Warren E. Burger: We will resume arguments in Dalia against the United States. Mr. Frey you may proceed.
Mr. Andrew L. Frey: Mr. Chief Justice and may it please the Court. Petitioner has presented three separate grounds in support of his contention that the agents' surreptitious entry into his unoccupied business premises for the purpose of planting of listening devices that were necessary to carry out the court authorized eavesdropping was unlawful and requires suppression of the intercepted conversations. First, although he didn’t put it first in his brief, but I think he has continued to maintain the position, he contends that such surreptitious entries are absolutely barred by the Fourth Amendment regardless of the existence of any Congressional authorization for them or the presence of any court order authorizing them. Second, he contends that even if such entries could be carried out consistently with the Fourth Amendment, Congress has either prohibited or failed to authorize them in Title III or elsewhere. Third, he contends that even if there is no constitutional or statutory barrier to such entries, the agents' action in this case was unlawful because of their failure to procure from the District Court an express authorization of the entries that were necessary to carry out the court’s Title III order. Now before I begin the argument I think there is a factual background that came up slightly yesterday and there is some misconception around as to the question of the need to make trespassory entries for purposes of planting the listening devices in connection with eavesdropping orders. There is language in Berger opinion of this court 10 years ago, which I think was still several decades before its time in terms of talking about electronic beams from outside and what we’ve called in our brief The Buck Rogers kind of equipment. As matters stand today there are very, very few cases if any of surveillance of interior areas where that kind of equipment is useful as a practical matter. Similarly the martini olive transmitter and so on is virtually never used in these cases because radio transmitters are not used because they are easily detected by a scanner that you can buy at RadioShack for a few dollars. So that in the normal case when you are talking about a Title III eavesdropping order of an office or some interior area you are talking about the need for some kind of what was viewed as a trespassory entry prior to Katz. Now in -- we’ve been advised by the FBI that in perhaps slightly fewer than 10% of the cases the Spike mic through the wall kind of approach is available and that would be normally the cases where the FBI is able to obtain control of the adjoining space, for instance if it’s a hotel room and they can rent the adjoining hotel room or an office and they can rent the adjoining office. But in all other cases some kind of a physical entry of the agents into the premises together with a fairly extended period of time necessary because this is a wire installation, it’s not a matter of putting a radio transmitter and but of installing something and running wires out to a receiver is necessary. Now they do use ruses in a certain proportion of the cases, but the vast majority of the cases are entries such as occurred in this case.
John Paul Stevens: Mr. Frey you described what the practical situation is today. How much of that was explained to Congress during the hearings on Title III?
Mr. Andrew L. Frey: Well, we have cited in our brief about 12 to 14 illustrative instances of testimony before Congress about how surveillances were conducted and it was clear to Congress that trespassory entries of the kind that occurred in this case would be frequently necessary.
John Paul Stevens: Senate report doesn’t mention that subject at all. It does mention the cases in which the Spike Mic was used and some of the other cases where there was no entry, but there is nothing in the Senate report that I could see where they discussed anything like what you’ve just described. You do and I’m aware of the fact that there are references in the hearings that you described.
Mr. Andrew L. Frey: Our argument, there are references in the hearings, there are references in the debates, there are references in the President’s Commission report which was relied on heavily by Congress and of course Berger itself which was a single --
John Paul Stevens: Many of those references indicate that that even a majority of the cases there would be need for a surreptitious entry. They do refer to the need on occasion, but they also cite cases which indicate that frequently it could have been done without a surreptitious entry. So how do, as I’m just wondering what the state of knowledge of the Congress --
Mr. Andrew L. Frey: Well, I think that to some extent we must speculate about what individual members of Congress expected. However, I will get to the point that there is evidence I think in the Senate report itself that Congress intended to allow the installation of eavesdropping devices of the kind that we have in this case.
John Paul Stevens: Yes, but does it -- does that evidence in the Senate report also go to the point of surreptitious entry, that’s it?
Mr. Andrew L. Frey: Well--
Thurgood Marshall: [Inaudible] what the man is going to say?
Mr. Andrew L. Frey: No, I think it’s clear, but there is talk and Mr. Ruprecht suggested yesterday that there might be many ways you might insinuate a Confederate or an informant and well that simply is not practical. You might use a ruse, but what I’m suggesting is the kind of ruse that you need is one that gives you access to the man’s office for a couple of hours.
John Paul Stevens: I understand that, but the point that interested me was that the Senate report relies very heavily on this Court’s previously decided cases, which included the use of a mic on the outside of a telephone booth and the Spike mic. Well they may not have focused on this problem is all I’m suggesting because of the emphasis on the cases from this Court?
Mr. Andrew L. Frey: Well, I think what, I don’t -- I can’t cite you at the moment any particular place in the legislative history where there is a statement that reflects Congress’s understanding of the facts as I’ve told you this morning, but I think it is clear that they knew and there is absolutely no place in the legislative history that suggests that they intended to prohibit surreptitious entries of the kind that occurred in Berger. Let me pass for the moment the broad constitutional contention of petitioners because I think that is sufficiently insubstantial that I should get on to other more important questions in terms of the question of the existence if any is necessary of statutory authority for a surreptitious entry to install listening device. Now I believe that on close analysis to answer to this question is fairly clear and it is as we are arguing it, but the Sixth and Ninth Circuits have concluded that there is no power in the Federal judiciary to authorize eavesdropping that entails surreptitious entry into private premises. And these decisions of course are of grave concern to the Department of Justice. So they have rendered it virtually impossible for the government to use the authority conferred by Title III to intercept oral communications in the effort to combat organized crimes in the State, organized crime in the States within those circuits. Now in considering this question of statutory authority I think we should first look at Title III itself and consider three possible conclusions that might be reached about the effect of that enactment. The first which is what I understand petitioner’s argument to be is that Title III prohibits surreptitious entries into private premises to install listening devices. The second, which we would contend on the other side is that Title III is itself a source of authority for such entries. The third possible conclusion is that Title III neither confers nor withdraws authority, so that the source of authority, if any, specific source is necessary must be sought elsewhere. Now with regard to petitioner’s proposition and I think the conclusion of at least the Ninth Circuit and the Sixth Circuit did give more consideration to alternatives that Title III’s failure to contain express provisions regulating the authorization of trespassory entries to plant listening devices reflects a congressional purpose or at least a congressional accomplishment of the end of banning or withdrawing authority for such entries. Now we submit that there is no basis for the court to impute the Congress such bizarre and self defeating action. After all while Title III was designed in part to protect the citizenry from unconstitutional invasions of communicational privacy as well as from non governmental invasions of communicational privacy, it was indisputably also intended within constitutional limits to enable law enforcements officers to use electronic surveillance to combat organized crime. And what was the case that Congress was studying most closely in its efforts to design a constitutionally acceptable system to enable law enforcement officers to conduct electronic surveillance, that case was Berger against New York and what was it that the officers did in Berger, that Congress we submit plainly sought to allow in future cases, they surreptitiously entered a business office to plant a listening device.
Harry A. Blackmun: Mr. Frey at that point, would your argument be the same if the surreptitious entry was into a private residence as distinguished from a business office?
Mr. Andrew L. Frey: Well we would reach the same conclusion, but it is possible that the court would view the issues. I mean we don’t deny that there is some more sensitivity in entering a private home than there is in entering a business office, although both are protected by the warrant clause of the Fourth Amendment, but I think we would ultimately come to the same position. Now is it reasonable to conclude that Congress while on the one hand trying to legalize law enforcement eavesdropping in circumstances like the Berger case, on the other hand sub silentio concluded that surreptitious entries such as were in Berger were so offensive that they ought not to be permitted. It is that implausible premise that petitioner asked this Court to adopt and that underlies the Sixth and Ninth Circuit decisions in Finazzo and Santora. Now I’d just come back and mention that while the legislative history is not as clear as we would like, there is no question that Congress was repeatedly told that the kind of eavesdropping in Berger and that it was studying would often or usually involve surreptitious physical entry into the premises where the conversations are to take place. Now it nevertheless decided to authorize interceptions of oral communications without restriction as to the places where such communications could be intercepted. And in fact we quote a statement by Senator Tydings in our brief at page 38 in which he describes a fact situation very much like Berger and he was one of the principle sponsors of the Bill and states his view that it is offensive that this mafia figure or organized crime figure who he was talking about could not be convicted and that the purpose of the Bill was to facilitate or legalize under appropriate controls the kind of entry to plant a listening device that occurred in that case. Now petitioner stresses what he perceives to be the Congressional silence on the subject to surreptitious entries as evidenced that it did not intend to permit them for Title III searches, but Congress was not utterly silent. The Senate report in describing what the legislation generally set out to accomplish and it stated at Page 40 of our brief said, “Legislation meaning the constitutional standard set out in the decisions,” referring to Katz and Berger, “And granting law enforcement officers the authority to tap telephone wires and,” and this is just the key language, “install electronic surveillance devices in the investigation of major crimes and upon obtaining the court order which is the purpose of Title III of S917,” and then they list the groups that have endorsed that legislation. So while the statements don’t proliferate on the subject we take that as a clear statement of the congressional intent to authorize this. Now we submit that Congress did not dwell --
Potter Stewart: What you have read doesn’t say much more than the statute, does it?
Mr. Andrew L. Frey: Well, I don’t think the statute talks about installing--
Potter Stewart: Will you read that again if you, sorry I [Inaudible] my colleagues, but --
Mr. Andrew L. Frey: The statement says that in describing the – well, I’ll just take a little bit out of order in describing what’s the major purpose of Title III. The statement says, “Granting law enforcement officers that authority to tap telephone wires and install electronic surveillance devices in the investigation of major crimes and upon obtaining a court order.”
Potter Stewart: Well, obviously if you are going to have electronic bugging, something has to be installed?
Mr. Andrew L. Frey: Well no, not as they were thinking of -- if they were thinking as has been suggested--
Potter Stewart: The mic has to be installed?
Mr. Andrew L. Frey: Well, yes but the suggestion has been made in for instance in the opinion in Finazzo that often you don’t have to drop the transmitter in the martini, you use the parabolic mic from a distance, many --
Potter Stewart: Putting a olive in a martini is an installation of the olive into the drink?
Mr. Andrew L. Frey: Well then I don’t think that’s the sense.
Potter Stewart: In other words, install is the only word that’s the, that’s the word I think --
Mr. Andrew L. Frey: I think that’s a significant word and that’s the word that I’m calling for the Court’s attention here, yes.
John Paul Stevens: Mr. Frey, but just before we leave with that, because that doesn’t mention the surreptitious entry and I was wondering in Berger itself, I know it was listening device in an office, but does the record in that case tell us whether it was just installed surreptitiously or by rules.
Mr. Andrew L. Frey: I --
John Paul Stevens: You can’t tell from the opinion, right?
Mr. Andrew L. Frey: I think it was installed surreptitiously. We’ve checked the record and I am advised that it was installed surreptitiously and that there was no separate entry or at least in the first of the two bugs in Berger and the statute of course contained no express entry provision.
John Paul Stevens: Is there anything that in the legislative history that shows that Congress knew that the device had been installed surreptitiously as opposed to by rules?
Mr. Andrew L. Frey: I am not aware of anything.
John Paul Stevens: You are not aware of anything.
Mr. Andrew L. Frey: Now, it’s our argument that Congress did not dwell on the subject of surreptitious entries because it simply didn’t suspect there was any serious problem. Nothing in any prior decision of this Court had sounded any alarm on this particular subject and of course Rule 41 governing conventional searches itself says nothing about express separate entry authorization. We think that Congress assumed that having authorized the search itself and a detailed provision satisfying what it understood the Fourth Amendment to require, it was thereby authorizing the implementation of the search by the means that were reasonably necessary to do so. Now at this point I would like to make our position as to the statutory source of authority clear because in reading over our brief and preparing for the argument, I am afraid it may state the matter in a fashion that it’s subject to misinterpretation. In Part 2 of our brief, we were addressing the contention of petitioner and the conclusion of the Sixth and Ninth Circuits that Title III does not itself authorize entries to plant listening devices and that accordingly such entries may not occur. We showed convincingly I hope that if that promise was correct, the conclusion was not correct because Rule 41 provides the power to authorize trespassory entries if one must look elsewhere then Title III for such power. Now we didn’t mean by this argument to suggest that Title III is not itself a source of authority. We believe that it is, but we recognize that there are two ways to look at the entry that took place here. The first which several courts have adapted is to view it as an incident of the search authorized by the Title III order, it's so viewed and we believe this is the best view of it. Title III itself supplies the authority for the entry to carry out the search, just as Rule 41 implicitly authorizes the entry to accomplish a conventional search. On the other hand several courts have concluded that the entry entails a wholly separate invasion of a distinct constitutionally protected interest rather than an intrusion ancillary to the electronic surveillance with which Title III is concerned. Under that view, one could perhaps reasonably contend that Title III supplies no authority for the entry. But that conclusion does not resolve the inquiry in petitioner’s favor, rather as we say in our brief, Rule 41 supplies the authority for distinct trespassory intrusions of the kind that petitioner by hypothesis finds present here. Now unless the Court has further questions on the statutory issue, I’ll pass on now to the question of the need for an express entry provision.
John Paul Stevens: Mr. Frey, excuse me.
William H. Rehnquist: Mr. Frey, what if in the course of execution of a warrant such was upheld by the Third Circuit here, an officer would have wandered into the bed and then go through the dressers, drawers and finds some stuff and there and seek to later offer that in evidence. Do you think that would be admissible?
Mr. Andrew L. Frey: No. Indeed we’ll come to that in the portion -- I don’t think -- I’ll come to that in the next portion of my argument discussing the need for --
Potter Stewart: Anything in plain view would be admissible if you are right, that is currently --
Mr. Andrew L. Frey: In the course of doing what is reasonably necessary to carry out the court’s Title III order, anything that comes into plain view would be admissible.
Potter Stewart: If you were lawfully present --
Mr. Andrew L. Frey: If you were lawfully present.
Potter Stewart: Then anything in plain view would be admissible?
Mr. Andrew L. Frey: Yes. I would --
Potter Stewart: Before you proceed, I just want to identify one problem you may come to it later in your argument. Do you view Section 3109 as changing the law that preexisted in this test statute, maybe you are going to cover that later.
Mr. Andrew L. Frey: Well, we view Section 3109 as imposing a restriction on the manner in which the police may execute search warrants of houses and we believe it applies only to occupied premises.
John Paul Stevens: You don't view the statute as enlarging the officer’s authority?
Mr. Andrew L. Frey: We don’t and we think that the statute after all was originally adopted as part of a package of laws in the 3100 series that most of which is now incorporated in Rule 41. So that our understanding is that Rule 41 conveyed to Magistrates the authority to authorize searches and to officers the authority to carry out such searches, and 3109 passed a special rule in accordance with the common law rule and perhaps constitutionally required I think that’s an issue that’s not clearly settled, regarding --
William J. Brennan, Jr.: That certainly wasn’t settled in Miller?
Mr. Andrew L. Frey: No, we’re not suggesting that it's settled and it was the subject of a division of opinion in Kerr.
William J. Brennan, Jr.: There was a division in Kerr?
Mr. Andrew L. Frey: Yes.
William J. Brennan, Jr.: But Miller was certainly not a constitutional --
Mr. Andrew L. Frey: But we think --
William J. Brennan, Jr.: Was it?
Mr. Andrew L. Frey: No, I think you said in Kerr that Miller was a supervisory power opinion, but it was your view that that was a constitutional underpinning. But for purposes of this case I don’t think it’s necessary for the Court to consider whether 3109 is constitutional or statutory because we think it's plain that 3109 doesn’t apply to this kind of --
John Paul Stevens: It just goes to question of whether there might be need for statutory authorization that’s the only relevance of it and I’m not expressing a view on it, but --
Mr. Andrew L. Frey: Well, the question I have argued so far that there is statutory authorization. There is an argument that no statutory authorization is needed as well and that depends on how the court views the relationship of the trespassory entry to the search that was authorized by a court order and depending on how it’s viewed you may or may not --
Thurgood Marshall: About the statutory point, what would be wrong with the judge asking how are you going about this, are you --
Mr. Andrew L. Frey: Nothing.
Thurgood Marshall: Knock the man’s door down or not.
Mr. Andrew L. Frey: Excuse me.
Thurgood Marshall: Are you going to knock the man’s door down?
Mr. Andrew L. Frey: There would be nothing wrong with the judge inquiring into it and indeed --
Thurgood Marshall: What about requiring the judge to do that, to just see how far you are going?
Mr. Andrew L. Frey: There, in our view it’s, it is --
Thurgood Marshall: Of course yeah and judge didn’t say anything --
Mr. Andrew L. Frey: I understand that Mr. Justice Marshall. In our view it is good policy for us to go to the Magistrate, explain to him or judge in a case of a Title III order, explain to him how we are going to carry out the entry and obtain in the Title III order an express authorization, that is now the Department’s policy and regardless of the outcome of this case we would continue that policy because --
Warren E. Burger: Didn’t Judge Higgin Botham say in his opinion something to be effect that it would be prudent to disclose to the judge from whom the warrant is sought that they take this step, do this examination?
Mr. Andrew L. Frey: There is no -- he said that. We agree with that but the fact that we may have been imprudent in this case is not a basis for over turning Mr. Dalia’s conviction. Now turning to the question of whether there was a need for an express entry authorization in the eavesdropping order. There is of course no such requirement contained and visible in Title III and we suggest that the issue is a purely constitutional one. Now, I want to begin my discussion at this point by making clear that we are not suggesting the no warrant at all is necessary for surreptitious trespassory entry into an office or home. Of course, our argument is that the warrant issued by Judge Lacey in this case authorizing the interception of oral communications in petitioner's enclosed office confer the requisite authority for the entry that was made. Cases like Silverman and Katz thus do not help petitioner at all since they involve no warrant of any kind. Now it’s undisputed that the Court’s Title III order in this case met all the stated requirements of the warrant clause of the Fourth Amendment. It was sought under oath, a probable cause was shown and the order particularly described the place to be searched which is of special relevance here and also the things to be seized. The entry was a necessary aspect of the execution of the court’s order, but in our view it was implicitly authorized in the same way as I’ve said before than any entry necessary to execute a conventional search as implicitly authorized by Rule 41 warrant. Now in making our argument, we are also not contending and this gets to Justice Rehnquist's point that the Title III order alone suffices to give the agents an unlimited license to do as they please in executing the order. Just as with the conventional search, the agents must act reasonably in the means they select to implement the Title III order and the reasonableness of their actions is subject to post search judicial inquiry. Here that inquiry occurred and both lower courts found that the surreptitious entry was in fact reasonable and necessary to execute the eavesdrop order. Now, as I pointed out earlier the vast majority of eavesdropping of enclosed interior locations will require a physical trespass. The situation is not materially different from that of a conventional search. Now, often a single conventional search can involve an intrusion into several arguably distinct privacy interests. Yet, the satisfaction of the express requirements of the warrant clause is normally considered sufficient. Now, let me give you a hypothetical of a warrant to search the second floor rear room of a house. In the course of executing that warrant which particularly describes the place to be searched, the officers may hypothetically at least have a choice of entering the front or the back door, walking through the living room or the dining room or some other rooms where they are arguably distinct privacy interests. I am aware of no case which suggest that they have to get a separate warrant or that the magistrate expressly has to describe how they do it. That's not to say that they don’t have to do it reasonably when they go into the premises they can’t go into other bedrooms that are not on the way to the bedroom that they’re authorized to search. Now, let me come back to a point that Mr. Justice White made yesterday which I think is a very powerful point in our favor on this issue and that is the effect of arrest warrants on the authorization of interest. I think the law generally is at least in the lower courts and there is some suggestion implicitly in this Court although I assume the question is open to reexamination that an arrest warrant would authorize the officers to enter the home of the person named in the warrant on at least let’s say probable cause to believe that the person is present in order to carry out the arrest. Now, this is a very parallel situation to the present situation. Indeed logically our case is, I think stronger because in the case of an arrest warrant, there is a very substantial chance that the individual will be in a public place or alternatively that when you knock at his door, ring his bell, he will come to the door and no entry will be necessary. Nevertheless, the state of the law in the lower courts at least is clear that the arrest warrant authorizes the entry and I may mention another fact that makes our case much stronger. We have a description in our Title III order of the location, the entry into which is being challenged here, an arrest warrant would contain no description. So it’s difficult for me to see if the Court rules against us in this case how it can be squared with the present doctrine and an arrest warrant appears to justify an entry into the suspect’s premises. Now, finally just to make a couple of or to make one other point, the Court is free, it has the power as Justice Marshall suggested to ask the officers what are you going to do, how are you going to do it to consider restrictions that are deemed wise to impose on the manner of executing the search and I think this is true with conventional searches as well as with the Title III search. And the existence of this power it seems to me elevates greatly any concern about the agents barging in.
Thurgood Marshall: Suggesting that he be required to do it.
Mr. Andrew L. Frey: Well --
Thurgood Marshall: And you wouldn’t object to them, would you?
Mr. Andrew L. Frey: Well we would object if you’re doing it by deciding this case against us, but otherwise we wouldn’t object to it.
Thurgood Marshall: It maybe alright to put it in a foot note?
Mr. Andrew L. Frey: No, we would not object to your expressing the view if you felt so as the Chief Justice pointed out the Court of Appeals did in this case and several others have done, Judge Grufein I think did it in the Scaffidi case. It’s a good idea. We think it would be prudent for the government to do it, we agree.
Thurgood Marshall: He said [Inaudible] the rule. But now the present rule is that you do explain to the jury.
Mr. Andrew L. Frey: Well, we don’t -- we are not clear that except in the exercise of the court’s supervisory power over the conduct of district judges granting Title III orders, it is possible that the court could say that we want the judge in issuing an order to address themselves to this problem and to put a provision regulating the manner of entering into Title III order, it’s possible that you could do that.
Thurgood Marshall: I misunderstood, I thought you said it was the rule of the department?
Mr. Andrew L. Frey: Well, it is the department’s policy to obtain an express authorization from the court for each entry that is made to install or to maintain or to replace.
Thurgood Marshall: But there is no requirement that they tell this court how they are going to make the entry.
Mr. Andrew L. Frey: Well, I think it’s our, we are talking about surreptitious entries now.
Thurgood Marshall: Yes sir.
Mr. Andrew L. Frey: I’m not sure exactly how we do it, but I think in practice the judges are made aware of how we are planning to do it.
Thurgood Marshall: But it wasn’t in this case?
Mr. Andrew L. Frey: No, but this case was before the adoption of the policy. We adopted the policy after the DC circuit’s decision in Ford called to our attention the difficulties --
Thurgood Marshall: We will not find it obviously.
Mr. Andrew L. Frey: You will find it in our brief. We discuss it in our brief and I think we’d quote from it at page --
Thurgood Marshall: I missed it.
Mr. Andrew L. Frey: Page 56 of our brief. Okay.
William H. Rehnquist: Mr. Frey, we heard a case yesterday argued I don’t know whether you were here or not saying in which the criminal defendants claimed that violation of a regulation issued by an Executive Department required exclusion of evidence even though neither the constitution or the statute required it. I take it you’re not suggesting that you’d be satisfied with a decision by this Court saying that a departure from departmental policy that you have referred to would require exclusion.
Mr. Andrew L. Frey: We would be very unhappy whatsoever decision, yes. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Earl Warren: -- 8 Thornton A. Jenkins petitioner versus Delaware. Mr. Herndon, you may proceed with your argument.
Henry N. Herndon, Jr.: Mr. Chief Justice and may it please the Court. This is a murder case in which the defendant's conviction of first degree murder was reversed by the Delaware Supreme Court for a trial de novo. He was tried again after this Court's decision in Miranda and convicted of second degree murder. The Delaware Supreme Court subsequently entered a judgment affirming that conviction, and this Court granted certiorari to review that judgment. Two issues are raised in this proceeding. First, are the standards of Miranda applicable to all trials including retrials commenced after the decision was announced? Secondly, does the warrantless search of a suspects home based solely upon the consent of his co-occupant, violate the suspect's rights under the Fourth Amendment where he was physically present and immediately to give or withhold his consent, and where the purpose of the search was to obtain evidence not against his co-occupant, but against he suspect himself? The facts are not in dispute. Indeed, the statement of the case in the brief of the respondent is identical to that in the petitioner's brief. The very and very summary form of the facts are these. On the morning of March 17, 1965, officers of the Wilmington, Delaware Police Department were called to investigate in apparent homicide. The victim was found in a junkyard. Subsequent examination of the body by an assistant medical examiner disclosed that the victim had died sometime the prior evening. The petitioner and a companion had been observed on the street in the vicinity of that junkyard on that prior evening. They had been apprehended and taken to the police station where they were questioned by a Sergeant Maloney and subsequently released. Sergeant Maloney's name will come again. Between 9 and 10 o'clock on the morning of the March the 17th, that is the day after the initial apprehension. Sergeant Maloney went with four other officers to the home of the petitioner. His purpose was to see if the petitioner and his companion of the prior evening were there. The petitioner's lady friend, Ms. Marshall, answered the door and Sergeant Maloney indeed asked if Thornton Jenkins, the petitioner was present. The petitioner and his companion, his lady friend and three other persons, being all of those present in the house were apprehended at that time and taken to the detective division of the police station. A bit of geography might be of assistance here. It seems that all of the county and municipal functions in the New Castle, Delaware are taking care of in a single building called the Public Building, which has at one end the city functions and at the other end, its county functions. The police station is located in the city end of that Public Building. At the police station, the petitioner was placed in a so called recording room located in the detective division. At 11 o'clock that morning, he was charged with night prowling. At 11:40 that morning, Sergeant Maloney, according to his testimony, advised the petitioner's lady friend of and his words “her rights” and requested permission to search the house. She told him that he could search the house, which he then did, discovering of junk and clothing which were seized and later introduced into evidence at the trial. I'll return when we come to the subject of the validity of this search to some more specific facts on that issue. Now, later that same afternoon at 1:15 P.M., the petitioner was formally charged with fourth degree burglary and murder in the first degree. Subsequently at 7 P.M., an incriminating written statement was obtained from him. The purpose of this confession was of course to verify what the police officers had already concluded, namely that the petitioner was that person, or at least one of them who had committed the homicide then under investigation. Although, the evidence is conflicting upon what warnings were given to the petitioner and when they were given regarding his Fifth Amendment rights. For the petitioner for example, insist that he was not given any warnings until after he had signed the statement. It is clear that he was not advised of his right to have counsel supplied to him in the event he wished and was enable to afford counsel. Timely motions to suppress both the products of the search and the statement were filed both before and during the trials and were denied. Petitioner's first trial began in January of 1966, and his more recent trial in October of '67. It was the petitioner's second trial in October of '67 which poses the first issue raised here. Following his initial conviction, the Delaware Supreme Court reversed for several reasons, none of them relating to the petitioner's statement, and in so doing directed that although the new trial was to be de novo, the standards proscribed by Miranda were not to be applied. Johnson held that Miranda would apply only to trials begun after that decision, namely Miranda, was announced. It was not specifically concerned with and did not expressly hold whether a retrial was among the trials in which Miranda was to be applicable. For four major reasons, we submit that the admissibility of a criminal defendant's incriminating statement at a retrial should be measured by the same gauge as any other defendant going to trial at the same time, very briefly, those reasons are these. First, the purpose of the Miranda Rule is to enhance the reliability of the fact finding process at trial. Now, that purpose could not be fully implemented if it were applicable only to some trials. Now here, we think that the contrasting treatment in Stovall of the way Gilbert rules is enlightening. There of course, the critical time was fixed as the time of the confrontation. The time when the identification took place. Here, the time was fixed at trial. Similarly, in this Court's recent decision in Fuller versus Alaska announcing the applicability of the Lee versus Florida rule, once again, the time was fixed. Not the time that the officers obtained the evidence in violation of Section 605 of the Federal Communication Act, but at the time of trial and once again however, no distinction being made as to the types of trial. But certainly would seem that if the rule in Lee versus Florida, which -- in which -- as to which the Court said that it doesn't go to the enhancement of the fact finding process. The trial is going to be applicable at trials subsequent to the time that decision was announced. It would seem anomalous to not apply at least in the retrial context, a rule which does to the core of the fact finding process. Second, our second reason is this, in fixing the extent to which there maybe full effectuation of the individual's Fifth Amendment rights at trial, the results of his prior in-custody interrogation may and frequently are determinative. It is difficult if not impossible to distinguish between the exercise of those rights during an in-custody interrogation and during trial, to the extent they have been lost in the interrogation process they can not be fully exercised at trial. The choice of whether or not to testify may then not be as a practical matter, one which is open to the defendant. Third reason is this, there is a seeming impairment of judicial integrity in sanctioning the simultaneous trials of different persons in adjoining courts but by different standards and perhaps, it is reading too much into Johnson, but it appears to have as one of its purposes the implementation of the Miranda's protections as soon as possible, but at the same time minimizing any disruptive effects which would be caused by its application. That there would be some disruption is apparent, because Johnson would not exclude or would exclude from evidence that those confessions which were obtained either prior to the announcement of Miranda, or indeed after, ff they were in compliance with Miranda standards provided that no trial of any kind had been commenced by that date. And fourth, there is an obvious point and perhaps too obvious that where Johnson uses the words trials, that's exactly what was meant, and no exclusion of all trials, except a defendant's first appearance at the bar was intended. Most of the decision which are cited in all of the briefs, including that of the amicus Attorney General State of New York, on that or supporting the decision or in accord with the decision of the Delaware Supreme Court in this case, pick the critical word as cases. And what they have done with this word is sometimes very interesting. For example, in the case of Boone versus State, I take that in that correction, State versus Branch, a North Carolina decision and the Court there found that the word case was determinative and how that a case begins at the time of the in-custody interrogation. And I suggest that that gives substantial warping to the Johnson decision. I'd like to make one or two brief comments upon the brief of the amicus curiae. First he urged that -- the amicus urges that the New York courts have relied upon the non-applicability of Miranda in reversing subsequent cases. We would suggest that the cases were reversed because they had either been wrongly decided or for some other error committed during the course at trial. Secondly, it's argued that Miranda should not, and I'm quoting, “be applied to past convictions merely because a retrial is ordered.” I would suggest that if a retrial is ordered, there is no past conviction but only a future trial. Finally, the amicus contends that the primary aim of Miranda was to change the circumstances of interrogation. I would suggest that that simply is not what -- that is one of the purposes, but is not the primary purpose. We turn now to the search and seizure question. And there, I think some additional facts maybe of assistance. The petitioner and his lady friend, Leona Marshall, had lived together as man and wife for about three or four years prior to his arrest. They had lived in the house where the petitioner was apprehended for a period of anywhere from, according to here testimony, two of those years to perhaps nine months according to the landlord. Between 9 and 10 o'clock on the morning of March 17, some five officers of the Wilmington Police Department went to the petitioner's home to apprehend the petitioner and his companion of the prior evening. Sergeant Maloney knocked on the front door, Ms. Marshall still dressed in a house coat, answered the door. Sergeant Maloney asked for the petitioner. The people in the house were then collected in one of the rooms, which I think Sergeant Maloney described as a dining room, where Ms. Marshall observed the petitioner's companion being directed to lean against the wall and being patted down. She was told to get some clothes on and testified if she was advised that the people in the house were going downtown. They were taken in to police station. All of those apprehended, except for the petitioners and his companion, were seated on a bench immediately outside the detective division portion of the police station. The petitioner was taken inside and placed in a so called recording room, which is a separate room within the larger confine of the detective division. Sergeant Maloney thereafter sought Ms. Marshall's permission to search the house. The record is clear that at that time, Sergeant Maloney had Ms. Marshall in custody. He knew that the petitioner lived at the house to be search. He knew that the petitioner was one of the two prime suspects in the homicide investigation then being conducted. He knew that the petitioner was present in the recording room. He proposed to conduct the search to obtain evidence of the petitioner's guilt to the homicide, and he made no effort whatsoever to obtain the petitioner's consent to the search. For her part, Ms. Marshall had a limited comprehension of what the search was all about and what her rights were. Basically, she testified that she just didn't know what it was all about because the police didn't tell her. She didn't know that she was not required to permit a search. She thought the police could the property simply because they wanted to, and I think it's -- I should say to that she assumed that they could just get a search warrant by some process that she didn't understand, but that they could get one. But any event, as a result, she did permit the search for no reason really other than the police asked here to. The search therefore was without a warrant and was not conducted incident to a lawful arrest. The sole basis for its legitimacy was the acquiescence of Ms. Marshall, petitioner's co-occupant in the request of the police for permission to search and that --
Abe Fortas: She was the, at least the nominal lessee, as I remember.
Henry N. Herndon, Jr.: The testimony of the landlord says that as far as he was concerned, she was the only tenant of the property. The Delaware Supreme Court in its first opinion so held. The evidence also discloses, Mr. Justice Fortas that the rent money came from the petitioner, if that's significant.
Byron R. White: Was the search point raised in the second appeal?
Henry N. Herndon, Jr.: Yes, Your Honor, it was. It was raised in both appeals. The opinion --
Byron R. White: Now why does the opinion left to deal with, don't you think?
Henry N. Herndon, Jr.: Yes Your Honor, it does in the -- it points out that the petitioner raises for the record the same issues at pages 101 and 102 --
Byron R. White: For record purposes.
Henry N. Herndon, Jr.: -- record purposes. These -- both these points had been dealt with at the first trial and had been rejected in the first appeal by the Delaware Supreme Court. The acquiescence of Ms. Marshall, we suggest, does not measure up to the requirements of the Fourth Amendment for two basic reasons. First of all, her positive response to the request for permission of search was not made with any real comprehension of what her Fourth Amendment rights were. And second, irrespective of whether Ms. Marshall's permission to search effectively waived her own rights. We submit that she could not waive the petitioner's rights, and even if it is assumed that if that a co-occupant simply because he is a co-occupant, can waive another's Fourth Amendment protections. The search here was nevertheless unreasonable where it was the petitioner, who was the prime murder suspect, where it was him against whom evidence was being sought and where he was immediately available to give her with all that consent. Common to both reasons is a precept that a warrantless search is in violation of the constitution, unless it can be demonstrated as being within one of the well defined exceptions to the general requirement that a search must rest upon a search warrant. Necessity may justify a search in certain circumstances. But absent necessity, a warrantless search must be supported by valid consent, as to the first reasons, the insufficiency of Ms. Marshall's consent. Like the Fifth Amendment, the Fourth -- the aim of the Fourth is in part certainly to avoid any compulsion upon the individual to incriminate him self. Evidence of a suspected crime whether from the suspect's own mouth or whether from his possessions or his home have the same result. If a waiver of this right is to be relied upon, then there does not appear to be any justification for surrounding that right with a lesser degree of protection then is the case for the Fifth Amendment. And thus, if a waiver is to be relied upon, it must be established that Ms. Marshall fully comprehended what her rights were before her consent to the search can be characterized as effective to support the search. And the burden here of establishing that waiver is upon the State. In this case, we submit that the burden has not been sustained. As to the second reason, as far as petitioner is aware, this Court has never upheld the validity of a third-party consent to a search -- let me state that in other way. As far as the petitioner is aware, this Court has never specifically held that a third-party effectively waived the Fourth Amendment rights of a defendant. Once it is recognized that the Fourth Amendment protects people and not simply places or things, and that the rights of the individual are personal rights, then it is difficult to accept that those rights may be dismembered by one who has absolutely no interest in their protection. Anything else such as the possession and control rule relied upon the Delaware courts and many of the lower courts, necessarily -- lower federal courts -- necessarily involves an analysis of relative and competing property interests, and makes them determinative of who can consent to the search. The waiver therefore must be by the person whose rights are involved. Either he must waive it in person or through an agent. But in either case, the waiver or authority to waive must be explicit and this we suggest is exactly what Stoner teaches. I think we would all be shocked and reject out of hand the notion that a father could waive his son's right to a -- to counsel in a trial and submit him not a plea of guilty of the court for sentencing. And I don't think we would accept a wife's asserted waiver of her husband's Fifth Amendment rights. This situation, we submit is really no different. In a narrow sense, it is perhaps not essential for the disposition of this particular case that the third-party consent issue be met head on. This search was unreasonable by any standard despite Ms. Marshall's consent. Advert once more to the general rule that a search warrant is required, except where necessity changes that circumstance. Absent a warrant, the requirement of necessity in fact even though the decisions and petitioner fully appreciates this, the decisions use the word reasonable and unreasonable. If the requirement of necessity is not met, then the warrant is required. Here, there was no reason, no justification for not either seeing a warrant or seeking the petitioner's consent and the failure to have sought that consent in this particular instance where he was immediately available to give or withhold it, all that Sergeant Maloney had to do was open the door and ask him, is what makes this search unreasonable.
Abe Fortas: Well, assuming that Ms. Marshall's consent was valid and effective, if the police had entered the premises and had found things there connecting her with the crime, she had later been indicted, you wouldn't have any question about the use of that would you, against her?
Henry N. Herndon, Jr.: Against her. Against her, no I would not.
Abe Fortas: What precisely, what is the complaint here? Is it that the police were not in good faith seeking her consent to the search of the premises? As I understand it, what you're dealing with here was a living space. Was it a house or an apartment?
Henry N. Herndon, Jr.: It was an entire house, Your Honor.
Abe Fortas: It's an entire house and she was the tenant although petitioner paid the rent, but she was the tenant and the police wanted to search the entire house. They search the entire house and they came across the junk, did they?
Henry N. Herndon, Jr.: Yes, sir.
Abe Fortas: Was that in any thing identifiable or identified or identifiable as petitioner separate and private receptacle such as a locked suitcase?
Henry N. Herndon, Jr.: No, it was not Your Honor. We concede for purposes of this argument that --
Abe Fortas: Well, what you're really --
Henry N. Herndon, Jr.: -- both the junk and the jacket which were clothing were in commonly occupied areas.
Abe Fortas: Alright, what you're really saying, if I correctly understand it, is that apart from the question of the validity of her consent, assuming that her consent was valid that the police would then be -- were then warranted and searching the premises, but they were not warranted in using the fruits of that search against petitioner, is that it?
Henry N. Herndon, Jr.: That is correct Your Honor.
Abe Fortas: An alternative would be to argue that the obtaining of her consent was not valid because she was really the target of the search, you're not arguing that are you?
Henry N. Herndon, Jr.: Well, I am arguing that. Yes, I am Your Honor because under the circumstances --
Abe Fortas: Was there any authority for that?
Henry N. Herndon, Jr.: I'm arguing that that is what makes the search unreasonable if the standard applicable and I concede to not knowing what the standard is. If the standard is some general and amorphous thing which we're just going to label reasonable, I say that this search was unreasonable by virtue of the fact that in real terms, the purpose of this search was to get evidence against the petitioner. Not against --
Abe Fortas: Well of course --
Henry N. Herndon, Jr.: -- the consenter.
Abe Fortas: -- what you're advocating, if I understand you, is a very noble doctrine and that is that the consent has to be obtained not from the person having some sort of possessory or ownership rights, but from the person who is the target of the search. I -- it's very difficult for me to relate your argument to the conceptual standards in the field, except in those terms that you're asking us to abandon, the possessory or ownership standard, and to substitute for it a rule or to add to it maybe a rule that the police always have to obtain the consent of the person who is the true target of the search before they can make a warrant and the search.
Henry N. Herndon, Jr.: Mr. Justice Fortas, I wouldn't go that far and do not need to in this case. But I do say that where A is the target of the search, and A does have a right to be and to have his things where those things are and where he is in his house where he lives. Then in that context, I say that his consent is required.
Abe Fortas: Now, there's no -- nothing in our books to that effect, is there?
Henry N. Herndon, Jr.: There is none
Abe Fortas: This is what would be a new doctrine?
Henry N. Herndon, Jr.: That is correct.
Byron R. White: What -- you say that the police were rightfully in the house. If her consent was valid for herself, you indicate the police are rightfully in the house?
Henry N. Herndon, Jr.: I think my answer was to the question that if she was consented to a search, then a search to obtain evidence against was proper. But I'll go further to say that if they -- if she consented to their being in the house, then they're properly in the house. That's correct.
Byron R. White: Now let's assume that while they're properly in the house, they see some narcotics in the mantle piece, and they say “whose narcotics are those?” And she says “They're my husband's.” And they say “May we take them?” And she says “No, they're not mine. They're his, they're his effects.” They could they still take them, couldn't they?
Henry N. Herndon, Jr.: I say no.
Byron R. White: Well, you not only want new doctrine, you want some reversal to some old then?
Henry N. Herndon, Jr.: I think that's correct.
Byron R. White: Yes.
Henry N. Herndon, Jr.: No further question that concludes my argument.
Earl Warren: Mr. Conner.
Jay H. Conner: Mr. Chief Justice and may it please the Court. The first question which we are here to argue is whether Miranda is applicable to retrials. Now five circuits and nine States differ with Delaware. We've got five that agree with us, five States. But out of those 14 forums that differ with Delaware, only one decision, and that's the California decision of People versus Dorothy, has anymore than a token discussion of this question. The 13 other forums rely on the one-word trial in this Court's decision in Johnson versus New Jersey. Now, we submit that the answer to this question does not lie in one little word used in one case. Now, the Johnson decision is important, and it is important for two reasons. Number one, all of its language gives guidance as to the answer to this question. And number two, Johnson is important because the decision that this Court reaches in this case should be able to be reconciled with the Johnson decision. And now in addition to Johnson, I think we must apply logic, common sense and even look at some other cases which lead us to the answer.
Thurgood Marshall: Mr. Conner, suppose in this case happened in '64?
Jay H. Conner: Mr. Justice Marshall, the date of confession was March 17, '65, first trial January '66.
Thurgood Marshall: Well, suppose this man had been in the federal penitentiary and didn't get out until '67 and was tried in '67, would the rule apply?
Jay H. Conner: Would the Johnson rule apply? Yes, it would. The State would be out of luck.
Thurgood Marshall: Well, that's -- now suppose at the end of this trial, the judge had decided to give him a new trial, would the rule apply?
Jay H. Conner: Then well, under that hypothetical, when was the first trial?
Thurgood Marshall: The first trial was in '65, and the granted a new trial in '67.
Jay H. Conner: The rule would not apply sir.
Thurgood Marshall: What's the difference between those and this one?
Jay H. Conner: Well, there are several differences. I think this goes right to the heart of the whole question.
Thurgood Marshall: You know, usually when you distinguish a case, you sometimes just only thing distinguishes the name. Well in my hypothetical, I still have the same name, so you have to find something to distinguish it from.
Jay H. Conner: It's our -- it's our position that a retrial is not a new trial. It is merely a continuation or an extension of the first trial and that's why the trial really begun back in '65 and not in '67 for you hypothetical. I think another way to point this out would be to say if this Court started to write the decision in this case in March of 1969, and after working on it for in week, you tore it up, then you come back in April of '69 and start to write it again. I think you would have to say that you began the work in March of '69 and not in April of '69.
Thurgood Marshall: So, your point is, this is the same trial?
Jay H. Conner: This is the same trial and as part of the case.
Thurgood Marshall: It's a different judge, a different jury, different everything it was the same trial?
Jay H. Conner: It is an extension of the same trial, yes sir. The -- I might add that the only thing which is new about a new trial is possibly the jury and well, the jury is new, possibly the judge might be new as well. But it certainly is not a new trial as far as the parties go. The defense knows what the prosecution's evidence is going to be. They know the basis of the admissibility of that evidence. They know what witnesses are going to testify. They know about the credibility of those witnesses. Certainly, a lot easier to cross-examine the second time than the first time. They know how the judge is going to rule on evidentiary questions. So, a retrial is really not new trial, except for the fact that the jury treats it as a new trial. The jury hears it for the first time. Now, since all these other forums play such heavy reliance on Johnson, I'd like to just look a little bit at some of the other language in the Johnson decision. First, there's language in the Johnson decision that Escobido and Miranda should apply to cases commenced after those decisions were announced. Now both words are important here cases, commenced. Now, New Jersey Supreme Court in Bigliano in discussing this. They say a retrial after appellate reversal is not a new case, but simply a continuance of the same case looking toward a final judgment of either acquittal or conviction. I think this is what I just expressed in answer to Mr. Justice Marshall. When a case commences, it's my view that the case commences even before the previous trial. The Supreme Court in Maryland in Boone, they put the commencing point at the previous trial in the new North Carolina Supreme Court in Branch, they put it at the trial, or no, at the interrogation in the police station. I place the point of a case commencing at the first time the defendant is taken before a judicial office to set bail, whether that be United States commissioner or justice of the peace, or a magistrate. And the basis of that is because this Court, since its inception has always held that to have a case, there has to be a controversy. Now to have a controversy, there has to be two sides, and the first point at which both sides represented before some judicial authority would be when the committing taken before a magistrate to set bail or for arraignment. Now, after the commencing, we go through all the preliminary hearing, all part of the same case. We go through grand jury indictment, still part of the same case. Trial by petty jury, part of the same case.
Thurgood Marshall: Mr. Conner, I hate to stick to my point but it seems to me your court said on page 56 “According to the his opinion of the court, the Jenkins conviction of murder of in the first degree, it must be reversed and the case remanded for a new trial.” It's not retrial.
Jay H. Conner: Well, that's language used in that decision, yes sir Mr. Justice Marshall, but when you look at really what --
Thurgood Marshall: It's not binding on you? This is the Supreme Court of Delaware?
Jay H. Conner: Yes, sir. But it goes to what is the definition of a new trial.
Thurgood Marshall: But they did say new trial.
Jay H. Conner: They did say new trial. But I'm just pointing out, there is a big and a great difference between a trial tried for the second time and a trial tried for the first time. Now, there's some additional language in Johnson which is important and that language says “Future defendants will benefit fully from our standards governing in-custody interrogation, when you're talking about the Miranda and Escobido standards.” Now certainly, defendant Jenkins who was arrested back in March of 1965 was not a new or future defendant in October 1967 when he was tried for the second time. Now Johnson -- in Johnson this Court also points out that the police shouldn't be punished for not following standards which were not standard at the time they acted and this Court differentiates from the map in Wolf Doctrine where the police did have the Wolf standards, but didn't follow them. So, if we consider that on a retrial, the law enforcement and the prosecution can not use the confession. This would really be to punish the police for acting in accordance with the set standards at the time they took -- at the time they took the confession. Now, I mentioned at the beginning that this decision should be reconcilable with the Johnson decision. Now, if this Court determines, as my friend asked that Miranda is applicable to a retrial, then this decision can not be reconcilable with the Johnson decision, because it's not reconcilable with the language of case commenced. Now, if the Court accepts our position that it should not apply to a retrial, it is reconcilable with the language at case commenced. It can also be reconcilable with the language trials begun, by ruling that a retrial is merely an extension and not a new trial. It can differ with the Supreme Court Delaware, or it could say by the language in Johnson “We intended this to mean a trial for the first time.” So, it can be reconciled with Johnson. Now, this Court is long been concerned about the administration of justice and this is obvious not only from Johnson but many other decisions. Many cases are going to be affected if it's ruled that Miranda is applicable to a retrial. The amicus brief indicates that many New York cases will be affected. In Delaware, this is the only case that I know that will be affected. There may be one or two in the federal habeas corpus, but I'm not aware of it. But in this particular case, Jenkins if this confession is out, we can not prosecute. We don't have enough evidence and it's one -- now two years later, it's too late to go back and dig up or come up with some fresh evidence. Now, counsel is probably saying “Let's not excuse. The police should've done a thorough job the first time.” This is an argument, but realistically speaking the last 10 years of course there's been a great increase in crime. But there hasn't been a ratable increase in the number of man that man our police departments. Though the police when they're investigating a crime, they're forced to go out get enough evidence which will be legally admissible, in which will be sufficient if legally admissible to obtain a conviction. Then they have to get back at on the street and continue on other investigations. They don't have the manpower and they don't have the time to put together a perfect case. And it's too late now to go back and do it.
Earl Warren: Is that really true that all the police are required to do is to go out and get the bare amount that they think is sufficient to sustain a conviction? Aren't they obligated under their oath to go out and get all the evidence that is available and even if it should cut both ways?
Jay H. Conner: Absolutely. That is --
Earl Warren: Well, I thought that -- I didn't understand you to say that was --
Jay H. Conner: I may have misinterpreted my -- I may have not communicated in my remarks properly. Absolutely, this is the policeman's duty, but realistically speaking, they have to call off an investigation at some point and when they feel that they had spent sufficient and have sufficient evidence both ways. They have to call it off and go on to somebody else, Mr. Chief Justice. They can't make a career out of one case, practically, it's just not possible. Enough said I think about the Johnson case. I might say, I mentioned the California case of People versus Dorothy and in California they have a statute which reads something like this, “The granting of a new trial places the parties in the same position as if the trial -- as if no trial had been had.” This is a very similar to the discussion which I just had with Mr. Justice Marshall and of course the California courts are bound by this statute. And this is one explanation why they put a little more discussion in about the Johnson case. As I pointed out, I don't agree with the statute because the new trial doesn't really place the parties in the same position as if no trial had been had for the reasons that have been previously mentioned. But it is also interesting to note that the Dorothy case in California, the California Supreme Court ruled that the marijuana had been properly admitted into evidence and I feel that you can put the marijuana in the possession of somebody that the court may have felt that this was enough evidence for them to get a conviction the second time without the confession.
Potter Stewart: Was the Dorothy in the California Supreme Court decided before or after this Court's decision in Stolov?
Jay H. Conner: Mr. Justice Stewart, I'm not quite sure of the Dorothy date.
Potter Stewart: I haven't read all these cases in your, or really any of these cases in your footnotes 10, 11 and 12. But just a cursory glance at the dates of the cases would indicate to me, and perhaps I'm wrong, I've just -- that's all I've done is glance at the date, would indicate that perhaps more courts held that Miranda to be applicable to a new trial before this Court's decision in Stovol, and did so afterwards?
Jay H. Conner: Yes, sir. I think the dates do indicate that. People versus Dorothy was in '67. I think Stovol came down in June of '67.
Potter Stewart: Also in '67 my recollection is.
Jay H. Conner: Now, it's very possible that Dorothy was actually argued and considered prior to June and even though the written opinion did not come out for some time.
Potter Stewart: You don't remember whether the California Supreme Court discusses the Stovol case in its opinion I think it add the date in the Stovol decision, but that's not what --
Jay H. Conner: That is my recollection also, and my next point which was I going to discuss exactly was the Stovol case. And of course Stovol held that as far as the lineup rules are concerned, the way Gilbert rules that it's the date of confrontation, which is the critical date. But there are some other language in the Stovol decision which if found interesting and that language was, “We conclude that for these purposes, no distinction is justified between convictions now final and convictions at various.” And I emphasize various “stages of trial and direct review,” various stages of trial and direct review. Now likewise in the confession area, logic dictates that no distinction is justified between the defendant who confessed prior to June 13, 1966 was convicted, sentenced -- served his sentence and the defendant, who also confessed prior to June 13, 1966 was convicted, but gets a new trial for reasons not related to the confession. Secondly, logic dictates that the rules as far as rate of counsel should not differ, as far as the retrial is concerned for identification cases and for confession cases. And thirdly, and this may be reiterated and repetitious but it should be emphasized. The police and law enforcement should not be punished for something that wasn't the law at the time they acted. Now, this concludes my portion of the argument which I want to deal with, Miranda applying to retrials. I would just like to go briefly to what time is left into a discussion of the principles that are involved in the search question or the search aspect of this case. Before going in this, perhaps the factual setting should be made clear, Mr. Herndon alluded to the fact that they had lived together for some years as man and wife. Delaware does not recognize common law marriages. It is true these people had lived together. But the landlord said and then testified that he rented theses premises solely to Leona Marshall. As far as he was concerned, she was the tenant. He had never heard of Thornton Jenkins. It should also be pointed out that Thornton Jenkins was arrested back in March 17th, 1965, and when this case came to trial in January of '66, Leona Marshall was still residing as tenant at the same premises. So, there is no dispute as to who is the tenant and who has the property interest. Our Supreme Court used the term joint occupants. Now, Mr. Herndon asked this Court to rule that in no case can a defendant be bound when a third-party consents to the premises or to the premises that the third-party owns or occupies or has the possessory interest then to this search. Now if you carry this argument --
Earl Warren: Did he go that far?
Jay H. Conner: Yes, sir. That was my impression from listening to Mr. Herndon and reading the briefs. But if you carry this position to its logical end or logical extreme, it can't work, because I could commit a crime in a summer resort. I could go to a man whose house I think is vacant during the winter period. Stash some of the stolen goods there. He could -- a man comes down over the weekend consents to the police to search the house, they find the goods. Clearly, clearly no violation here, proper search. Backtracking from the logic, backtracking from the extreme a little bit, supposed Thornton Jenkins does not live day by day with Leona Marshall but only visits her? He goes to visit her with stolen goods. Leaves some of the stolen goods there, the search is consented to. Clearly again, he has no right to claim that this search wasn't proper.
Byron R. White: Well, let's just assume that under the last example that -- that a thief lives stolen goods in the house of his girlfriend, but he just happens to leave it on the suitcase with his name on it and that sits. And she consents the police come in and then they say “May we take that suitcase?” She says “Sure.” Or “May we look in it?” She says “Surely, it's mine.” Now what kind of a result would there be then? Same result, are you saying that you're urging?
Jay H. Conner: Well, now I would differ there. If the goods were in plain view in her house as they were in this case, then they have the right to seize it. They are covered --
Byron R. White: Why? They're his.
Jay H. Conner: There still no -- just property is being invaded. He has had his --
Byron R. White: Fourth Amendment protects effects as well as houses to his effects. They maybe rightfully in the house, they maybe rightfully in the house because of her consent, but how can they seize his effects without his consent. You've got a property interest in the effects, they're not hers.
Jay H. Conner: Well, this Court -- this Court has long held that they could be seized.
Byron R. White: Well, on what basis? Do you think Harris -- Harris case that you can seize things in plain sight in the house?
Jay H. Conner: Yes, sir. You can seize in the plain sight of the --
Byron R. White: Now, but why could they do that? Why can they do that without a warrant? It isn't because of consent if somebody else surely.
Jay H. Conner: They, if the search, if the search is proper and the search is reasonable then anything in there can be seized, so it's the reason -- if we go back --
Byron R. White: Yes, but why is that? Why is that? Why may you seize effects without a warrant when you couldn't search the house without a warrant or without consent?
Jay H. Conner: Well, because the Court has ruled that the search is the critical thing. The reasonableness of the search is what the critical area.
Byron R. White: I thought that you said that --
Jay H. Conner: Not the reasonableness of the seizure.
Byron R. White: I know, you've said that before but I'd like to know why it's reasonable to seize somebody's property that's protected by the Fourth Amendment without a warrant?
Jay H. Conner: Warrants don't go to seizure. The warrants only give the right to search.
Byron R. White: Now wait a minute, the warrants always give the right seize. What's the purpose of the search usually?
Jay H. Conner: To look for contraband of the fruits of the crime.
Byron R. White: Simply look for physical evidences. I mean for the --
Jay H. Conner: They look for tangible, physical evidence.
Byron R. White: Look for -- most of the time anyway. Sometimes, just really to search the house but, do you suppose if the -- you think the Fourth Amendment provision about effects then is just irrelevant or a redundancy?
Jay H. Conner: No, I don't go that far.
Byron R. White: Well, you had told me then why a policeman searching a house ought to be able seize somebody else's effects? Why can't he seize -- if he has consent to come in a house and he sees a suitcase of somebody else, the example used a while ago. The suitcase has somebody else's name on it. He says “Whose is this?” And the householder says “Well that belongs to my boyfriend.” Now, why can't the police seize that suitcase?
Jay H. Conner: Well, if the person that owns the effects wanted to protect his privacy interest in these effects, and goes to the trouble to, let's say enclose them and prevent them and keep them out of sight of the general public, then that privacy interest should be respected. But when he comes in somebody's house and lays his goods down in the open, and he doesn't have much interest in the privacy of this property, and I think that's the interim.
Byron R. White: So you couldn't seize the suitcase, but you could seize the clothes in the suitcase if the suitcase was lying open?
Jay H. Conner: Yes, sir.
Earl Warren: If he had hid these things that they took so that they were not immediately visible, would you say they could've gone in and taken them out then? Or do you rest upon the fact that these things are right out on the open in a home -- in the home there for anyone to see?
Jay H. Conner: Mr. Chief Justice, in this case I'm going to rest on the fact that these goods were all in the open. I don't think we have to get --
Earl Warren: We have to go a little farther. We have to go a little farther than that, don't -- we wouldn't determine what affect this will have on other cases and that you say they were right out there in the open. But I suppose if the man takes things to his home then puts them in a room that doesn't mean that even though they might be observable in the room, that doesn't mean that he has no more privacy in them so far as the public is concerned, does it?
Jay H. Conner: Well, I think if he takes Mr. Chief Justice, if he takes them to his own home --
Earl Warren: Isn't this his home?
Jay H. Conner: -- then he is seeking more privacy.
Earl Warren: Isn't this his home?
Jay H. Conner: Well, if -- when a man chooses to live in an extra marital relationship with another woman, he is giving away some of the privacy that he could've had by living in marriage relationship or living by himself. So, I think where he lives also goes to the question of privacy.
Earl Warren: But it would've been alright if he'd put them on a suitcase?
Jay H. Conner: It would be -- we would be on -- our point would not be as strong as he lays these in these in the suitcase, yes sir. Now, I think we just about covered all the points, but the -- there are -- there has been no Supreme Court rulings on this. The circuit courts in one or two State courts have held that a mistress or a joint tenant do have the authority in their own right to consent to a search of their premises and once they have this authority, the search is reasonable. The evidence seized can be used against anyone. Again, we respectfully ask this Court to adhere this theory. We ask this Court to determine that Miranda is not applicable to a retrial to adhere under this factual situation that the search was reasonable and the seizure prompt. Thank you.
Earl Warren: Mr. Herndon.
Henry N. Herndon, Jr.: Mr. Chief Justice, if I may respond very briefly. As to the Johnson argument, I think that the position of the State of Delaware points up the problem in using the word case as the word of art, rather than the word trial. The decisions in many States vary as to when a case or indeed a trial begins. Some cases say that it begins with the interrogation of the defendant, others at the time of a preliminary hearing, others at the time of indictment, others at the time of arraignment and pleas, still others when the jury is called into the box for examination and still others when the jury is sworn, so that that problem has to be faced as well. It seems to us of the use of the word trial is a clearly understood and well recognized word which provides fine degree of definiteness and one that should be easily followed despite the problems some courts have had with it. It is suggested that this would punish the police for what they have done properly at the time they obtained the statement. This is necessarily the consequence of Johnson in any case where in no trial of any type had been started, unless the critical word is case and unless the case means the time -- the time the statement was taken. It was further pointed that this punishes the police and that there was no anticipation of the problem, and it was too late to go out and get any other evidence unless simply like to advert to the petitioner's motion to suppress in this case, in December of '65 which included the ground and certainly warned the police at that time some few months after the event that the defendant, this is the quote. “The defendant was not adequately afforded the right to console with legal counsel, and legal counsel was not assigned to represent the defendant prior to the time as purported a statement was obtained, thereby depriving the defendant of his right to counsel.” So, there was a warning at that time that if there was a problem and if there was further evidence, that was the time we've then. As to the search issue, I think the -- if I was understood to make the representation or argument to the Court that in no case can a third-party consent to a search vis-à-vis the defendant, then I didn't state it well at all. What I did say was that where the purpose of the search is to obtain evidence against a defendant, then the consent of someone who simply has a proprietary interest in the property to be searched is not sufficient, and that is my point. I have some concern about the -- there an aversion to some of this in-plain view cases. The obvious distinction there is we don't have a search, and thereby the problem doesn't arise.
Potter Stewart: Well, in your -- then you would contend that to take your adversary's hypothetical case that a robber who stashed away stolen goods in an empty house in a summer resort and left, and that the owner of that house could not consent to the search of the house because the object would be to get evidence against the robber. So, you would say that he could not give consent to the search of his -- that the anything found is resulted to his consent to the search for his own house could not be used against the robber, as I understand it.
Henry N. Herndon, Jr.: I have trouble with that Your Honor, and I had trouble with it because wonder whether or not the robber at that juncture had not in fact abandoned that by putting it in some -- putting it -- just dumping that property in somebody's house.
Potter Stewart: Well, what I understood you to say just now was that somebody with a propriety interest in a house could not give consent to a search if the purpose, and object, and target of the search was to get evidence somebody else?
Henry N. Herndon, Jr.: Then, I would --
Potter Stewart: Is that what you said?
Henry N. Herndon, Jr.: That's what I have said.
Potter Stewart: Well, that would cover the summer house case, wouldn't it?
Earl Warren: Mr. Herndon, the Court understands that you were appointed by the court below to represent this man as an indigent defendant and you carried the case on through this Court. We consider that to be a real public service, and we appreciate your having done that. As we appreciate the service of all lawyers in that respect. And Mr. Conner, of course we appreciate the diligent matter in which you have represented the people of your State.
Henry N. Herndon, Jr.: Thank you, Mr. Chief Justice.