesses?
James C. Howarth: I am not familiar with any material witness statute in the State of Michigan which would allow detention of people on the street, however applying your question --
Warren E. Burger: If police officers don't get the witnesses then and there very often the odds are they won't get them at all.
James C. Howarth: That is correct the and certainly, if this had been a felony arrest as opposed to misdemeanor arrest, the officer would have the obligation to produce res gestae witnesses and Mr. DeFillippo could have been considered a res gestae witness to whatever crime the young lady was being arrested for, but the young lady arrested for a misdemeanor and there is no res gestae rule in the State of Michigan which requires the police officer to ascertain the names of all parties in the presence of a misdemeanor arrest.
Lewis F. Powell, Jr.: Mr. Howarth, part three of your brief you state and argue that the Detroit Common Council lacked good faith in enacting this ordinance.
James C. Howarth: Yes.
Lewis F. Powell, Jr.: Is there any evidence in this record to support that rather serious charge.
James C. Howarth: The evidence in the record comes form two sources. It comes generally form the way in which this particular ordinance was passed. The particular emergency and response to --
Lewis F. Powell, Jr.: Is this in the record, is this in the record?
James C. Howarth: That is not in the record and we had hoped to included in the brief before the court under the principle of a brandeis brief and that it is documented material that we have put into the statement of facts, and we had asked the court to consider that. However, what could be considered part of the record is that we know what the ordinance stated and there are decisions, there are two decisions in the Michigan Supreme Court that would indicate that the Detroit Common Council was acting in an area which was preempted by state law to begin with and we had presumed that the Michigan Common Council was aware of the state of law in the State of Michigan, that they could not use ignorance of Michigan Supreme Court decisions principally, the decision in Walsh versus City of River Rouge.
Warren E. Burger: Can you point to anything in any of the opinions of the Michigan Courts that indicate they thought what you are presenting to us now in this brandeis concept was relevant to this case?
James C. Howarth: No and the reason for that Mr. Justice --
Warren E. Burger: Then why we should spend any time considering it here.
James C. Howarth: Well, the issue was raised before the Michigan Court of Appeals, but not reached, and we thought that under the position of this court in Smith versus (Inaudible), a fact that if facts as we allege them are true, that perhaps the matter should be remanded to the Michigan Court of Appeals to reach that question, it has been raised before the Michigan Court of Appeals that there was a state preemption problem involved in this case, that ordinance violations dealing with emergency situations. In other word riots or states of emergency in the cities in the State of Michigan is a matter, which is particularly reserved to the state government and had been so held since the early 1960s and it was raised for that reason.
Lewis F. Powell, Jr.: Was it argued to the Michigan Court that the police officer also acted in bad faith another charge you make in your brief?
James C. Howarth: Yes Mr. Justice Powell we did -- the state. We did state that if one reads the ordinance section which follows the particular ordinance here, that section states that if an arrest is made under Section 52.3, that all the police officer can do is make a pat-down for dangerous weapons. So the officer was specifically excluded under the same law that he sought to enforce to make a full blown search for any fruits of any crimes and yet the officer admitted that he was not making a pat-down merely for weapons but that he was going beyond that and we would maintain that the officer then was in a very similar position to the officer in Sibron versus New York and that he was not looking for weapons as he was allowed to do under Stop-and-Frisk Statute but was in fact looking for drugs and in fact find drugs and that is where we allege that if the good faith issue is to be considered that there is a high potential of a lack of good faith on the officials who put this particular situation into existence. That would be both the counsel and the officer involved. This court has been asked to consider the case of Almeida-Sanchez and how it applies to the instant situation and we maintain before this court that the Almeida-Sanchez decision is actually dispositive of the case at Bar, that there is not an actual difference that can be found. The petitioner has alleged that the difference is that Almeida-Sanchez was a statute which authorized searches and that was as opposed to the ordnance in Detroit, which does not specifically authorize searches but actually defines criminal conduct.
Byron R. White: May I ask you a moment, how you interpret this statement of the appellate court, you can probably explain it. It says that Detroit ordinance sanctions full searches on suspicion without regard for dangerousness of those persons whose activities fall within the vague parameters of the ordinance. Now does it read the ordinance the way you do or not?
James C. Howarth: I think they did not. The ordinance might appear to allow for full searches on suspicion, the difficulty is --
Byron R. White: But aren't we rather, shouldn't we take for granted that what the statute means if such state court has construed it.
James C. Howarth: I don't know that we would necessarily be compelled to accept the ruling of the state court on that.
William J. Brennan, Jr.: Well if you have a lawful arrest, the violation of a valid criminal statute at the time of arrest, you can search that person lawfully.
James C. Howarth: That would be correct under the Robison decision.
William J. Brennan, Jr.: Under established Fourth Amendment law.
James C. Howarth: I would agree with you.
Byron R. White: But apparently, that maybe true under the Fourth Amendment but I thought you were suggesting that the State has in this very ordinance has restricted the officer's freedom to make a full search even if he makes a valid arrest under this ordinance.
James C. Howarth: The following section to the ordinance, the ordinance in question is ordinance number 52.3, the following section is Section 52.4, Section 52.4 is the Section which states that if an arrest is made under Section 52.3.
Byron R. White: That would be if you arrest a person for refusing to identify himself.
James C. Howarth: That is correct as the law now stands. Section 52.4 in time preceded Section 52.3. Therefore when Section --
Byron R. White: But was 52.4 enforced that time this arrest was made?
James C. Howarth: It was enforced, it is still enforced today. It has never been taken off of the ordinance even when Section 52.3 --
Byron R. White: So you are suggesting that under State law this ordinance, this search was invalid even if the ordinance was, even if the ordinance was valid, even if the arrest was valid, the search was invalid because of 52.4.
James C. Howarth: That is correct.
Byron R. White: But that isn't what the Court of Appeals held is it?
James C. Howarth: No, and the reason I believe for that is that the Court of Appeals was correctly holding that under United States versus Robinson, once an arrest is made even for a traffic stop, even for an ordinance violation, this court has held that a full search maybe made --
Byron R. White: Yeah but as far as the Fourth Amendment is concerned but certainly it doesn't say that a state may not restrict the power of its officer.
James C. Howarth: That is correct and we believe that under Section 52.4 the city officers actually were restricted from doing anything other than making a Terry type pat-down.
Byron R. White: Well this, the substance for the possession of which he was prosecuted was found on package of cigarettes after he was taken to the station house, wasn't it?
James C. Howarth: The tin foil packet was found on the scene, tin foil packet was not searched to determine the presence of Phencyclidine until he got to the station house.
Byron R. White: But you think the, do you think the search that found the tin foil went beyond the search that the ordinance authorized for a valid arrest.
James C. Howarth: That is correct. Although it does not go beyond what has been allowed under traditional Fourth Amendment principles announced in the Robinson case. This court has on many occasions faced the situation of a claim or a presumed claim that an officer has acted in good faith under an executive, under a legislative or under a judicial ruling of the state from which the officer comes. To rule that good faith reliance upon executive action, upon legislative action or upon judicial action within the state renders that conduct higher than the Fourth Amendment would require in our position, the overruling of Almeida-Sanchez case, would require the overruling of this court's decision in Berger versus New York and which a wiretapping warrant was specifically allowed under a state statute even though the standards set down by that statute were too vague to be allowed under Fourth Amendment principles would require the overruling of the case of Coolidge versus New Hampshire, the Attorney General warrants which were specially allowed by state statute would require an overruling of at least the reasoning which was presented in the case of Mincey versus Arizona. The reliance and I am certain that had been good faith reliance upon a decision of the highest court in the state allowing an exception to the Fourth Amendment --
Potter Stewart: Well, but there is a difference let's, you are saying that you may, your case has good many familiar names, because I have wrote some of those and wouldn't there be a difference -- let's say a state legislature should say no warrant will ever be required in this state for the arrest or search of anybody. Well that would clearly be contrary to the Fourth Amendment, it will be an invalid statute.
James C. Howarth: That is correct.
Potter Stewart: But here, and therefore an arrest without a warrant would still regardless of that statute would still be unconstitutional unless it were with one, under one of the exceptions of the Fourth Amendment. But here the question is if you have a criminal ordinance on the books that has never been held by anybody to be an invalid ordinance, and a policeman arrest somebody for violation of that ordinance is that a wrongful arrest, that's quite a different question isn't it?
James C. Howarth: I perceive them as being more similar. The question is certainly one of degree as opposed to one of kind. This court has stated that if a state legislature or a town counsel were to pass an ordinance saying that police officers could arrest all suspicious persons that that would not pass constitutional muster. Certainly there will be different gradations of that problem, certain degrees but I think that the case at bar is a merely a case of degree. You have an a statute or an ordinance very much like the loitering statues and you have one that has no standards that a police officer can even rely on in good faith. If the police officer cannot point to some standards upon which he relied the question of his good faith becomes very difficult to ascertain. If you cannot ascertain whether he truly had good faith or not, we might be in a position of saying that since all state statutes and all ordinances are presumptively valid the police officers can make arrest and make full blown searches on any ordinance that's passed until such time as that ordinance can be declared unconstitutional.
Warren E. Burger: Well let's take one that's very specific, speed limit of 55 miles adopted by a State not a Federal and a the car is arrested going 75 miles an hour, is the question of good faith there --
James C. Howarth: There should not be --
Warren E. Burger: This officer is under a mandate to arrest people going over 55 miles an hour isn't it.
James C. Howarth: I agree.
Warren E. Burger: Now suppose that a search of the car disclosed that the car was loaded with heroin. Later if that's determined by this car, the 55 mile an hour statute is unconstitutional as an under burden on interstate commerce let us assume does that mean they suppress the heroin in that case.
James C. Howarth: I would think not and the difference being that we will be talking about a statute which I perceive to have been something this court has discussed as a technical violation of the constitution as opposed to what this court talked about in Sibron versus New York being those statutes which themselves trench on Fourth Amendment rights. The hypothetical case which you have presented would certainly not trench on any Fourth Amendment rights directly in the statute. We submit that the Detroit ordinance did so by setting up a vague, setting up an ambiguous statute, setting up one that did not have standards and which allowed police officers at mere whim and caprice to make arrest under a speeding statute of course a police officer would have to be able to point to the fact of why specifically the person was going over the speed limit, how he determined that and I think that he would have excellent standards upon which he could base that determination.
William J. Brennan, Jr.: The vagueness and over breath don't have anything to do with the Fourth Amendment -- with due process?
James C. Howarth: Vagueness and over breath can.
William J. Brennan, Jr.: They have to do with due process.
James C. Howarth: They are due process arguments. The standard however is that since a warrantless arrest depends on the validity of the arrest to determine probable cause when the arrest cannot ever be found to be valid because there are no standards then you have a warrantless arrest which is in itself unreasonable.
Byron R. White: All you are suggesting is that any statute that happen to pick up the standard that Terry announced would be unconstitutionally vague.
James C. Howarth: The standard would not deal with the Terry standard as much as would deal with the identification standard which is the, which is the real problem.
Byron R. White: You aren't defending the other part then of the Michigan Court of Appeals opinion on vagueness.
James C. Howarth: The vagueness dealing with the fact that the --
Byron R. White: Standard, no standard.
James C. Howarth: The standard dealing with, whether the citizen will know when he must provide identification no I do agree with the Michigan Court of Appeals on that. It must be --
Byron R. White: Well that just must means, that just means that the Terry standard is unconstitutional.
James C. Howarth: I don't know that the Terry standard gave no recognition to the fact that a citizen must answer questions and I have -- we have no objection with the right of the police officer to ask questions of the citizen, it the question of whether the citizen must be compelled to answer.
Byron R. White: I might also ask or say that your 52.4 just says, seems to me that if, if you make a kind of a stop, a 52.3 contemplate so you may pat him down if you have reasonable cause to believe that he is dangerous. It doesn't say that if he refuses to identify and then you arrest him that you can't make a full search.
James C. Howarth: Well, we had interpreted it as being the really the arrest --
Byron R. White: Well, I know apparently you do interpret it that way, but that certainly isn't the way the Court of Appeals interpreted it.
Warren E. Burger: Thank you gentlemen. The case is submitted.