Earl Warren: Number 37, Massachusetts, Petitioner, versus Donald M. Painten. Attorney General Richardson.
Elliot L. Richardson: Mr. Chief Justice and may it please the Court. This case comes to you on certiorari to the United States Court of Appeals for the First Circuit which affirmed an order of the United States District Court for the District of Massachusetts, allowing a petition for a writ of habeas corpus by Donald M. Painten, the respondent in this Court. The respondent had been convicted in Massachusetts for armed robbery and other related charges. The Supreme Judicial Court of the Commonwealth affirmed that a writ of error was subsequently denied. The United States District Court vacated the judgment of conviction and gave the Commonwealth the option either of bringing a new trial or discharging the respondent. The issue in this Court is essentially that of the reasonableness of police conduct held by the federal courts to be in violation of the Fourth and Fourteenth Amendments. Since the facts and the constitutional issues thereby presented are inseparably interwoven and I shall be obliged to state the facts in considerable detail. And at this point, may it please the Court, it is important to have in view that the statement of the facts that I shall be giving you is based in its entirety on the findings of the District Court which begin on page 50 of the record. There are certain discrepancies in the fact as they appear in those findings, as they appear in the testimony before the District Court in the evidentiary hearing and as they appear in the opinion of the Court of Appeals. These discrepancies are accounted for by the fact that the District Court and only the District Court had available to it, the full transcript of proceedings in the state court. Proceeding then with the facts; on Saturday evening, March 1, 1958, Emmett McNamara and Herbert Maxwell, two plain clothes officers of the Boston Police Department were on patrol --
Potter Stewart: Mr. Attorney General, I'm sorry to interrupt you and take you back one moment. Now why did the District Court alone have available to the transcript of the Massachusetts proceeding? That --
Elliot L. Richardson: Well, it was a very (Voice Overlap) --
Potter Stewart: --is part of the record with the Court of Appeals?
Elliot L. Richardson: To the best of my knowledge Mr. Justice Stewart, it was not available at the Court of Appeals --
Potter Stewart: It is not here?
Elliot L. Richardson: -- it is very lengthy and it is not here in this Court. So that we are only -- awareness of what it contained. It appears in the findings of the District Court which insofar as they vary from the testimony in the evidentiary hearing before the District Court can only be accounted for by the fact that the District Court compared both and selected a version which it believed to be the correct one and which we now before you are relying upon.
Potter Stewart: Well, that's one way to account for and another way to account for would be that the District Court is -- was wrong and --
Elliot L. Richardson: The District Court --
Potter Stewart: And how can we know without having a (Voice Overlap) --
Elliot L. Richardson: The District Court explicitly states at the beginning of that portion of its opinion that it did so rely on page 50 of the record, on the basis of the state court record and the evidentiary type of hearing held in this court I find and then follows the statement of facts which I'm about to summarize.
Earl Warren: Is there a dispute as to the accuracy of those facts?
Elliot L. Richardson: To my knowledge Mr. Chief Justice, no actual dispute and yet in certain respects, the counsel for the respondent and for the Commonwealth select slightly different versions which can be found at these various points, so that I would simply mean and make it clear that --
Earl Warren: -- could bring you to a different it falls?
Elliot L. Richardson: Well, of course we represent a petitioner and a respondent in a situation in which the facts and the constitutional issues are so much inseparable that slight shadings of difference in the facts could make a difference in the result. So I --
Earl Warren: Should we be bound -- should we be bound in determining the case by the findings of the judge when we have no record to support it? There's nothing here on which we can judge?
Elliot L. Richardson: Mr. Chief Justice, it seems to me that the findings themselves are part of the record for this Court and that rather than for this Court, for example, to go back to the testimony which you do have transcribed before the district judge and to draw inferences from that testimony ab initio, leaves it preferable it seems to me to rely on the facts as found by the district judge who did have the benefit both of hearing the witnesses before him as well as reviewing the transcript before you.
Speaker: This is the part of the order except for him [Inaudible]?
Elliot L. Richardson: In one respect at least, their statement of the facts does differ from that of the findings of the District Court. However, this Court may feel --
Earl Warren: We have no -- we have no complete record on which to determine which is right.
Elliot L. Richardson: That is correct, Your Honor.
Earl Warren: Why don't we?
Elliot L. Richardson: Because the facts, the transcript in the original proceedings before the Supreme Judicial Court of Massachusetts and then the Superior Court would have been a transcript of some 1120 pages. And because the -- it seems sufficient to proceed on the basis of the record in the evidentiary hearing which was also before the Court of Appeals.
Byron R. White: Well, it's available somewhere isn't it Mr. Attorney General?
Elliot L. Richardson: Yes, it is Mr. Justice.
Byron R. White: And we don't many times, the records are printed than these files up here?
Elliot L. Richardson: Well, it certainly could be made available. I merely felt it's important at the outset to make clear that the statement that I will be making to you is drawn entirely from the findings of fact set forth in the record beginning on page 50.
Byron R. White: Now, the record -- that record of the state court hearing and I take it is lodged with the District Court, the Federal District Court at this point?
Elliot L. Richardson: Yes, it is.
Byron R. White: Sure.
Elliot L. Richardson: Yes, sir. So then on Saturday, March 1, 1958, these two Boston plain clothes officers were on patrol in the south end of Boston. They found themselves traveling behind a Ford Sedan occupied by two men. They observed the Sedan pull up in front of a liquor store. It happened that there had been a recent rash of liquor store hold ups in the vicinity. Officer McNamara saw one of the two men get out of the car and entered the store. He recognized the man as the respondent Painten from a mug shot, photograph of him that he picked at the police headquarters and happened to have in his pocket. The Sedan moved slowly up the street, turned around and pulled up before the liquor store. When the driver saw McNamara in the unmarked police car, he took off down the street in a burst of speed. McNamara wheeled the squad car around and gave a chase, overtaking the Sedan within a few blocks. McNamara recognized the driver as one George Ash, whom he knew as having been convicted of several holdups in the past and thus having served time in prison. McNamara ordered Ash out of the car and asked him why he had fled. Ash said that it was because McNamara had scared him. The officers looked in the car and after some conversation, let Ash go on his way. Ash went back in the direction of the liquor store. In addition to the recent liquor store hold ups, there had been a loan company hold up that same day. The hold up had been described as two White men, one tall, one a little shorter. The appearance of Painten and Ash was consistent with this description, scanty though it was. McNamara and Maxwell returned to the liquor store and showed Painten's picture to the clerk who told them that Painten lived in nearby apartment building. They drove to this address and behind the building found the car that Ash had been driving. Painten's name was under one of the door bells at the front door. McNamara returned to his car and put in a radio call for two more police officers. When these two officers, Menia and Rufo arrived, McNamara told them that he and Maxwell were going up to see some fellows in an apartment. Rufo was assigned to watch the rear of the apartment building and Menia was left to watch the front stairway. McNamara and Maxwell then went on upstairs to Painten's third floor apartment and knocked on the door. Painten came to the door, opened it only a few inches and asked who is there? McNamara showed his badge and replied, “It's the police. We'd like to talk to you. Painten asked, if they would wait a minute. McNamara replied that they would and Painten closed the door. While the door was closed, McNamara heard inside the apartment, a sound like that of a window being raised and lowered. A few seconds later Painten opened the door. McNamara and Maxwell entered the apartment. Inside in the kitchen, they found George Ash and a woman identified as Doris Painten. There was some conversation between McNamara and the occupants of the apartment. No search of Painten's person or the apartment took place at this time. About three minutes had elapsed between the admission of McNamara and Maxwell to the apartment when Officer Rufo came into the kitchen and said, “They threw a bag out of the window.” Rufo opened the kitchen window, stepped out on the fire escape, went down on the landing in the second floor, picked up the brown paper bag and brought it back to the kitchen. McNamara opened the bag and discovered inside wrapped in wax paper, a 32 caliber automatic and 45 caliber revolver together with a number of 32 caliber and 45 caliber bullets. McNamara thereupon placed Painten under arrest and proceeded to make a thorough search of the apartment. In the course of the search, McNamara found and seized the box of 32 caliber bullets and under a mattress in Painten's bedroom about $980.00 in cash. Later the same evening, either police officers found and seized a roll of waxed paper, edge of which corresponded with the edge of the wax paper that had been used to wrap the guns and ammunition found in the paper bag. Now --
Thurgood Marshall: Excuse me Mr. Attorney General, when was Painten search to find the money in his pocket?
Elliot L. Richardson: There was no money found in Painten's pocket. Upon entering into the apartment, I left this out only because it did not seem material, a bulge was noted in Ash's pocket and McNamara reached into the pocket, presumably thinking it might be a weapon.
Thurgood Marshall: Well, it could he have felt it?
Elliot L. Richardson: He might have. In any event that money --
Thurgood Marshall: I mean if it was a weapon, could he have felt it while that was in the pocket?
Elliot L. Richardson: Mr. Justice Marshall, I don't know why he did. In any event, that money was not seized. As soon as McNamara found that it was money, he withdrew his hand and so far as I'm aware, that money is not an issue here.
Thurgood Marshall: And you don't consider that a search?
Elliot L. Richardson: No, well, if it were a search in any event, it was a search which was in the sense negated by the fact that the officer did not seize the object found and it was not later introduced in evidence.
Thurgood Marshall: The only reason I raise it, well, you said there was no search involved until after the window was --
Elliot L. Richardson: I made my point that there was no search of Painten. The money that you -- we've just been talking about $200.00 in cash that bulge in the pocket. This was Ash's pocket. There was no search of Painten whatsoever and no search of the apartment as such until after the bag had been brought into the kitchen and opened and the guns and bullets found. Now these, may it please the Court, are all the facts which a neutral observer could have seen or heard which a camera, accompanied by tape recording equipment at every point in the scene could have picked up. And if these were all that the record contained, it could very well be that the case would not ever have reached this honorable body. In setting aside Painten's conviction however and directing the Commonwealth of Massachusetts either devote a new trial or to discharge him, the courts below relied on elements in the record which could not have been seen or heard by a neutral observer. These consist of McNamara's own impressionistic attempts more than seven years after the events in question. Under cross-examination at the evidentiary hearing to account for the motives and attitudes which led him to do what he did. As their opinions make overwhelmingly clear, both of the courts below make McNamara's intent as they construed it, the touchstone of the validity of his actions. Thus as the District Court put it, I find that the officers went into the apartment intending to ask Painten a few questions and then they arrest him on suspicion of the loan company job.
Abe Fortas: Mr. Attorney General, could you tell me whether the officer told Painten the reason for his arrest? Did he say anything to Painten about why he was arrested? I notice in page 50 of the record it says, it recites McNamara then placed Painten under arrest for suspicion of the hold up from “loan company. ” Does that mean that the officer told that -- said that to Painten?
Elliot L. Richardson: It doesn't appear to my -- I don't find satisfactorily answered Mr. Justice Fortas the question of what they did say to him. The reference is to the loan company job and the arrest are parts of McNamara's reconstruction of what he had in mind, but I find nothing and which differs directly to what he said at that time. The District Court then finding that he did intend to arrest him on suspicion of a loan company job by going to say in so finding, I have in mind the statement by Officer McNamara at the hearing here that if Painten have not gone from the car into the liquor store, he would have asked him and Ash a few questions and then quoting McNamara, “I believe I would have taken him to the station for a suspicion of that hold up that day. ” Similarly, the Court of Appeals in its opinion observed, the Commonwealth's own evidence indicates that a search was in fact intended, continuing the Court quotes from the testimony of McNamara under cross-examination. “Was it your opinion?”
Earl Warren: You're speaking with the Court of Appeals now quoted from --
Elliot L. Richardson: Yes, Mr. Chief Justice. This is from the Court of Appeals' opinion. It appears on page 63 of the record before you. “Was it your opinion?” This is the question of counsel. Something was going on in that household to give you reason to enter the household without a warrant. Answered by McNamara, “Yes sir. In that household, it has people with a background, people that I knew were in there, I might be able to solve a string of serious crimes”. Further, the Court of Appeals observed quote from McNamara. “Now, we have them,” referring to Ash and Painten, “together in the apartment and the hold up of the loan company is in my mind now and I found out he is living there. These things in my mind lead me to arrest him for that hold up.” The meeting mentioned of McNamara as additional reference a moment later, the officer coming in discovering the guns and in this connection McNamara's testimony could be read as meaning, “These other things I had in mind plus the discovery the guns. ” This is the second reference by McNamara. It is not included in the Court of Appeals quotation. The Court observes, “It is apparent that the police knowing of a crime and knowing that Ash and petitioner were suspicious characters, but having no reason to connect them with the crime they are investigating set out to arrest and searched the man in the hope that evidence would develop. ” The courts below have thus rested their invalidation of a state court conviction fully on a police officer's efforts to bridge up from the remote subconscious, his motives through action which took place more than seven years earlier.
Thurgood Marshall: Excuse me Mr. Attorney General, on page 31, McNamara said that, “if Painten had not stopped to go into the liquor store, I would have approached him, questioned him and more than likely arrest him on suspicion.”
Elliot L. Richardson: Yes, Mr. Justice Marshall. That point is relied upon by the District Court in supporting the District Court finding that McNamara and Maxwell intended to make the arrest when they went to the apartment.
Thurgood Marshall: Yes.
Elliot L. Richardson: Our point is that reliance upon this sort of testimony as to McNamara's state of mind at the time, particularly since it is a testimony seven years after the event can only lead to a confusion and speculative tests of subjective attitude in application of the administration of the law of search and seizure. This I think is the irony of this entire exercise reconstructing McNamara's state of mind. It's pointed out by the fact that his own introspective self-examination simply cannot be squared with what he and Officer Maxwell actually did. If when they knocked on the door of the apartment, they had really intended to carry out an arrest and search. Why didn't they enter the moment the door opened instead of acquiescing in Painten's request that they wait a moment, why? After entering the apartment, didn't they arrest Painten immediately instead of engaging him in conversation for three minutes? Why? If they thought they already had probable cause to make an arrest and conduct a search, the discovery -- did the discovery of the guns and bullets become the critical factor in the actual timing of the arrest and search. One can speculate of course that McNamara despite his belated efforts to reconstruct his own state of mind, didn't in fact really have any fixed purpose in setting out to talk to Painten and Ash.
Potter Stewart: But applying the post hope objective test which you suggest and submit, by that test, what was it that brought the officers to the door of the apartment?
Elliot L. Richardson: A series of observations, none of which were of tremendous importance in themselves, first of all, the knowledge that there had been a rash of hold ups in the area. The fact that two men answering in general the very scanty description available to them of the men who would commit at the most recent hold up, caught up in front of the liquor store in a manner consistent with the intent of carrying out a hold up. The fact that the one left in the car took off at a burst of speed simply upon seeing one of the officers that they then upon going to the house heard the window being raised and lowered.
Potter Stewart: Well no, we're not to the house yet. I asked you what brought them to the door of the apartment?
Elliot L. Richardson: Up to the point where they come to the door, I think one can only say that this combination of circumstances, the noticing --
William J. Brennan, Jr.: The policeman's informed intuition, is that about it?
Elliot L. Richardson: I believe that is expresses precisely what is involved here. Indeed, this is a way of expressing the importance of this case because this Court would have been (Voice Overlap)
Potter Stewart: If I may discontinue a moment to ask you to -- so that you understand your position. You do not contend, do you, that at the time they were at the door of the apartment, they had probable cause for a search or for an arrest?
Elliot L. Richardson: We do not contend that. We concede that they did not.
Potter Stewart: That's what I thought.
Elliot L. Richardson: And we would agree that they had no probable cause for an arrest or a search incidental thereto after they entered the apartment or at any time up to the point when the paper bag was opened and the guns appeared.
Byron R. White: They were carrying out an investigation?
Elliot L. Richardson: They are carrying out an investigation and of course, it is essential to our position that there was no unlawful act at any step of the way up to the discovery of the guns. If of course, it were found that they had entered that apartment without consent of Painten, this would be a basis for invalidating what took place thereafter. On the other hand, there is no finding that there was a lack of consent and indeed, we believe that the facts before you require the conclusion that that there was consent.
William J. Brennan, Jr.: Mr. Attorney General, I gather that from Judge Kaufman's opinion that he disagreed with the rationale of his colleague.
Elliot L. Richardson: Yes --
William J. Brennan, Jr.: What if one – one of his basis for concurring namely that as he puts it, the officer used the apartment as a conduit of convenience for seizing the bag on the fire escape that therefore the -- in that circumstance, the seizure of the bag from the grading was unlawful?
Elliot L. Richardson: Mr. Justice Brennan, I can only say as to this that I find it difficult to account for his characterization of what -- of what Officer Rufo did as being the use of a conduit of convenience. Actually, the time when Rufo entered and this is quite clear I think in the record, McNamara and Maxwell were talking to Painten and Ash and Mrs. Painten in the kitchen. Rufo entered and found them in the kitchen and the window he used to go out on to the fire escape was the kitchen window. He was therefore if the others were lawfully within the apartment so was he.
William J. Brennan, Jr.: Their consent in other words would embrace his appearance as well?
Elliot L. Richardson: It would appear so and if he were lawfully there then what we have in effect is a lawful entrance to the apartment, but which is sometime and somehow or rather the exit there from becomes unlawful and thus used by Judge Kaufman to invalidate everything else.
William J. Brennan, Jr.: Would you take the same position of that bag that had been sitting on the kitchen table, they looked into it?
Elliot L. Richardson: I think that the case would be -- would be very clear at that stage that of course, the bag unlike the heroin in the Kerr against California case would not have had been obvious with respect to what it's contents were. The situation then I think is that there would have been no reason to direct attention to the bag. Here, it was the fact that the window opened and this particular item was dropped out which of course gave reason to inquire what it was and open it. And we're not aware of any contention before the Court that the actual opening of the bag somehow invalidated everything else. I would like to reserve what few minutes remains Mr. Chief Justice for rebuttal.
Earl Warren: Mr. Nordlinger.
Louis M. Nordlinger: Mr. Chief Justice and may it please the Court. I'd like to just address myself first if I may to a couple of the factual matters that my distinguished brother from Massachusetts has covered quite thoroughly, but a few things I think bear mentioning. First of all, having in mind the decision of this Court of Johnson against United States, I'd like to make it clear, if the Court please, that the time of day of the case now before the Court, this Painten case we're arguing today is quite similar to the time in Johnson against United States. These are both evening cases, just to fix the time of day. Another thing I would like to mention which was not brought out heretofore, the respondent on this case, Painten was not known to the police officer to have any record for any particular type of offense. This appears from our record.
William J. Brennan, Jr.: He did have a mug shot though, didn't he?
Louis M. Nordlinger: That's the only basis for suspicion Mr. Justice that there was a record.
William J. Brennan, Jr.: Well, ordinarily, they take a mug shot only when someone is arrested or something?
Louis M. Nordlinger: Oh, that's very true then I think we have to concede that much but the officer have no knowledge whatsoever that would connect this man, Painten to any robberies or any crime of that nature. It's a different matter of course as to Ash, the companion. And then, in the record, I would like to submit to the Court that we have a rather complete record of the testimony in the District Court and that testimony indicates that the police came to the door, showed a badge and said only, this is the police. There was no mention, we'd like to talk to you, if that were to be important, but I think that the District Court maybe had overlooked this. I don't know what happened. We never made an issue of it before the United States Circuit Court. The Court of Appeals did not make that finding. I think just examining the same record that is before this Court today, there is nothing to indicate that the police said, we would like to talk to you. Now, there is a finding if I may call to the attention of the Court, there is a finding that there was no consent to the entry or finding by the United States District Court. Maybe it was not in expressed words but I would like to call to the attention of the Court respectfully that on page 55 of the record which is part of the findings of the United States District Court, the Court says, it follows that the entrance into Painten's apartment without a warrant and absent to any probable cause to arrest any occupant thereof was “under column of their police authority” and citing Johnson against United States and there was no “valid basis in law for the intrusion. ” I think when the District Court judge included this language, he had in mind that there was no consent to this entry.
Abe Fortas: The court -- majority of the Court of Appeals clearly did not pursue that line?
Louis M. Nordlinger: No, Your Honor.
Abe Fortas: That is opposed to the statement by Judge Kaufman concurring?
Louis M. Nordlinger: That's true Your Honor.
Abe Fortas: That the majority then went off on a different basis namely that as I read, namely that the police officer set out to arrest and search the man with the hope that evidence would develop. Is that correct?
Louis M. Nordlinger: That's very true. Yes, that's true Your Honor. I'd like to urge and I hope I don't exceed the liberty that counsel has in this Court, I would like to urge very seriously before the Court that this is not an unusual situation, but rather this is a very typical situation where the states would do well to apply the pronouncements of this Court and there are ample decisions in this area regarding the importance of privacy of the individual. In the words of Mr. Justice Bradley that I think are so important here, it is the duty of the courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon. Or again words of Mr. Justice Brennan, “we are duly mindful of the reliance that society must place for achieving law and order upon the enforcing agencies of the criminal law, but insistence on observance by law officers of traditional fair procedural requirements is from the long point of law best calculated to contribute to that end. ” And I think if the Court please that this is what this case is about. Now --
Abe Fortas: If you take this step by step, what are the specific points of conflict with the constitutional doctrine. The officers came to the apartment and they said, this is police and then they were voluntarily admitted into the apartment. Now, is it your point that there -- do you have an objection at that point namely that there are some coercion resulting from their saying this is the police?
Louis M. Nordlinger: That would have to be our contention if Your Honor please that there was not a voluntary admission surely for the purposes of search and the --
Abe Fortas: And why – wait a minute, let's just like about the admission to the apartment without reference to search?
Louis M. Nordlinger: We would argue that the entry to the apartment was not because the voluntary --
Abe Fortas: You mean that anytime the police come to the door of an apartment and they say this is the police and people let them in that, that is an unlawful entry by the police, wouldn't have to be your position?
Louis M. Nordlinger: Well, if Your Honor please, I don't know whether we would go so far to say in every case, the simple entry by the police without a forceful resistance by the tenant would mean that --
Abe Fortas: What makes this -- what is the element that differentiate this case then that makes this case a violation of the constitutional rights? Is it the intention, the mental attitude of the police purpose?
Louis M. Nordlinger: No, I don't think so Your Honor. I think --
Abe Fortas: That's what the majority said, isn't it?
Louis M. Nordlinger: Well, I think that the United States Court of Appeals looked to the entire record, looked to all the elements in the case --
Abe Fortas: Yes but you have to put it in words what did they say, what did they (Voice Overlap)
Louis M. Nordlinger: They did look to what the police had in mind of course. That figures into it but they do not rely solely on this. They looked to what the police did if Your Honor please. They look to what Officer McNamara related was the actual history of the actions of the police.
Abe Fortas: Right. Well, let's take it step by step if you don't mind. Then, let's assume for purposes of discussion that the entry into the apartment was lawful by the police, make that assumption would you --
Louis M. Nordlinger: Yes, Your Honor.
Abe Fortas: – for just for purposes of these questions. Then was -- what was the next unconstitutional act done by the police, if there was one in your submission?
Louis M. Nordlinger: Well, having -- in treating your question properly, Your Honor, I have in mind that the courts have already examined this problem to see whether the police were admitted voluntary (Voice Overlap)
Abe Fortas: Well, make that assumption.
Louis M. Nordlinger: Whether they were admitted for the purposes of talking or whether they were admitted for the purpose searching. Now we have cases on this of course. I think one of the cases is --
Abe Fortas: The search here was not undertaken or would you contest this?
Louis M. Nordlinger: Oh, yes, Your Honor.
Abe Fortas: The search was not undertaken until after the bag containing the revolvers was found and produced.
Louis M. Nordlinger: I think the search began, if Your Honor please, when the officers entered the apartment, walked over to Ash, the gentleman who was in the apartment. The officer put his hand on Ash's pocket, withdrew a roll of bills and examined these bills. I think that's the beginning of the search.
Abe Fortas: Now was that introduced and there was a testimony to that affect that Ash had in his pocket $200.00 or whatever it was in the bills, was that introduced as evidence against Ash?
Louis M. Nordlinger: Let me say this if I may Your Honor, to clarify the history of this very briefly. “We have no problem with Ash being in a trial because this material that was seized as a result of this search and seizure,” this material was never used in what the officers claim was a loan company hold up or a liquor store hold up was not used for that at all. These people were never found --
Abe Fortas: Well, was the fact that the officer found $200.00 or whatever in Ash's pocket used in evidentiary manner?
Louis M. Nordlinger: Not against Painten, no Your Honor and Painten is the only man before us of course.
Abe Fortas: Now what's your next complaint about what happened?
Louis M. Nordlinger: The next complaint of course is taking the paper bag from the fire escape and bring it back into the apartment. That would have to be the next element of the search that we see an issue here.
Abe Fortas: What made that unlawful?
Louis M. Nordlinger: The fact that the paper bag was on -- either on the premises or within the cartilage of this apartment, I surely would urge that most strenuously and that the officers had no authority to search in the apartment, search anywhere in the apartment when they entered and this is just part of the search that they conducted.
Abe Fortas: That's because you say the consent when I went -- we're assuming that it was consent to enter the apartment did not extend to the cartilage or did not extend to a consent to picking up what was inside on the fire escape or whatever?
Louis M. Nordlinger: Yes, Your Honor. I have some difficulty in knowing how far we're making an assumption here, but if we're not assuming that the tenant that Painten agreed to a search of his apartment and then of course we'd say that it would be immaterial whether the bag was on the fire escape or on the kitchen table that they have no right to search. We have in the --
Thurgood Marshall: Mr. Nordlinger, suppose the policeman outside in the back had gotten a ladder and climbed up and he picked it up?
Louis M. Nordlinger: I see no difference Mr. Justice. The bag we still would argue was within the cartilage of the apartment. It was not in plain view. We have no trouble here with a plain view case. This is not a plastic bag that the guns are visible in on the fire escape. This is a paper bag and the police had no way to tell what it was until they went up and got it and opened it up.
Thurgood Marshall: It makes no difference whether he went through the apartment or went up to fire escape?
Louis M. Nordlinger: I don't think it would if Your Honor please. I don't think so. I think they're still invading a protected area of this tenant's apartment whether they go through the apartment or up the fire escape. There's an equal invasion of this man's privacy.
Thurgood Marshall: Suppose you have got into the bottom in the backyard of the apartment or house --
Louis M. Nordlinger: Well, I could --
Thurgood Marshall: I assume there was more than one tenant.
Louis M. Nordlinger: Yes there were.
Thurgood Marshall: And suppose they had dropped it from the backyard?
Louis M. Nordlinger: Your Honor, I can only have in mind when I answer that -- I can only have in mind the cases that we already see in the reports where the courts have examined what is this area in which the material was thrown out. Now in some cases, it was thrown out in the backyard of a privately owned dwelling and they said that was within the cartilage. Suppose the material was thrown out on the street, the back window opened on a street instead of opening on a fire escape and the stuff fell on a public street, I don't think we're going to argue if that's within the cartilage. I think there, we're faced only with an area that is within the protections of this tenant's premises.
Byron R. White: So it wouldn't made any difference whether they climbed up the fire escape or went through the apartment?
Louis M. Nordlinger: I don't think so, Your Honor.
William J. Brennan, Jr.: Well, what do you do what they do? How does this differ from Abel where Abel discarded in a paper basket as I recall it in his hotel room?
Louis M. Nordlinger: Yes Your Honor, I think there's quite a difference in the facts if you please --
William J. Brennan, Jr.: I mean, throwing it out in the window in a paper bag is different from --
Louis M. Nordlinger: No.
William J. Brennan, Jr.: Throwing them into the --
Louis M. Nordlinger: No. In the case of -- in Abel, he was leaving the premises for good. He was heading for detention and then to prison. He was leaving his premises for good. The officers were in the apartment. He was told, “Pack up your things, you're coming with us” and as he packed up his belongings in a suitcase, he threw a few incriminating items in the waste basket and then he went out --
William J. Brennan, Jr.: It was still his room though, was it not?
Louis M. Nordlinger: No it wasn't Your Honor. The Court, I believe that this Court found, that when he left that apartment -- that room, he had no more right to what was in the waste basket became the property of the hotel if anyone and the hotel gave permission to the officers to engage in a search. He abandoned that property, throwing it in a waste basket and knowing that he wasn't going to come back or take the other case, if Your Honor please, the Hester case of some years ago. The officers appear on the property and these moon shiners, all -- I don't know why they have them but they happened to have jugs and bottles on their persons.
William J. Brennan, Jr.: You don't know why they have it?[Laughter]
Louis M. Nordlinger: I don't know. Unless they were thirsty Your Honor and they took these bottles and threw them aside just abandoned the bottles and threw them aside. First of all, there was no question of the home, but aside from no invasion of the home,' here they were just throwing these bottles in the side and running away and the bottles were smashing around on the ground right in front of the officer. I think there's a difference in Hester also and in Abel but I think the distinction is clear from the Abel case. Turning for a moment to this question of consent which seems, I think it's rather important and I know that to the Commonwealth's case, they must stress the element of consent. We don't have the factual situation that was before a Court of Appeals in Davis against California some years ago. This is a case which was stressed in the brief for the Commonwealth and I think should be distinguished in that the tenant said, “Come in and look around. ” Now, if Painten were to say to the officers, “Come in and look around,” I don't think we'd be here today. I don't think it will be much merit to the case. In addition in the Davis case in which a consent was found --
Byron R. White: Would you be here if he just said, “Come on in please, I will be glad to talk with you?”
Louis M. Nordlinger: I think we would be. Yes, Your Honor. Because I don't think that the consent to come in and talk means a consent to search.
Byron R. White: What is your concern is just as though the bag that was out on the fire escape proceeding in the corner of the room and the officer without any consent like to look for this?
Louis M. Nordlinger: Yes, Your Honor. That's true.
Hugo L. Black: You're not implicating the exact words that were said in the two that you say it's so difficult?
Louis M. Nordlinger: I'm sorry. I don't understand your question Mr. Justice.
Hugo L. Black: The words that you said -- they said about coming in.
Louis M. Nordlinger: Yes.
Hugo L. Black: You draw a distinction between one little words and another [Inaudible], do you mind stating that [Inaudible].
Louis M. Nordlinger: The record of testimony not -- I'm not speaking of the findings Mr. Justice, the record of testimony in the District Court which appears in the record before this Court today shows that the police said, “I had my badge in my hand.” I said, “We're police officers.” The district judge when he made his findings added to this that the police said, “We're police officers, we would like to talk to you,” but by the time the case come to this Court of Appeals again, they examined this record of testimony and couldn't find that and they made a finding that there was only the statement, “we're police officers,” that's all. Now, I submit also, if Your Honor please, that the petitioner test --
Hugo L. Black: You said there was a difference in that and if they have sent something else, maybe a few but I just don't remember it, it's not important?
Louis M. Nordlinger: No, there would be a difference if the petitioner, if the tenant had said, “Come in and look around.”
Hugo L. Black: What did he say?
Louis M. Nordlinger: He said nothing.
Hugo L. Black: He said nothing.
Louis M. Nordlinger: The first time to -- I don't want to --
Hugo L. Black: What would happen if he had said, come in and look around?
Louis M. Nordlinger: I think then Your Honor it would be a very hard foot to make an argument that there was no consent.
Hugo L. Black: So you think that could be the same?
Louis M. Nordlinger: Well, I think that could.
Hugo L. Black: Remaining silent, isn't not?
Louis M. Nordlinger: Yes, Your Honor.
Byron R. White: Well, he did say something, he said wait a minute.
Louis M. Nordlinger: Oh, that's when he first opened the door and saw who it was. He said, “Wait a minute.”
Byron R. White: Wait a minute.
Louis M. Nordlinger: And they waited.
Byron R. White: And then closed the door?
Louis M. Nordlinger: Yes.
Byron R. White: And then he came back and opened the door?
Louis M. Nordlinger: That's right.
Byron R. White: Well, what did he say there?
Louis M. Nordlinger: Nothing.
William J. Brennan, Jr.: For that matter he opened the door to let them in?
Byron R. White: He came back after knowing who they were and he came back and opened the door?
Louis M. Nordlinger: That's right. I don't know if that's much different than his opening the door initially.
William J. Brennan, Jr.: Well, I really have difficulty seeing why there wasn't a consent to entry in those circumstances?
Louis M. Nordlinger: Well --
William J. Brennan, Jr.: That -- opening the door that seems to me the second time to invite them to come in. What else it could have been?
Byron R. White: And it certainly does destroy your case to admit that?
Louis M. Nordlinger: No, but if Your Honor please, you have this question before this Court in Johnson against United States and a very same thing happened and no consent was found. In the Johnson case, you have the officers coming to the door. I think this is a hotel room, if my memory assures me correctly. The girl in the hotel room, there was a smell of opium in the hotel and the girl opened the door and the police came in. She didn't say anything and Painten said nothing and there was no consent in that case Your Honor.
William J. Brennan, Jr.: Well, there wasn't anything in Johnson comparable to these set of facts as I understand it. The police officers arrived, they knocked at the door, Painten saw them, Painten said wait a minute. He closed the door and then later, he came back, opened the door, stepped aside and let them in.
Louis M. Nordlinger: That's not the same as Johnson of course.
William J. Brennan, Jr.: I should have known.
Louis M. Nordlinger: I think that there is excellent language, if I may say this, if the Court please, Judge Youngdahl in this district or I should say in the District of Washington, in the case of United States against Evans and another case, I don't recall who the district -- who the judge was, this is a decision of the Court of Appeals in Jude against United States examined this type of situation where the police come to the door and there's no express consent. In the words of the Court of Appeals, he didn't give us actual consent to search, the police said in our case, “He gave us consent to go in there. He said he had nothing to conceal or hide, it was perfectly alright for us to go out there.” The Court of Appeals says, “Invitations to enter ones home, extended to armed officers of the law who demand entrance are usually to be considered as invitation secured by force”.
William J. Brennan, Jr.: There was no demand of entrance here. The officers didn't demand to come in as I understand these facts?
Louis M. Nordlinger: Well, just the fact that the officers were there and said “we're the police”.
William J. Brennan, Jr.: That's enough?
Louis M. Nordlinger: Would be enough, I believe so Your Honor. I think there is -- aside from the opening of the door and saying wait a minute and then coming back to the door, I would urge upon the Court that this is a case very close to Johnson against United States. I think a case which calls for the same sort of approach, the same sort of thinking that we see expressed in Johnson against United States. Now with consent lacking and I believe that under the cases like Jude against United States and Evans which both come from this area. I think with consent lacking and of course, we have no ward in issue here, and we don't have those exceptional circumstances that were authorized an entry to arrest and search. The petitioner then is asking to have the arrest and entry rehabilitated by the fruits of the search and I believe this is where the Commonwealth finds itself today. They're saying that because we found a paper bag and brought it in and found guns in the paper bag, that made our entry valid. I don't see how well the Commonwealth can ask that the state be upheld in the way it handled this case.
Hugo L. Black: How do they happen to find the bag?
Louis M. Nordlinger: How did they happen to find it? By seeing the bag, by seeing a bag and that's all, a paper bag dropped from a window on to the fire escape.
Hugo L. Black: That's this case is about?
Louis M. Nordlinger: Yes, Your Honor. Onto a fire escape.
Hugo L. Black: That's quite different from just seeing the bag, isn't it?
Louis M. Nordlinger: Well, possibly so. You know we have a case, if Your Honor please, that under the name of Work (ph) against United States again, a Court of Appeals case. Here, the police approached the house and the girl who is in the house as inconspicuous she could, just walked out the door as the police were coming in. One of the police turned around and saw this girl stuffing something in a trash basket and then she came in. Here, the Court of Appeals said, “This girl acted involuntarily because of the presence of the police and this was not abandoned property.” And the police said, “no right to open the trash can and take out the narcotics that the girl had put in here.”
Hugo L. Black: Acts of involuntary --
Louis M. Nordlinger: The girl acted involuntarily.
Hugo L. Black: What do you mean by that?
Louis M. Nordlinger: That the actions of the police compelled her to act that she didn't put this material in the trash can expecting that it will be taken away by the rubbish disposal people. She put in the trash can under the emergency situation of seeing the police come in.
Speaker: To hide it from the police?
Louis M. Nordlinger: To hide it from the police. Yes, Your Honor. And we have that -- we have that in a number of cases that the Commonwealth -- the petitioner seeks to distinguish another case which is relied on by the United States Court of Appeals, the case of Hobson and in the Hobson case which appears in both of our briefs, we have something of this element. We had officers approaching the house and somebody in the house opening a back window just like in Painten's case and throwing the material out the back window and it fell all the way to the ground. Now in this case, in Hobson, the Court had found that there was the involuntary act of the tenant and this was the cartilage, within the cartilage of the property and within the protected area under the Fourth Amendment. The petitioner seeks to distinguish this saying that in the Hobson case, officers broke through the door and this compelled the property to be thrown out the window but of course if the Hobson case is read, this is simply not the factual situation. In Hobson, the material was thrown out the window when the police came to the door and in fact in Hobson unless I'm mistaken be a the same thing, somebody came to the door and said to the police, “Wait a minute, my wife has to get dressed” and closed the door and I think they use a peep hole in that case. They didn't have to open the door, but in any even in Hobson, the property was thrown out the window when the police came to the door and then the officer posted in the back of the house called to the men in front and said, “They just threw something out the window.” And with that, the officers burst into the door. So it was not the bursting through the door that compelled the throwing of the material out the window in Hobson. It was the appearing on the scene by the police officers which provoked the tenant to throw the material into his backyard and this was held protected, a protected area and the material was not admissible. I think this is a good case employed by the United States Court below and I think it's a case that have every bit of validity before the Court today. You know, both my distinguished brother and I come from Massachusetts and we have a tradition in Massachusetts that began 200 years ago and this Court knows very well when James Otis, Jr. argued for the discontinuance of the writs of assistance and I feel as though Massachusetts should not be down here today arguing before this Court that the right of privacy and the Fourth Amendment should not receive every bit of protection. It should not have every bit of substance as pronounced by this Court, traditionally before this Court and should be limited. If this Court were to decide in a manner in which the Commonwealth of Massachusetts is asking today. I think it would mean a regression from what the Fourth Amendment has come to mean. I think it would be a diminution surely of what the right of privacy means in this country today. We've come a long way with the development of the Fourth Amendment and the right of privacy. I don't think that there's anything compelling either in this case or in the general picture of the country today that warrants detracting from what the right of privacy has come to mean and what the Fourth Amendment has come to mean. Thank you very much gentlemen.
Earl Warren: Attorney General Richardson.
Elliot L. Richardson: May it please the Court. Massachusetts certainly is proud of its contributions historically to the development of the protections of the individual. At the same time, Massachusetts has also recognized the validity of the observation of this Court in Kerr against California that the states are not precluded from developing workable rules governing arrest, searches and seizures to meet the practical demand of effective criminal investigation and law enforcement. The courts of Massachusetts indeed from their earliest history have been engaged in the process of developing just such workable rules. In so doing, they have been mindful in the words of the supreme judicial court in Massachusetts in Commonwealth against Lawton that a police officer in the solution of a crime and in the presence of when he thinks committed it, is not adjudged with time for mature consideration and the contrary in this position more nearly resembles that in the sentry it is post in time of war, upon his alertness and judgment depends the safety of many? The importance of this case, we believe is that, we have here on the one side a series of steps taken by police officers which in the point of view of those of us who represent law enforcement do constitute the exercise of alertness and intelligence in the carrying out of their responsibilities. The issue before this Court is whether in substance it shall validate that kind of course of conduct or whether it shall say to the police, “No, you may not do this” even though each step along the course they take is justified in the light of the knowledge and experience and the information available to them at the time.
Potter Stewart: Mr. Attorney General, I -- if we can return for a moment just to the jury facts. Your brother represented that the facts were that after they went into the room, the first thing that one of the policemen did was to reach into Mr. Ash's pocket. Do you agree with that as a matter of fact or do you dissent to the facts?
Elliot L. Richardson: Yes, sir. Your Honor, this is dealt with on page 53 of the record in the findings of the District Court, noticing a bulge in Ash's pocket, McNamara stuck his hand into it and found about $200.00 and $10.00 and $20.00 bill stuffed in the pocket. The Court then goes on, there were some conversation between McNamara and the occupants of the apartment, no search of Painten purse.
Potter Stewart: District Court's finding.
Elliot L. Richardson: This is the District Court's finding.
Potter Stewart: No search of Painten.
Elliot L. Richardson: No search of Painten's person or his apartment took place at this time.
Potter Stewart: And Ash of course -- Ash's case is not before it?
Elliot L. Richardson: That is correct Your Honor.
Thurgood Marshall: Mr. Attorney General, when they went to this apartment with the sole purpose of questioning Painten, is that correct?
Elliot L. Richardson: Yes, insofar as it appears. They went there simply to talk to him to find out whatever they might find out and I believe the issue is quite correctly stated that they reappoint in the course of the questioning which is may police officers under these circumstances knock on the door of a person to make that sort of inquiry and be admitted for the purpose.
Thurgood Marshall: Well, why did they assign an officer to the back, while they were questioning?
Elliot L. Richardson: They knew that these were men who had been involved in police records. There had been hold ups. They did so where we submit simply as a manner of wise precaution under all the circumstances, indeed a precaution which the events prove to have been well taken.
Thurgood Marshall: Well, I thought you said they only wanted to talk?
Elliot L. Richardson: Well, they certainly would not have been in the position in our view to have taken any of our action, but for the circumstance that the bag appeared and I might add it was on the second floor, below the floor of the apartment in which -- from which it was dropped and they would have gone away. We suggest that this is --
William J. Brennan, Jr.: That is Mr. Attorney -- they were around say the third floor and they stopped in the first, is that it?
Elliot L. Richardson: It dropped to the second.
William J. Brennan, Jr.: From the fourth?
Elliot L. Richardson: From the third.
William J. Brennan, Jr.: Oh, from the third.
Elliot L. Richardson: -- with one floor below --
William J. Brennan, Jr.: One floor below.
Elliot L. Richardson: -- when retrieved by Officer Rufo. We submit --
Earl Warren: Mr. Attorney General, what will you do with the finding of the District Court on page 55? He said, I like what I have in mind in calling additional officers by radio in the placing of officers to guard both front and rear exits of the apartment building is far more indicative if for a planned arrest and of an intended interview?
Elliot L. Richardson: Mr. Chief Justice, we would say as to that that if the intent of the police officers is to controlling test here that there maybe basis for the courts below, both to have found that they did intend to make an arrest, but our position basically is that the finding of their intent whether or not substantiated in the record, it should not control the question whether or not the ultimate arrest and search were valid.
Earl Warren: You have in this respect, the Court of Appeals approved the finding of the court below, did it not?
Elliot L. Richardson: Yes, and indeed they --
Earl Warren: Aren't we required to give a very, very strong consideration to the finding of two courts below. Why do you ask us to --?
Elliot L. Richardson: Well, Mr. Chief Justice, we believe that the central issue in this case is whether the finding of intent should control the determination whether or not a valid arrest and search took place. Our position basically is that granted that the findings may have been correct as to the intent of the police officers and then what they did in fact and the reasonableness of what they did in the light of all the circumstances ought to be the test and alone should be the test of whether or not their action was or was not constitutional.
Earl Warren: But would you ask us to abrogate this finding. It follows, this follows immediately from what I read before, it follows that the entrance into the Painten's apartment without a warrant and absent -- any probable cause to arrest any occupant thereof was “under color of their police authority” and there was “no valid basis in law for the intrusion” citing Johnson versus United States.
Elliot L. Richardson: We suggest Mr. Chief Justice that even if it had been their intent to make an arrest that that intent alone would not invalidate the entry and in fact, they didn't make an arrest. The difference between this case and the Johnson case cited there is that they smelled the opium in the Johnson case. The occupant of the hotel room opened the door and the officer said, “You're under arrest. We're going to search the hotel room,” which they did and then found the equipment used for smoking opium. In this instance, they went in and they were talking to them three minutes in the kitchen when Rufo came up and said, “He had seen something dropped out of the window.”
Earl Warren: But before they did any talking even they went through as close to the other man's clothes to some extent and they extracted his money from the --
Elliot L. Richardson: I think the only possible explanation of that is that the officer saw the bulge and presumed that it may be a gun. In any event, nothing turns on this and although, he reached into the pocket immediately, they were still conversing three minutes later when Rufo came up the stairs to say that he had seen the gun dropped out of the window.
William J. Brennan, Jr.: Well just so I'm very clear with you Mr. Attorney General, I gather that the Commonwealth's position is this. It's utterly irrelevant that they had an intent to make an arrest or a search when they appeared at Painten's door. That there are factual circumstances that followed, it's clear that there was a consent that you argued to the officer's entry and that the things that followed thereafter after their entry justified the arrest as an arrest then certainly on probable cause and that the search of the apartment later was incidental with that arrest, is that it?
Elliot L. Richardson: Yes, Mr. Justice Brennan, that very simply and accurately does state to the condition of the Commonwealth.
Earl Warren: It's your position that on the findings of the fact that the District Court approved by the Court of Appeals to the effect that there was not a probable cause for them to enter, should be reversed by us?
Elliot L. Richardson: Mr. Chief Justice, we concede that there was no probable cause for arrest at the time of entry, but what – our position is that the entry should not be invalidated with all the consequences then flowing from this by the mere circumstance that in the mind of the police officers' entering was the intent as found by the District Court and the Court of Appeals to make an arrest. We say first of all that this is implausible in the light what actually transpired, but in any event as Mr. Justice Brennan has just restated our position that it is irrelevant.
Abe Fortas: Excuse me, if I may take another moment. The difficulty about United States against Johnson as I see it is that in that case there was a consent or acquiescence consent -- consents and there was a smell of opium coming out into the hall but this Court held that search warrant was necessary and that the entry was unlawful because it was compelled in the sense that there's always coercion implicit in a police request to come in.
Elliot L. Richardson: Well, Mr. Justice Fortas, I would suggest that the -- however, one characterizes the terms of legal conclusions what transpired in that case that the fact that the moment the door was opened, the agent said, “you're under arrest, we're going to search the room.” There's a fundamental distinction. There the issue essentially is, was there probable cause for an arrest and search consequent thereon at the time the arrest was made.
Abe Fortas: The issue though in the case as I understand it is whether the entry, not the arrest but the entry was a lawful entry and this Court held that the opinion by Justice Jackson that since there was no search warrant and since coercion is implicit and the request for police, the entry was unlawful.
Elliot L. Richardson: Mr. Justice Fortas, I would have suggested that the essence of that holding is summarized in the statement by Mr. Justice Jackson for the majority, thus, the government is obliged to justify the arrest by the search and at the same time, to justify the search by the arrest, this will not do. Now, we would concede here that there was no cause of arrest at the time of the entry. So, this would suggest to me at least that the lawfulness of the entrance was not the controlling issue there and certainly, we do not believe that it is here.
Abe Fortas: Thank you.
Hugo L. Black: Do you think the court's conclusion -- a courts conclusion that there is or it is not a probable cause as a pure question or facts?
Elliot L. Richardson: No, Your Honor. If I understand the terminology, I would say that it was a mixed question of law and fact. Indeed --
Hugo L. Black: One certain facts that it is -- that those facts, taken together to constitute what's in the mind of the court to consider a reasonable probable cause.
Elliot L. Richardson: Yes, Your Honor.
Earl Warren: Gentlemen, before we go to the next phase, I would just like to say that I understand Mr. Nordlinger, who represents this indigent defendant as a member of the Voluntary Defenders Committee of your community. This Court considers that it's very important that indigent defendant should be represented through all the courts including this and we are always comforted by the fact that any bar of any community would have an organization of that kind that can see to it that every indigent defendant is given his rights in Court. And of course, we're always comforted by the facts that the state that they represented in the proceedings before this Court and I would just like to express my appreciation to you Mr. Nordlinger for having undertaken this public service as we view it. And you Mr. --
Louis M. Nordlinger: Thank you.
Earl Warren: -- Attorney General for having ably represented your state in this matter.
Elliot L. Richardson: Thank you very much, Mr. Chief Justice.
Louis M. Nordlinger: Thank you, Mr. Chief Justice. Thank you.