Warren E. Burger: We’ll hear argument in number 82, Elkanich against the United States. Mr. Miller, you may proceed whenever you are ready.
Charles A. Miller: Thank you. Mr. Chief Justice and may it please the Court. This case and the two with it follow: present the question of the extent of retroactive application of the decision in Chimel versus California, decided in the 1968 term. Chimel dealt with the permissible scope of a search without a warrant, but pursuant to a lawful arrest. The Fourth Amendment has long been understood to permit a search without warrant as an incident to a valid arrest. The question in Chimel was how far can a search go and still be deemed an incident to a valid arrest. In that case, the court held that to be incident to an arrest, a search must be confined to the person arrested or the immediate vicinity from which he might reach weapons or destructible evidence. Any search beyond the immediate person or the immediate vicinity without a validly issued search warrant would violate the Fourth Amendment.
Warren E. Burger: Does it encompass anything that he can see? Does it encompass anything which he can see the place [Voice Overlap] status, he the defendant, the searcher?
Charles A. Miller: The searcher? I think that there is other doctrine not necessary emanating from Chimel that holds that if the officer is legally on the premises, he may seize any contraband or other fruits of crime that are visible to him.
Warren E. Burger: Pistol or an apple?
Charles A. Miller: I think a pistol, yes. Now in Chimel, the rule of that case was applied to invalidate a search of an entire house in which the defendant was arrested. In the present case, the convict, the petitioner was convicted on the basis of evidence seized at the time of his arrest when the rushing officers have no warrant. He was arrested in his apartment, and after entry into the apartment and arrest of petitioner, the arresting officers proceeded to search throughout the apartment. And in the course of their search, they uncovered the hidden in the closets and kitchen a certain evidence that was material to petitioner’s conviction. Now concededly, the search without warrant in this case went far beyond the petitioner’s person or the immediate vicinity of his arrest, and the Government makes no claim now to makes no claim in this case that the search was incident to the arrest within the meaning of that term as defined in Chimel. The Government does urge however that the search here ought not be deemed a violation of the standard announced in Chimel because there were exigent circumstances that justified a broader search without warrant, then when otherwise be permitted under the Chimel doctrine. We treat this point in our reply brief and I -- it warns just a few words this morning. The exigent circumstances alleged here by the Government where that the petitioner’s wife was present in the apartment at the time of his arrest, and that she might disposed of incriminating evidence if a search and seizure where not immediately undertaken. This explanation for the warrantless search is virtually identical to the justification for a similar warrantless search of a dwelling in last year’s case of Vale against Louisiana. The argument was rejected in that case. There the court held that the requirement for a warrant for a search of a dwelling was subject only to a few well recognized exceptions, and that the asserted justification advanced there which is identical to the one advanced here did not fall within one of those exceptions. Now, the Government contends that the present case is different because the officers here were concerned that petitioner might be forewarned of his an imminent arrest and flee, and that this justified the officers in making the arrest and the search without first securing the warrant. Now, the basis of this claim is that an alleged middleman in the narcotics dealings in which petitioner is accused was in custody and the he knew, he the middleman, knew that the officials were seeking his supplier, and that he might therefore forewarn his supplier by telephone. We think this claim to be insufficient on the facts. The alleged middleman here had been in custody for two days prior to the arrest of petitioner. Had he been disposed and able to forewarn his supplier, he would have done so for long before petitioner was arrested. Moreover, it does not seem likely to us that the middleman’s captors would have allowed him unrestricted access to a telephone for the purpose of forewarning accomplices of impending arrest.
Thurgood Marshall: What about the Government’s point that his common-law wife could very well destroy it after he was arrested?
Charles A. Miller: Well Your Honor, that’s the point that was -- that is precisely the point made in Vale by the arresting officers in that case. And the court said that’s an insufficient ground for not securing a warrant before making the search. And that’s exactly the point we make here.
Potter Stewart: Is this -- this is here on direct review of.
Charles A. Miller: No, Your Honor, this is here on collateral attack -- this is collateral review. This conviction became final and cert was denied I think in 1967, 1964 excuse me, I’ll correct it. In short, on this aspect of the case which I’ll leave, the Government -- we don’t believe has shown that the arresting officers in this case were justified in searching petitioner’s apartment without first securing the warrant. We think at beyond serious dispute that the search and seizure in this case cannot pass master under the standards for searches incident to arrest that were announced in the Chimel case. And so we come to the question of whether Chimel should be applied retroactively in this case which is I said Mr. Justice Harlan arises on collateral review of petitioner’s conviction. We begin with the basic rule of Weeks against United States and its progeny that a physical search of the person or his dwelling must be pursuant to a valid search warrant issued by a magistrate upon a showing of probable cause. Now, there are exceptions to this principle. One of which is that a search warrant may be conducted as -- a search may be conducted as an incident to a lawful arrest. This Court typically decides several cases each year that explicate the basic Week’s rule or its generally recognized exceptions. No one would reasonably suggest that each of these decisions and each term of this Court be given only prospective effect, and we know of no such contention. Indeed, the Government here concedes that this result of automatic prospectivity might result in an intolerable burden of sorting out the effective date of each new ones of the basic rules. Even more intolerable, we submit would be a regime whereby this Court considered separately, and each of these many Fourth Amendment cases whether to apply the case retroactively or prospectively. And yet, we recognized that the court in recent years has limited application of some of its criminal procedure decisions, including some decisions arising under the Fourth Amendment search and seizure provisions, and the question as we see it is therefore in what kind of case, in what class of case should the court make a determination as to whether to apply a criminal procedure decision retroactively or prospectively? Linkletter versus --
Potter Stewart: While you pause a moment, may I ask you perhaps in the brief, but I missed it. What is the -- who is the author of the appendix to your brief, the memorandum?
Charles A. Miller: It was prepared in my office as stated -- I think, we stated this --
Potter Stewart: It probably is, I guess it’s not a --
Charles A. Miller: The outset of the argument --
Potter Stewart: It’s not a published --
Charles A. Miller: Oh no sir, it’s part of our argument.
Potter Stewart: Right.
Charles A. Miller: As we indicated here, the court have not indicated prior to this time a time we follow our brief a disposition to review the entire question of retroactivity. So we didn’t feel that an extended argument on the point was forwarded but then points raised in the appendix did seem appropriate.
Potter Stewart: I understand.
Charles A. Miller: It’s also help to sort out to some of the cases and the argument that now with I am going to make this morning. I do think that Linkletter versus Walker which is the root case in this area does not answer the question that is now before this Court in this case which is when do you make the determination of retroactivity? Linkletter versus Walker sets out standards for deciding the question when the question is presented to the court. It doesn’t reveal when that question is appropriately raised. However, we think that upon reviewing some of the retroactivity decisions including those set forth in the appendix Mr. Justice Stewart that there emerges from those cases, an appropriate test as to when the question of retroactivity ought to be raised. There are seven instances in which constitutional decisions have not been given fully retroactive effect. Each of these decisions involved the extension of a constitutional provision to a wholly new area of activity where it had not been thought previously to apply. For example in the Katz case which was given retroactive, I mean prospective only effect in Desist. The protection of the Fourth Amendment was extended for the first time to electronic eavesdropping or nontrespassory invasions of property -- of privacy. Now in Miranda and Escobedo whose backward reach was limited at Johnson versus New Jersey the right to counsel and police interrogations before as well as after indictment was established for the first time, and in the way Gilbert case which was given prospective only effect in Stovall the right to counsel and lineups was announced for the first time. Similarly, Mapp against Ohio given limited retroactive effect in Linkletter was extension of the exclusionary rule to the states for the first time. The jury cases, the Bloom against Illinois and Duncan against Louisiana which were given prospective only effect in DeStefano, those cases extended the right to trial by jury in all state cases for the first time. Finally, the Griffin case which was given prospective only the effect in Tehan extended the Fifth Amendment self-incrimination provision to comments by the judge for the first time. All of these cases involved in the extension of a constitutional provision to a new area of activity where it have not previously been thought to apply. However, the Chimel decision which is before us today is of a very different nature from those cases that I’ve just canvassed. Chimel does not extend the Fourth Amendment to an area of activity where it had not been thought previously to apply. From the beginning it has been clear that physical searches must meet Fourth Amendment standards, even where deemed incident to a valid arrest so that the warrant is not mandated, a physical search is still within the ambit of the Fourth Amendment. Chimel like many other cases simply added refinement to the principle of law that searches incident to a valid arrest may be conducted without a warrant. Chimel dealt with the dividing line between searches incident to arrest and which need not be accompanied by warrant. And those that meet the Fourth Amendment reasonableness standard because -- I think I said it wrong. Chimel in affect dealt with the dividing line between searches for which a warrant is required, and those for which a warrant is not required but which otherwise meet the Fourth Amendment reasonableness of standard. As a result of Chimel a dividing line was moved somewhat, and so the incident to arrest doctrine has been constrictive.
Speaker: How would you say about the pre-Rabinowitz law and that would Chimel and beyond (Inaudible)?
Charles A. Miller: Well Mr. Justice, the rationale of Chimel was that it was a return to pre-Rabinowitz law, and I would -- without having made a careful review of the facts of each case prior to Rabinowitz, it is hard to say whether the precise -- whether the return was precisely on all force to where the law was before or this to the general area of where the law was before.
Speaker: But on the retroactivity suggest or retroactivity (Inaudible) this is not a 100% clear case before this right from Rabinowitz constitutional.
Charles A. Miller: I think it is clear in the context in which I’ve used this morning that Chimel did not represent an extension of the Constitution to a new area of activity. Even where an arrest was incident to -- even where a search was an appropriate incident to arrest, whether by Rabinowitz standard or by the pre-Rabinowitz standard or by the Chimel standards, it was still within the ambit of the Fourth Amendment. It still had to meet the reasonableness standard. No one is ever suggested that a physical search was wholly unrelated to the Fourth Amendment. Actually, we think that Chimel does not really differ at all from other decisions of this Court, recent decision in which retroactive application has been assumed, and the car search cases are good example. They also happen to deal with the incident to arrest doctrine. In the Preston case in 376 U.S., the court ruled that a search of a car is police custody after the driver had been removed and placed in jail was too remote to be considered incident to a lawful arrest, and consequently, a warrant was required. But last term in Chambers against Maroney, the court held in almost identical factual circumstances that the car search there was incident to arrest. Now, I don’t believe it’s contended by anyone seriously that the Chambers case should not be given retroactive effect and that the stricter Preston rule should --
Byron R. White: (Inaudible)
Charles A. Miller: Well, I understand that I am going to point out later. The court in dealing with Preston and the Chambers case sought to distinguish Preston, and I want to come to that in a moment Mr. Justice White. It is a -- distinguishing cases is one way of limiting their application, as just as overruling a past precedent in other way. But another illustration of the point I now make is the Warden against Hayden in 387 U.S., and I think, this is perhaps even more appropriate example. Here is a case where the prevailing doctrine that seizure of mere evidence of crime was not permitted under the Fourth Amendment was rejected. There had been a doctrine that police could search and seize instrumentalities and fruits of crime, but not “mere evidence.” Well, this Court rejected that distinction in the Warden against Hayden case. Yet I know of no suggestion that Warden against Hayden should be applied only prospectively with the earlier mere evidence rule left on the books to apply the cases that annotated Warden. Now, these examples and others I think illustrate ebb and flow in the -- that is characteristic of decisions interpreting the Fourth Amendment, and Chimel is like those cases. It can’t be distinguished from them and unless there are to be limits on the applicability of every Fourth Amendment decision, an approach that I think would admittedly wreak havoc with the administration of justice. There can be no reason to basis for limiting the application of Chimel. It maybe suggested that Chimel is different because it expressly overruled to prior precedent, the Rabinowitz and Harris cases, and this I think comes to the point that Mr. Justice White was touching on. I respectfully suggest that this would not be a meaningful distinction of the Chimel decision from the other myriad of Fourth Amendment decisions announced every year by this Court. Many of the court’s decision have the effect of dissipating earlier precedents. Sometimes, it’s done by an express overruling. Sometimes by distinguishing a case out of existence or distinguishing it in a way that narrowly limits its ambit. Sometimes cases are discarded without mention at all, and Chambers is a good example because there, the Court did not purport to overrule Preston, but conceded -- but it cannot be denied that the Chambers decision narrows the reach of Preston; there can’t be too much left to Preston after Chambers. Indeed, the Vale decision of last term which I mentioned earlier provides a sort of different illustration to this point. Vale refused to permit a search without warrant of a dwelling as an incident to an arrest of the man standing on the front steps of the door.
Warren E. Burger: Well, there was a little dispute about where he was then, can you?
Charles A. Miller: Well, yes. There was a --
Warren E. Burger: In fact, these weren’t very clear.
Charles A. Miller: He was somewhere outside the front door of his house. He may have been as far as all the way to the street. He may have been one step in the front door. He was on the threshold or close to it.
Warren E. Burger: Well certainly on the figure to the threshold of going into his house --
Charles A. Miller: Yes, indeed.
Warren E. Burger: -- not on the physical threshold.
Charles A. Miller: That’s right. Now the principle of that case cannot be consistent with the underpinnings of Rabinowitz in Harris which were that you can -- as an incident to arrest, search any place within the control of the person arrested, certainly in that situation, his house was within his control. Had Chimel not intervened to overrule Rabinowitz and put it aside? It clearly would have been said that Vale eroded the most, if not all of the basis of Rabinowitz. Yet, there is no indication that Vale is to be applied prospectively only. It’s simply another in the continuum of cases, that add judicial interpretation to the meaning of the basic rule that physical searches must be made pursuant to warrant except were incident to a lawful arrest. Yet, it would be quite anomalous to hold that Chimel which involve a search without a warrant after arrest just inside the door is not to be given retroactive effect, if Vale which involve a search without warrant after arrest just outside the door is to be given retroactive effect. The point is that there is nothing unique about the expressed overruling of a prior precedent that would warrant limiting the effect of a particular new decision. And we think the Gideon case and Jackson against Denno both of which expressly overruled prior precedents yet both of which enjoy full retroactive application. Our further indicate that there is no necessary requirement that a decision which overrules past precedent be given only prospective effect. Now, the Government in this brief has asserted a different test for determining when to consider, limiting the application of new procedural due process rulings and the Government’s test is whether the new decision is a landmark decision. And if it is landmark the Court then may consider given it prospective only effect. That’s the Government position on page 45. With all respect, we submit that this distinction afford no real standard. The term landmark is not an objective standard and provides no basis for distinguishing cases. It cannot be said for example that chambers which altered the prevailing law on the appropriateness of the search of a car incident to an arrest is more or less a landmark decision then Chimel which altered the prevailing law on the appropriateness of the search of a house as an incident to an arrest. The rubric landmark does not answer the question at issue which is to what class of cases should the Court consider given prospective on the application. We submit the only objective distinction that can be drawn that has an effect been drawn in the cases today is between rulings extending the Fourth Amendment and other constitutional decision to new areas of activity where they were previously not applied on one hand and on the other hand, rulings that merely explicate the meaning of a constitutional provision without extending it to a new area of activity. The office of the Linkletter and Desist line of cases ought to be limited to those constitutional decisions where the Constitution has been extended to new areas of activity. For this other cases, the traditional rule of full retroactive application should be observed for any other rule for these cases would ultimately lead to chaos and destruction in the administration of the criminal law.
Potter Stewart: One on factor in a Fourth Amendment case is different it seems to me and considering the question of retroactivity from what it might be in right to counsel cases of something else and that is the -- because the Fourth Amendment talks about unreasonable searches and seizures. And then the question becomes, is it unreasonable search or seizure, if a law enforcement officer makes a search or seizure relying on the settled law as of the time he makes the search or seizure. In other words, it says that even a constitutional violation and for a law enforcement officer to make a an arrest and then incident search and seizure in reliance on the settled law then on the books i.e. Harris and Rabinowitz -- Harris and Rabinowitz is not even a constitutional violation because it is unreasonable search and seizure. It adds a little complication to the simple question of retroactivity in the Fourth Amendment case, does it not? Just simply because of the wording in Fourth Amendment?
Charles A. Miller: Well, I can see that what your, Mr. Justice Stewart, what your question suggests is that what maybe reasonable in 1950 may on the same effects be unreasonable in 1960?
Potter Stewart: That certainly a difficult to say that a law enforcement officer is acting unreasonably when he is acting in accord the then decisional law of this Court under the Fourth Amendment, is it not?
Charles A. Miller: Well, that maybe so but if that where the case then how can one explain the Chimel decision when the officer was acting reasonably by the standard of you just suggested because in accord -- acting in accordance with the Rabinowitz case which was on the books as of the time of the search in Chimel. I realized that you may say, “Well, we have to decide cases and that’s one of the prices we pay for deciding cases.” But I suggest at that that is not a complete answer. I suggest it indeed that answer carries a seized of a broader answer to your question. There are -- Chimel happen to be convenient and that involved a past precedent which was expressly overruled. In the whole range of Fourth Amendment cases, there are many cases that do not present on all force. Facts that previously even before this Court infinite gradations of reasonableness are presented in every case if -- and if an officer could by some hindsight justification point to some earlier decision of the courts from which it could be interpreted that his action was reasonable. Under the suggestion that you just made that would automatically result an affirmance. I think with all respect to Mr. Justice that the reasonableness term is not quite that elastic in the Fourth Amendment area.
Byron R. White: Well, What interest do you think should be given to the final or the interest in return --
Charles A. Miller: Mr. Justice, I haven’t attempted in our brief to go into an extended discussion of that obviously point of finality because it’s been canvass so thoroughly by this Court in recent decisions in such as Kaufman and others. And there are differences of opinion on them as you’re well aware. Kaufman I think establishes the proposition that whatever else maybe said. Notions of finality under layer earlier decisions to this Court are not to be given the same effect, the same exalted position as they once were. Finality isn’t important but this cut across all cases involving retroactivity questions as against finality are the -- is the interest in maintaining in prison or in custody, one who has been convicted in ways which we now determine are contrary to the Constitution. And I think that question is not unique to Chimel but it arises in every case in which retroactivity questions arise.
Warren E. Burger: Mr. Miller, I'm sure you’d agree that if we have an Amendment to the Constitution in far more conventional way, we’ll make Constitution amendments like recent ones. There would be no questions about retroactivity of that amendment unless by its terms is done which isn’t very often likely, is that right?
Charles A. Miller: I'm sure that’s correct Mr. Chief Justice.
Warren E. Burger: But then if the Court makes a marked change, a marked change, in the thrust and scope of Constitution. Why should the rule be any different having in mind Justice Stewart’s suggestion about official reliance?
Charles A. Miller: I think I would agree with you. I think indeed that’s the point I've tried to assert this morning. When there is a distinction that is marked, landmark or whatever word you want -- adjective you want to apply --
Warren E. Burger: I just want to use landmark. That’s use maybe a word not a --
Charles A. Miller: What I'm suggesting is Mr. Chief Justice that a mere adjective like marked, landmark important or other rubric --
Warren E. Burger: I said marked change not marked opinion, a marked change in the thrust and scope of an existing provision of the Constitution.
Charles A. Miller: Well, --
Warren E. Burger: I mentioned that following the same rule of prospectivity as formal and official amendments to the Constitution?
Charles A. Miller: I would say no Your Honor, not I would -- if the result is to extend the constitutional provision to a new area where it had not previously been applied that I would say, yes. But I change that simply -- I change as in Chimel which may or may not be a marked changed but is concededly a change. I would say no because once you agree that a change in the law is -- gives rise to prospectivity or the possibility of it. You inevitably led to the regime where every case must be reviewed for prospective or retroactive application because this Court by definition practically every case changes the law to some extent. This Court doesn’t sit on typical cases. It sits on cases at the edge of the law. It extends or contracts.
Warren E. Burger: Over the years, hasn’t it been a dominant rationale, all the exclusion doctrine that it’s to deter official governmental conduct which is in violation of the Constitution or statutes? The deterrence concept isn’t that -- isn’t that the most constant threads through all the exclusion cases?
Charles A. Miller: I’d say that the certainly in the Fourth Amendment cases, I agree with you. Candor compels to agree with you.
Warren E. Burger: Then how do you -- how does the deterrence concept come in again picking up Justice Stewart’s point? How does the deterrence concept come into play when the action as taken by the officer at the time under Rabinowitz prior interpretations was perfectly covered?
Charles A. Miller: Well, all in the case set in two ways if I may. First, I think we -- there may be some tendency to exalt this notion of official reliance on the decision of this Court and especially it is true in an area like the incident to arrest area which is typified by decisions like Rabinowitz which say that each case return on its own facts. And that the circumstances must govern in every case and we can make no real hard and fast rules. We’ve quoted the language from Rabinowitz in our brief which seems to me to suggests that the -- we can carry at least perhaps to some reasonable extremes the notion that officers were relying on Supreme Court decisions every time they take an action in this area. But beyond that, it seems to me that the notion, the question that you’ve just raised is typical of the questions that are asked when one is applying the Linkletter versus Walker standards. That’s one the questions that is discussed in every case. We suggest that Linkletter versus Walker standards, a Linkletter versus Walker analysis need not and ought not be made in every criminal decisions of this Court because of the destructive effects that it would have -- that would ensue. And so what I'm suggesting is that the Linkletter versus Walker type of analysis ought to be limited to a certain class of cases and I've tried this morning to set out the class of cases which I think it is here before been limited and which ought to be limited in the future. I see my time is up, Mr. Chief Justice.
Warren E. Burger: Thank you Mr. Miller. Mr. Springer, you may proceed whenever you’re ready.
James Van R. Springer: Mr. Chief Justice, may it please the Court. Without anticipating here the argument in the next case which I also be doing for the Government, the Williams case. It may be helpful to take a minute at the outset to outline the issues that are in this pair related cases in the Government’s position and presentation in each of them. The present case the Elkanich case can we think the affirmed on either of two Browns and I think Mr. Miller has acknowledged that at least to the formal letter. First of the search which happen long before Chimel was valid under Pre-Chimel Standards and Chimel should not be applied retroactively here on plenary review. And second, that even a part from that even assuming that Chimel did apply. The search in this case would be consistent with the principles of Chimel in view of the conglomeration of special circumstances that I will discuss in a couple of minutes. In the next case, the Williams case, we similarly argue that the search was valid under the Pre-Chimel standards enforced when the cert was made. The Williams contest that proposition as I think its fair to say, Elkanich does not but we do not argue that the William search would be valid that if it had taken place after Chimel. Accordingly, we urge the Court to affirm the Williams judgment on the sole ground of nonretroactivity of Chimel. Now on this retroactivity issue that’s common to the two cases. They differ in that as I’ve indicated Chimel -- Elkanich comes here on collateral review whereas Williams is here on direct review of the conviction and was in fact pending in the Court of Appeals when Chimel was decided. For reasons that I would go into my argument in the next case, we think that makes no difference since the crucial dividing point for retroactivity purposes should be the date of the search as the Court held in Desist. My argument on retroactivity in the present case will be a simpler one presents in order to prevail on that issue. I think Elkanich would have to convince the Court that Chimel should be fully retroactive without regard to the more delicate questions of dividing. But before I go into the retroactivity question in this case, I would like to turn first to our proposition that the search of Elkanich’s apartment was under all the circumstances, one that would be valid even if it were carried on today. This is a very important proposition for the Government and we asserted here just as strenuously as we do the nonretroactivity point even though it may not be necessary to reach it depending on how the Court decides the case. On the search question, we start with the premise which is not contested that this was a search made pursuant to a valid arrest without a warrant. In fact, the validity of the arrest was the question that was litigated on direct review in 1963, 1964. The Court of Appeals held that there was ample probable cause to arrest Elkanich in his apartment. This Court denies certiorari and as I indicated, I think there's no issue as to the validity of arrest here on collateral review. We acknowledge however, that the search of the apartment of Elkanich’s apartment was more extensive than what Chimel indicated, would routinely be appropriate as an instant to an arrest without a search warrant in the future. It is not simply a search without commit himself and the area within his immediate control where he could obtain weapons or destructible evidence. We acknowledge this was a search by several narcotics agent and at least two of the three rooms of Elkanich’s small apartment and then it went on for some time as --
Potter Stewart: Its respond by an hour, wasn’t it?
James Van R. Springer: I -- it’s that’s a little unclear. The agents were there roughly an hour. The record suggests that they spent a good deal at time, trying to persuade the Elkanich to cooperate with them and reveal his sources. So, it’s hard to re-establish exactly how many agents spent how long searching through things. We do admit though that it was a search of some scope and time. The products of the search which were introduced in evidence were merely two things. Marked currency which was found in the kitchen closet and a plastic bag which was found in the living room closet; and which was similar to the plastic bag that have been used in some of the sales of narcotics, sales of heroin that were involved in the trial. But as I indicate, we believe that the combination of special circumstances here did make the search reasonable without -- and that the search therefore should not be judge solely by the standards established in Chimel as to routine searches pursuant to arrest. This was not routine search. We think that there were really three exceptional factors here. First, we think the record shows that there was probable cause for the relatively narrowly focus search in terms of what the agents apparently were looking for and what they found would actually occurred here. Second, there was a real danger. We think the record shows that agents did not search the apartment when they did when they went there to arrest Elkanich. The evidence they reasonably expected to find in the apartment would be removed or destroyed. And third and I think most important in distinguishing this case from some of the others that have been mentioned. The circumstances leading up to the arrest had brought the agents to the apartment with such genuine urgency that it was not reasonably practicable for them to obtain a search warrant. Even though we think they could have if they had have time.
Warren E. Burger: Mr. Miller pointed out that the Court -- this Court in Vale last year appears at least to have rejected the idea of the practical considerations are of no concern of the Court?
James Van R. Springer: Though, I think I --
Warren E. Burger: That I take his argument to be.
James Van R. Springer: Though, I think on examination of the opinion in Vale. The Court went to the majority went to some pains to point out that that was not a case where it was impracticable to get a search warrant. So, on this third point which I emphasized because I think it is a more unique point. I think Vale does not by any means foreclose that. That the Vale the Court pointed out that there was time. I think there was an arrest warrant there, that there was time to get a search warrant. Now, there may have been some -- some factual disputes as I guess Vale was characterized by a good deal of factual dispute. But at least those with the terms in which the majority decided that case.
Thurgood Marshall: What’s the reason in this case? I’m still waiting. Was it late at night?
James Van R. Springer: Well, I will --
Thurgood Marshall: Are you going to get to that?
James Van R. Springer: I will get to the facts which I think. I hope to do before the lunch break. Of course as I indicate, we are not rearguing Chimel here even though, that the dissenters in that case believe that the first two of the factors probable cause and danger of loss of evidence were present there. Again, I think this case is different from that because of this third factor and in fact the Chimel rule that the statement of the rule in the majority opinion does not really focus on the two factors of probable cause and danger of loss of evidence that the dissenters pointed out. So, I think Chimel has to be read as stating the rule for a routine search pursuant to an arrest. This brings me then to the circumstances that we think made it impracticable to obtain a warrant and this will require me to state the facts of the case and considerable more detail than the petitioner did. This case involved three sales of heroin by a man named Rios to an undercover agent totaling about 60 grams and these three sales were over the period of a week in the summer of 1962. One, the first sale was July 13th and then there were two more on July 18th and 19th. Each time the intermediary Rios was given marked currency by the undercover agent. He went away and came back with the heroin which suggested of course that he was obtaining it from then unknown third party. Rios was arrested on the afternoon very shortly after the last of these sales on July 19th. On his person, he had two keys and an address book. When questioned that afternoon about his source of supply, he would say only that it was a Chinese seaman name Charlie. It was no -- unable to get anymore information than this from Rios, the undercover agent Mr. Lang, testified that he spent the evening of July 19th testing the keys he had found in an apartment house where apparently he had some reason to suspect the keys might belong that was unsuccessful. The case began to break on the afternoon of July 20th, the next day, when Rios became a bit more talkative maintaining his story about the Chinese seaman named Charlie. But admitting with the keys where to Room 30 of a place called the Marlow Hotel. This in fact was a place where Lang had seen Rios go from across the street apparently to obtain the heroin that he bought from him at the first sale on July 13th. So, that Marlow Hotel rang a bell in Lang’s mind base on his own observation of that sale. Almost immediately Lang still the same afternoon. In fact, all of the events of this case through the search take place over a period of, perhaps, three or four hours between sometime in the afternoon which had been flared from the record and about 6 p.m. when the search took place. Lang as I say went promptly to the hotel to check what Rios had told them about the keys. He found out from the manager of the hotel that on July 13th which was the night when presumably Room 30 had been used in connection with this sale. Room 30 had been rented not to any Chinese but to a person who’d signed his name as Joseph Elkanich, the petitioner in this case. The manager describer him considerable detail and said that the she’d been little suspicious because the evidence that had indicated the next morning when he hadn’t slept in the room. Lang then went right back to the narcotics headquarters which I presume I gather all of these locations are in fairly close proximity to each other since the rent seem to move quite quickly. There he looked up the files on Elkanich found that he had been involved in smuggling of heroin from orient in the past. He had some other matters to attend to in Court that afternoon but as soon as he could, he obtained pictures of Elkanich from the San Francisco police. We discover he’d had him had arrested him and it served some time on a local robbery I believe conviction. But he take pictures from them then he went back to the hotel and verified with the hotel clerk that these pictures look like the man who had rented Room 30 on July 13th, the night of the first sale. I think it’s fair to say that at this point and probably at this point for the first time probable cause to go after Elkanich had emerged. Elkanich was tied quite clearly to the place where apparently the narcotics had been obtained from and it was, perhaps at least reasonable to suspect that Elkanich had also been the source for the two other sales within the very short period of a few days that Rios had made to the agent. Having suddenly discovered that Elkanich seem to be the man. It was a matter of considerable urgency to the police to the narcotics agents to go after him. Rios had obviously made efforts to conceal his source of supply and he had the police discovered then had access as Mr. Miller mention to a telephone at the county jail where he was being held. I don’t suppose that the urgency depends on what he might have done after that point. He might already -- he might well already have tipped Elkanich off and Elkanich might be packing to leave town or whatever. So, it seemed to them that it was quite urgent to pursue Elkanich as properly as they could. And in addition, assuming that there had been substantial dealings between Elkanich and Rios, Elkanich might without regard any telephone call had suddenly discovered that his intermediary was missing. So, that in any event the police, the agent felt and I think in good faith and was substantial justification that they should find this man as soon as they could. In fact, they proceeded very promptly to do so. They check with the telephone company by subpoena and discovered that he had an armless to telephone having listed an apartment at the address, in fact, the apartment where he was where they went to find him and arrested him and searched. In addition, they found in the notebook which Rios should have on its person when he was arrested, a notation of the telephone number from a man referred to as Joe. This telephone number was the telephone number that they had found from the dope.[Lunch Recess]
Warren E. Burger: Mr. Springer, I think you have the podium. You may continue whenever you’re ready.
James Van R. Springer: Thank you Mr. Chief Justice. At the lunch hour, we left off at the verge of the trip by the agents to Elkanich's apartment where they arrested and searched. At that point, it was about 5:45 on the same afternoon that leads to that -- led to the focus on Elkanich first came to the agents’ attention. And as I indicated that the agents had reasonable grounds to believe that they should pursue Elkanich with this much urgency as they could. At this time at 5:45 in the afternoon, Agent Lang who was handling the matter principally did try to reach the United States Commissioner; he was unable to do so. In any event, I think under the circumstances as that it might have been imprudent even if the commissioner was right on hand perhaps to take the time for the mechanical and secretarial work of preparing papers looking toward a search warrant. But in any event, they were unable to find the commissioner and accordingly, Lang and two other agents preceded immediately to Elkanich's apartment where they arrested him and made the search.
Warren E. Burger: What's your hypothesis Mr. Springer as to what officers would do if having arrived there as was the case in the Vale against Louisiana last year? And then undertook to try to freeze the status code while they sent one or more men off to get a warrant. What will ultimately the officers do to prevent the destruction of evidence to prevent the flight or whatever?
James Van R. Springer: Well that really leaves me into another factor. I think under these circumstances, it’s fair to say there was nothing reasonable they could do to freeze the status in the apartment pending efforts to get a search warrant.
Thurgood Marshall: Mr. Springer, what's difference is there with this case and the average narcotics case?
James Van R. Springer: Well, I think for example there's that we conceive really in the next case, in the Williams case, there's a good deal of difference. There, there was an arrest warrant. The arrest was made on the basis of a sale of narcotics that were some three weeks before the arrest. I think that kind of case is probably also quite typical of narcotics cases where sale is made but the agents hold off making an arrest before a certain period of time which of course can’t go too far while they try to find sources of supply and so forth.
Thurgood Marshall: And now, at this point question arise. The question to search and do I understand your position to be that wherever a person charge of a not colleagues violation is arrested without a warrant, automatically, you have the right to search his whole dwelling without a warrant?
James Van R. Springer: No, certainly not.
Thurgood Marshall: What's the difference in this case?
James Van R. Springer: -- the difference in this case as I tried to show in the facts I stated is that the case broke very quickly under circumstances where there were good grounds to believe that they wouldn’t be able to find the man they were looking for unless they went for him promptly and then --
Thurgood Marshall: I understand you found it through telephone company, that’s no ingenuity?
James Van R. Springer: But they didn’t know they were looking for and until I don’t how? Until a relatively few minutes before they could get the information from a telephone company and then go on to his apartment.
Thurgood Marshall: See --
James Van R. Springer: They didn’t know the identity of the man they were looking for until that same afternoon.
Thurgood Marshall: If he was engaged then the interstate theft, would you have the right to search for them? With the same facts of this case.
James Van R. Springer: I think so though there is an additional fact when we get into it but danger of lost of evidence. If he were an interstate theft of --
Thurgood Marshall: You see --
James Van R. Springer: Television sets --
Thurgood Marshall: I'm interested in not destroying the Fourth Amendment and putting an Amendment of the Fourth Amendment that this doesn’t apply in narcotic case. That’s my [Voice Overlap].
James Van R. Springer: Yes, and I’m sure of course there are additional factors. This is exigency, the impracticability of getting a search warrant. There's also the fact that we submit that there was probable cause to look for the specific items they were looking for and there were circumstances where there was a serious danger that the evidence would disappear; and it was impracticable for them, unreasonable in fact for them to seal off the area where the evidence might be until they can a search warrant. This was because the apartment had another occupant who has been described as Elkanich’s common law wife but apparent she in any event she lived there. She had certain rights in the premises since it was narcotics heroin that was in question which of course a very small item, the only way that the agents could have guarded against the risk that the evidence would disappear or be flushed down the toilet or something like that. It would have been to supervise and watch this Ms. Egan’s activities very closely. I think under circumstances where she would impractical terms had been virtually under arrest until they could get a search warrant. Of course they had no basis for restricting her freedom in that way or they could have excluded her from the apartment. But again that was a --
Speaker: What did she tell them when they went in?
James Van R. Springer: I don’t think the record shows anything. I mean to say --
Speaker: Did she tell them what her relationship was to the man in the house?
James Van R. Springer: I think not as far as the record shows. It’s a -- I'm not sure where the information comes from that she will a common-law wife. But anyway, she was apparently living there. She was present --
Speaker: [Inaudible]
James Van R. Springer: She was present in the apartment. In fact, she opened the door to let the agents in.
Hugo L. Black: I suppose it would be reasonable for a man to assume that somebody open the door and let him in the house. They had something to do with the control of that house?
James Van R. Springer: Yes, I certainly think so Mr. Justice Black and it was I think entirely proper for the agents to have considerable concern for her freedom and her rights to go on living in her apartment. So, then to the circumstances, I think the search considering the rights of both of parties was considerable less of intrusion than an attempt to freeze the situation pending efforts to get a warrant. I might also just review the circumstances that we think made for the additional factor that there was probable cause to search. In other words, they could have been a warrant had there been time.
Hugo L. Black: You mean that there was reasonable ground for this Act? Does amendment calls for it?
James Van R. Springer: Yes. Yes, Mr. Justice Black and at first as I indicated there had been a reasonable identification of Elkanich as the source of the narcotics that the agent had bought from the intermediary Rios.
Hugo L. Black: I assume you are now arguing is on the basis that we or any other you mean has the right to change the Amendment. Take out of it the word unreasonable. This is always the test that there are no rigid rules announce to the amendments.
James Van R. Springer: That’s certainly so Mr. Justice Black. Though there are of course over the years they have developed different focuses aspects of the reasonableness aspect.
Hugo L. Black: Almost courts making some rules rigid but nevertheless that remains in the amendment the word unreasonable sexes.
James Van R. Springer: Yes, and we would submit of course that under special circumstances such as we have here. It should be open despite Chimel --
Hugo L. Black: But he had given us all the facts?
James Van R. Springer: Yes, that’s exactly one Mr. Justice Black and we think that the Chimel cannot be read as an absolute rigid rule as to the only thing that can be done by way of search at the time of arrest and according that we say this additional factors here highly as pungent.
Warren E. Burger: Mr. Springer I think you would -- at least I understood you do agree with Justice Marshall’s suggestion at least by inference that there can’t be a difference in terms of Amendment, in terms of the Constitution on the aspect of the dangers this courts but in terms of evaluating the reasonableness, you did suggest television sets which couldn’t be disposed variously but taken extreme. Now, with the requirements of getting a warrant perhaps not be more stringent if a man was accused of stealing trailer trucks as distinguished from gambling slips, counterfeit money or narcotics, all of which can be destroyed in a matter of minutes. Is does that enter to the --
James Van R. Springer: I think --
Warren E. Burger: Question reasonableness?
James Van R. Springer: I think it certainly does though of Court when you talk about trailer truck, you may get into the vehicle search kind of situation which is perhaps a different category.
Warren E. Burger: Or it which would go is lay down in front of the trailer truck until his colleagues got there with a warrant whereas he couldn’t trace the situation on narcotics with counterfeit money?
James Van R. Springer: Yes, well without as I indicate the very serious intrusions upon the other occupant of the apartment. I think of a further factor in addition to the three, the exigency, the probable cause and the danger of losing the evidence. I think it is pertinent to bear in mind that this is a search at the time of arrest. The fact that there is an arrest, does mean that the defendant will quite shortly be brought before magistrate and quite shortly have a lawyer appointed to protect him. So, its -- I think the context in which this occurs is somewhat different from the context, where their might not be with few minute safeguards that arise out of the arrest situation. I would suggest that there is some analogy though I don’t want to press it too far between the decision last term in Chambers against Maroney, where in connection with the vehicle search, the two factors of probable cause and the danger of loss to the evidence were regarded as enough without either an arrest or perhaps at least so clearly the notion of impracticability of getting a warrant. I would like to move on to the retroactivity questions that have been raised by the petitioner here. As I indicated what I said so far has assumed what we argue not to be the case but the Chimel governs this case. I emphasized again that this case Elkanich is a collateral review case since the search took place in 1962 and the conviction became final in 1964 so that in order to prevail the petitioner would have to convince the Court of the Chimel Rule should be fully retroactive. Its principle point of course is that, I guess he argues that we don’t have a retroactivity case here because Chimel was not the kind of change in the interpretation of the Constitution which invokes a retroactivity problem. But I think its simplicity at least in what Mr. Miller said that he believes that if we do have a retroactivity problem here the principles of Desist and in fact all of the Court’s cases since Linkletter in 1965 indicate that this case should not be governed by Chimel. I think, the first place to look in determining whether Chimel is a kind of change in the law that creates a retroactivity problem is the Chimel opinion itself, where the Court discuss the prior law at some length, and said clearly that the Rabinowitz case and I'm quoting now, “has come to stand for the proposition that a warrantless search incident to a lawful arrest may generally extend the area that is considered to be in the possession or under the control of the person arrested.” And added another point the Court says, the rationale that allowed the searches and seizures in Rabinowitz and Harris would allow the searches and seizures in this case. Chimel involved the search of an entire three-bedroom house by three officers that went on for a good part of an hour. Rabinowitz involved a meticulous search of all of the drawers and cabinets of an office that went for an hour and a half and Harris was a five-hour search of a four-room apartment. All of these searches were I think considerably more elaborate than the search in this case and so, I think the -- it was contemporary standards in effect at the time of the search as express explicitly by this Court in its decisions continued to be good law. Petitioner suggest that any policeman worthy of the name, to use this phrase, should have noticed some years before Chimel that this Court had lost enthusiasm for the Rabinowitz rule and therefore should have seized relying on it as a guide for their investigatory work, I think that’s unrealistic. In 1962 as a matter of fact, though as petitioner suggests without enthusiasm, this Court relied on the Rabinowitz case and the Abel case. Considering that we are dealing here with the rules of primary behavior by police officers who I think have to be able to carry on their work with some degree of certainty and simplicity as to rules. I think that it’s simply unrealistic to say that the police were not entitled to rely upon Rabinowitz rule in 1962 or for that matter in 1964 when the conviction began final here. Thank you Mr. Chief Justice.
Warren E. Burger: Thank you Mr. Springer. Your time has exhausted Mr. Miller but let me say you acted by appointment of the Court and that the request of the Court.
Charles A. Miller: Yes, Your Honor.
Warren E. Burger: In tradition of the concept of being an officer of the Court, and we thank you for your assistance to the defendant and to the Court.
Charles A. Miller: Thank you Mr. Chief Justice.
Warren E. Burger: The case is submitted.