William H. Rehnquist: We'll hear argument first this morning in No. 91-687, Montana v. Donald Glenn Imlay. Mr., is it Racicot? Racicot.
Marc Racicot: Mr. Chief Justice, and may it please the Court: The 56-year old defendant in this case was convicted of the sexual assault of a 7-year old girl in a grocery store. At trial he testified and denied ever sexually assaulting the victim. He was sentenced to 5 years in Montana State Prison, which was suspended on several conditions, one of which was that he would enroll and complete a sex offender treatment program. The defendant did in fact enroll in such a program--
Speaker: When he did so and when he was so advised was he advised that the completion of the program would require an admission of guilt?
Marc Racicot: --No, Your Honor, he was not. He did enroll in such a program but did not complete it. He was terminated from the program because he would not admit his guilt to the offense charged. As a result the district court revoked probation and remanded the defendant to the Montana State Prison where inpatient sex offender treatment was available. Subsequently the Montara Supreme Court vacated that sentence and remanded back to the district court, where the defendant was sentenced to 5 years at Montana State Prison with no condition for treatment. And that is where the defendant presently resides. The issue is whether revocation of probation, or failure to complete a sex offender treatment program because the defendant would not accept responsibility for the offense of which he was convicted, violates the defendant's privilege against self-incrimination.
John Paul Stevens: May I ask a preliminary question before you get into your argument? He originally had a 5-year sentence that was suspended, and then parole was revoked, and then he received another 5-year sentence?
Marc Racicot: Justice Stevens, he was then, had his suspension, his probation revoked and was committed to the Montana State Prison for 5 years.
John Paul Stevens: So if you win this case he will serve out a 5-year sentence, and if you lose this case he will also serve out a 5-year sentence?
Marc Racicot: No, sir, not precisely. If we win this case then the defendant inside, then the sentence of the Montana Supreme Court ordering, ordered from the district court will be revoked or reversed and then the defendant will be subject to the sentence previously imposed which was that he could not be paroled until such time as he had completed sex offender treatment.
John Paul Stevens: But it seems to me in either even he serves 5 years.
Marc Racicot: Well, he does not necessarily. Under the one circumstance, with the sentence reimposed by the district court after the initial revocation, he would be, with the recommendation of the court, subjected to sex offender treatment. Upon successful completion would then be eligible for parole. That was the recommendation of the district court.
John Paul Stevens: I'm still a little puzzled. Which way will he be eligible for parole? If you win or if you lose?
Marc Racicot: If we win.
John Paul Stevens: So you're really trying to advance his interests?
Marc Racicot: Yes, sir, we are.
John Paul Stevens: He is better off if you win than if you lose.
Marc Racicot: In our judgment that is certainly the case.
Antonin Scalia: Excuse me, he'll be eligible for parole if he successfully completes sex offender treatment if you win, you say.
Marc Racicot: Yes.
Antonin Scalia: But he can't successfully complete the sex offender treatment, we are told, unless he acknowledges his guilt.
Marc Racicot: That is true as well.
Antonin Scalia: So it's a rather hollow victory, isn't it? He will be paroled if he successfully completes sex offender treatment, which you acknowledge he cannot possibly do.
Marc Racicot: Well, the dynamics, Justice Scalia, are in our experience that in fact inpatient sex offender treatment, when it is available, through the course of that there is a very high likelihood that he will successfully complete. Inpatient status and being subjected to the treatment over the course of that time in our experience has indicated successful results.
Antonin Scalia: But I thought the whole premise of this case is that he cannot fulfill the conditions imposed upon his obtaining parole, he cannot fulfill those conditions without confessing his guilt, without accepting his guilt. Isn't that the whole premise of this litigation?
Marc Racicot: It is.
Antonin Scalia: But you, now you tell us that that premise is false, that he can indeed complete the treatment without confessing his guilt. Well, which is it?
Marc Racicot: He cannot successfully complete the treatment without confessing his guilt. He refuses to do that at the present time.
Antonin Scalia: Well, then the answer to Justice Stevens' question is it really doesn't matter. He's in for 5 years, whether you win or lose, because he cannot successfully complete his treatment. Well, he might change his mind. He might change his mind. If you win the case he might decide that I would rather get out in less than 5 years and admit my guilt.
Marc Racicot: That is precisely--
Byron R. White: But on the other hand, on the other hand if you lose this case I don't know whether you will just, if it's unconstitutional for you to make him admit, you may go offer him the treatment without his admitting it.
Marc Racicot: --There certainly would be an educational, there are two parts to the course that is offered.
Byron R. White: I don't know, I don't... if you wouldn't do that your only option then is to discontinue all of this kind of treatment, program, and I don't know whether the state will do that just because he won't admit guilt.
Marc Racicot: We would, the course will still be available. There are two parts. One requires an admission, one does not. One is an educational portion, and when it's provided in an inpatient setting it has been our experience with even those who do not choose to admit at the beginning, overwhelmingly you have a chance of success throughout the course of that process.
Byron R. White: Well, but... the other part of it though wouldn't let him out before 5 years?
Marc Racicot: If, Justice White, the--
Byron R. White: He would have to come around and admit guilt under the program?
Marc Racicot: --Yes, that's correct.
Antonin Scalia: So you are not arguing that the state... I thought you were arguing here that the state has no right to make him admit guilt as a condition of his probation. Now you tell us you're not arguing that. All you're saying is that the state cannot deprive him of the opportunity to admit guilt too soon, that it has to leave him in the program and wait the full 5 years and see if he's willing to admit the guilt sometime during the 5 years. But you acknowledge that the state can require him to admit guilt as a condition of his probation?
Marc Racicot: Yes, that is our position.
Antonin Scalia: So we're just arguing over whether it must require him to admit guilt immediately or whether, or may require him to admit it immediately or whether it must wait 5 years for him to admit guilt. Right?
Marc Racicot: In essence, yes.
Antonin Scalia: Gee, it's a much less significant case than I thought.
Marc Racicot: One thing to keep in mind, I'm hopeful that the Court will throughout the course of consideration, is that the admission of guilt that was sought was solely for treatment purposes and rehabilitation purposes, and the record indicates that. It is unequivocally clear. There was no intent at any point in time to elicit incriminating statements to be used in a future prosecution.
Anthony M. Kennedy: Well, there was... the briefs were not clear as to whether or not the statements are privileged. I have taken the case as if there is no privilege for the, against the disclosure of this information by the therapist. Is that correct?
Marc Racicot: Yes, Justice Kennedy, that's our position. This Court has made it clear on a number of occasions that prosecution--
Anthony M. Kennedy: Well, but then we simply rely on the proffers of good faith by the state that this information will not be divulged?
Marc Racicot: --I believe there are other, there are other safeguards that are, already have been announced by this Court as well as by the Montana Supreme Court. As well, in our judgment there is not a reasonable likelihood of future criminal prosecution in this kind of a case as a result of those proscriptions as well as a result of our intent to provide treatment.
Anthony M. Kennedy: Suppose it was the policy of the therapist routinely to report all admissions of crimes by patients under their treatment to the prosecutor's office. Would the result of the case be different?
Marc Racicot: No, sir, it would not. Because even with that report there is still by Montana Supreme Court rule an inability to use those admissions in a future prosecution. As well I believe this Court has held the same in--
Anthony M. Kennedy: Is that your case of State v. Thiel?
Marc Racicot: --Thiel. Yes, sir.
Anthony M. Kennedy: I did not read the case that way. Do you have any other Montana authority for that proposition?
Marc Racicot: Not Montana authority, but this Court in Murphy in our judgment certainly holds that any future prosecution based upon uncharged acts would be prohibited in this kind of a circumstance.
Anthony M. Kennedy: So your submission to us is that these statements are in effect compelled by the state at least for purposes of future prosecutions, and so he has an immunity from the use of these statements?
Marc Racicot: No, we would not say that that was our intent. There certainly could be, even if there was, even if it was stipulated that there is compulsion by rule of this Court, and the rule of the land, the law of the land is that they could not be used in a future prosecution.
Sandra Day O'Connor: Well, why, why didn't the state just grant him immunity then for prosecution for perjury or whatever it is he's worried about?
Marc Racicot: Well, that's certainly something that could have been done.
Sandra Day O'Connor: And why didn't the state do it?
Marc Racicot: Because the issue was not raised in that context. And frankly with the prohibition against utilizing it in a future prosecution my expectation is that it was not deemed necessary at that point in time, nor requested.
Anthony M. Kennedy: Do you concede that he has immunity?
Marc Racicot: Yes.
David H. Souter: Including immunity on a perjury prosecution?
Marc Racicot: Yes. This Court has made it clear--
Byron R. White: Would he be subject to perjury for lying to a therapist?
Marc Racicot: --No, because the statement is not made under oath in the State of Montana.
Byron R. White: Right. Thank you.
Marc Racicot: I might point out that he would be subject to a prosecution for perjury regardless of whether or not this kind of a statement was requested or demanded. He could still have been subjected to a perjury prosecution based upon the evidence that was available absent any admission.
David H. Souter: Right. I mean, my question assumed that he would be immune from prosecution using evidence obtained through the therapist.
Marc Racicot: Yes, that is our position.
David H. Souter: So your answer is that he would be immune under those circumstances?
Marc Racicot: Yes.
Antonin Scalia: It's sort of a use immunity you're talking about. I mean, you could still prosecute him for perjury but you couldn't use the evidence as evidence that he confessed his guilt to the therapist.
Marc Racicot: That is our understanding, Your Honor.
William H. Rehnquist: Well, the question I just asked, I guess, was whether you could prosecute the defendant for perjury. I guess it's agreed, is it not, that statements made to a therapist are not under oath and so there could be no perjury prosecution there?
Marc Racicot: That's correct, in the State of Montana.
William H. Rehnquist: So where would the possible perjury prosecution come from?
Marc Racicot: There are... you could go back and because of his denial at trial and his testimony at trial charge perjury and reinstitute a prosecution based on the evidence.
William H. Rehnquist: Oh, I see. On the basis of that testimony in the later statement.
Marc Racicot: Yes. The Court has made it clear that the Constitution does not forbid every Government imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights instance in the area of disclosure of alibi witnesses the use of pre-arrest assertion of the privilege to impeach a trial. The availability of a constitutional protection does not mean automatically that a defendant cannot in some instances be required to make a choice when to rely upon it, for instance in plea bargaining situations. In that situation a defendant is presented with a choice of giving up not only his right against self-incrimination but also his or her right to a trial including the right to confront witnesses, in exchange for a more lenient sentence. There is much more of an onerous burden on the exercise of constitutional rights in that kind of a situation than there is here. The defendant in that situation is told in no uncertain terms before there is even a finding of guilt that he or she will suffer much harsher consequences in the event that he or she chooses to exercise the constitutional rights that are clearly guaranteed by the Fifth and Sixth Amendments. The defendant here was not subjected to proscribed compulsion in an effort to force him to waive his Fifth Amendment rights. He was offered an opportunity to obtain leniency, namely continued probation. It was his choice. Imlay's failure to accept responsibility did lead to the revocation of his probation, but his prison sentence was imposed in the first place because he sexually molested a 7-year old girl, and not because he refused to admit his guilt. He wasn't ordered to confess, or required to make incriminating statements under oath, or held in contempt, or sentenced to an additional prison term because of his silence. He simply made a decision not to comply with the terms of his probation, and as a result he was denied that status, namely probation.
John Paul Stevens: May I interrupt you once more to be sure I've got the sequence right? You're talking about what he wasn't compelled to do. There are three different orders entered by the district court. Am I right in this regard? First, a 5-year sentence but suspended on this condition. Second, the district judge revoked that and said you go away for 5 years but you can then get treatment in prison. That was the second order. Then the supreme court reversed that order and sent it back for further proceedings. What was the third order that was entered? Was it the--
Marc Racicot: The third order by the district court--
John Paul Stevens: --Yes.
Marc Racicot: --Sentenced to 5 years without a condition that he go through sex offender treatment before being eligible for parole.
John Paul Stevens: So under the present order even if he takes the sex offender treatment he still can't get out in less than 5 years? Is that the answer?
Marc Racicot: Absent the parole board's involvement, yes, Justice Stevens, that would be the case. But they do have a requirement that prior to the time you're eligible for parole that you do go through the sex offender treatment.
John Paul Stevens: It seems to me then that under the order of the district court that was subsequently reversed by the supreme court and under the order entered on remand precisely the same condition applies. In other words he has a chance to get the inpatient treatment and he might get out if he does, and if he won't admit he'll spend the 5 years in jail. And that's true either under the order that the Montana Supreme Court reversed or under the order that was entered after the reversal. Am I right on that?
Marc Racicot: I think that's the practical effect, yes.
John Paul Stevens: So I really don't see how it makes a particle of difference who wins or loses this case. I don't either.
Marc Racicot: It makes a huge difference in terms of not only this case but other cases--
John Paul Stevens: Oh, I understand the advisory opinion would be very important to you. That's true. But in terms of the litigants in the particular case or controversy before us I don't see how Montana gains or loses anything with respect to its relationship with this defendant.
Marc Racicot: --Well, if the question, Justice Stevens, is whether or not the case is moot as a result of what has occurred here--
John Paul Stevens: No, I don't think it's a question of mootness. It's a question of whether there's an actual case or controversy that makes any difference.
Marc Racicot: --I believe that the decisions of this Court indicate that there are in fact, that there is a case or controversy because the state is not able to impose the collateral consequences of the defendant's conviction, namely that he be compelled to go through sex offender treatment.
John Paul Stevens: Well, but he is now compelled to spend 5 years in jail if he doesn't do it. That's the only way you can compel him. It's the same choice he has. He either admits guilt and goes through it and gets some benefit from it, or he doesn't.
Marc Racicot: I also believe--
John Paul Stevens: I don't think it matters whether he admits guilt or not. It still will be... the two orders come out exactly the same way.
Marc Racicot: --But I also believe that this Court has indicated that the resentencing in a case like this is merely the obedience of a court's order, and that that does not by itself end up alleviating the possibility that the case is in fact a case or controversy.
John Paul Stevens: But then that raises the question whether the order under review was really final and whether it had jurisdiction, I suppose, at the time, granting review at the time we did. Well, I have these concerns about whether we really have a live case. I thought I--
Marc Racicot: I understand as well. There was never any intent in this case to compel Imlay to be a witness against himself in a criminal case. As this Court noted in Allen v. Illinois, the Fifth Amendment privilege is not available because the revocation proceeding was essentially civil in nature, the aim being to provide treatment instead of punishment. And as the Illinois Supreme Court was noted to have done in Allen, it is our belief that the Montana Supreme Court has held that admissions made during sex offender treatment cannot be used against a defendant in a subsequent prosecution. And this Court in Allen noted as well its decision in Minnesota v. Murphy and held that a person may not claim the privilege merely because his answer might result in revocation of his probationary status. And that's all that occurred in this case, or could have happened in light of Thiel and in light of Murphy.
Anthony M. Kennedy: --I just want to reiterate. Thiel was a case in which the court said he has been sentenced under a plea bargain for the acts in question, and therefore double jeopardy bars his reprosecution for those crimes. It has nothing to do with the self-incrimination clause in my view.
Marc Racicot: I understand your point, Justice Kennedy, and I would state that you are entirely correct that it is not precisely framed in those terms. The court did say Thiel has had few options other than to sacrifice his right to remain silent and to reveal his entire past. I recognize that it was based on a sense of fundamental fairness. But as well, Minnesota v. Murphy is much more explicit and I think provides the same result and is applicable to the courts of Montana and the State of Montana in this instance. The defendant was not--
Anthony M. Kennedy: I still must confess puzzlement. Your brief says that these are not statements that are covered by the Fifth Amendment because there's no possibility of incrimination. And then you have told us the reason there's no possibility of incrimination is because they're immunized. It seems to me you have to accept one theory of the case or the other. Either the Fifth Amendment is applicable or it is not.
Marc Racicot: --Our position, Justice Kennedy, is that they are not incriminating, but even, even if they could perceive to be statements of that nature, that nonetheless Murphy would proscribe their use in a future prosecution. So that the remedy ultimately, even if they were incriminating statements, would be available and would eliminate any risk of violating the person's right against his self-incrimination. The defendant was not compelled in this case, as I mentioned, to be a witness against himself. He was not required to answer questions in any proceeding where the answers might incriminate him in a future criminal proceeding. In the first place he testified at trial and was convicted, and any right against self-incrimination as it applied to the charge defense was extinguished as a result of that testimony. In reference to uncharged acts, which would include perjury, by virtue of this Court's holding in Murphy those statements could not be used against Imlay in a future criminal proceeding. Finally, there was no realistic threat of incrimination in a future criminal case. The state intended from the beginning to provide treatment and not punishment, and it's obvious that there was no realistic threat of future prosecution. As a result the defendant was not being compelled in a criminal case to be a witness against himself, and as a result of that the Fifth Amendment has no application. The revocation of probation in this instance as well, and as again Murphy points out, is not a penalty that triggers Fifth Amendment protections because the sought after admission was relevant to his probationary status and posed no realistic threat of incrimination in a separate criminal proceeding. The sentence of imprisonment was already imposed. The outer boundary of punishment was established, and then leniency was offered upon the condition that Imlay would complete sex offender treatment. The burden was therefore upon him to demonstrate his continued entitlement to that probation. It was his choice. But making that choice did not trigger the protections of the Fifth Amendment because his decision to refuse to accept responsibility did not enhance or augment his sentence. The defendant's sentence didn't change, only the conditions of the sentence changed. There was no increase in the severity of that sentence. Only the added benefit of probation was changed because of the state's obligation to provide safety and security as well as rehabilitation and treatment. The state has to have, as this Court noted in Murphy, that kind of authority to ask questions relevant to its responsibilities and to take actions against a defendant whose refusal to answer impedes the discharge of those responsibilities. Extending leniency to one who is willing to cooperate is what was attempted here. It's not a case where the sentence of a defendant who has committed no additional offense was augmented because of his or her reliance upon the protections of the Fifth Amendment. Imlay testified, as I mentioned, at trial, and responded during sex offender treatment in the same way. In both instances he denied the crime, but he did so voluntarily. In other words he did not remain silent and he did not claim his Fifth Amendment privilege. Because the denial was voluntary and not compelled in both instances, within the meaning of the Fifth Amendment the district court was free to rely on the defendant's denial in revoking probation. The revocation occurred on the basis of voluntary statements by Imlay in which he denied the sexual assault. The protections of the Fifth Amendment in this situation are not self-executing. If Imlay desired the protection of the privilege he had to claim it. He didn't, and as a result was not compelled to answer within the meaning of that amendment.
Harry A. Blackmun: Do you think the Fifth Amendment issue is before us at all?
Marc Racicot: It depends upon what theory--
Harry A. Blackmun: Well, it wasn't argued or raised in the courts below, was it?
Marc Racicot: --It was not.
Harry A. Blackmun: Therefore I ask my question.
Marc Racicot: I do not, other than that the Supreme Court of the State of Montana has held that in fact sua sponte raising the issue is dispositive of the case and as a consequence--
Byron R. White: They decided it as a Fifth Amendment issue, didn't they?
Marc Racicot: --That's precisely correct.
Byron R. White: So whether it was raised before, they nevertheless decided it.
Marc Racicot: That is correct.
Antonin Scalia: General, do we have to agree with you on Murphy? I mean, I'm not sure that... Murphy says that you cannot require someone to admit to something that he can be prosecuted for as a condition of retaining his Government job, but people have an entitlement to a Government job. They don't have an entitlement to parole unless they have been rehabilitated. And it seems to me if the state is saying look, if you rehabilitate yourself we'll let you out earlier. Now, that rehabilitation may necessitate your admitting the prior crime. You can't be successfully treated unless you admit it, but that's your choice. If you want to rehabilitate yourself you'll get out early, if you don't want to because of the risk of incrimination, well, that's fine too. I'm not... why does Murphy apply to that situation so clearly in your view?
Marc Racicot: Justice Scalia, I may have been mistaken in informing the Court just by referring to the Murphy case. I am referring to Minnesota v. Murphy wherein the probationer in that instance was--
Antonin Scalia: Oh, I'm sorry. I thought you were talking about the Government... okay. Okay. May I ask one other question that's prompted by Justice Blackmun's question? He made a First Amendment argument in the Montana Supreme Court, is that right?
Marc Racicot: --Yes, Justice Scalia.
John Paul Stevens: And that, that has never been ruled on, has it? So if we agreed with you I suppose they could then consider that question?
John Paul Stevens: Yes.
John Paul Stevens: Yes.
Marc Racicot: This decision, if left standing, will substantially impact sentencing options and adversely affect effects to carry out enlightened and effective treatment efforts that are the product of years of development.
David H. Souter: Well, why is that so? I mean, couldn't the problem simply be short circuited either by engaging in an initial colloquy informing him that if he wants to avail himself of the more lenient treatment option he has to recognize that he cannot be treated for something that he does not admit that he did, so that his choice to put himself in the position that he is in right now would be a voluntary choice, and that presumably would affect the result. I mean, isn't that the... if you lose this case isn't that the only modification in procedure that you would have to take in order to preserve the possibility of treatment programs?
Marc Racicot: Justice Souter, there are other ways to proceed, you are entirely correct. We could proceed in the fashion that the Federal Government does with the sentencing guidelines. The only difference is that there are substantial economies and there are also substantial retrievals of people involved in this system because as they go through the treatment process we are able to then I think secure their involvement in the program and their successful completion. You have to make a--
Speaker: But even if you lose this case you will still have the treatment option as a voluntary option which would hasten the parole date, so that you're still going to have an inducement to your prisoners to engage in it if they can see their way clear to admitting. Isn't that true?
Marc Racicot: --But it would be, Justice Souter, as the people were incarcerated and not in a probationary kind of status.
Speaker: Yes.
Marc Racicot: And that allows us tremendous economies and efficiencies. And in terms of saving, costs associated with imprisoning people as well as providing incredible flexibility to deal with people in individual and very unique circumstances. This case if it's left to stand in Montana will hurt everyone, not the least of which will be criminal defendants who because of these inquiries not being made will be warehoused instead of treated. And I believe that will be precisely the case if this case is not overturned. Thank you.
Speaker: Thank you, General Racicot. Mr. Miller, we'll hear from you.
Billy B. Miller: Mr. Chief Justice, and may it please the Court: We come before this Court today seeking affirmation of the Montana State Supreme Court's decision in this case. The justification of the Montana State Supreme Court's decision is based on the proposition that Mr. Imlay's Fifth Amendment right against self-incrimination was violated when the trial court revoked his probationary sentence because of his refusal to admit guilt in order to participate in the sex offender therapy program.
Speaker: Mr. Miller, will your client be better off if this Court affirms the judgment of the Supreme Court of Montana than he will be if it should reverse it, or does it really make no difference?
Billy B. Miller: Well, Your Honor, at this point if it's affirmed he will not be required to participate in the program, but he has been imprisoned for such an extended period of time that actually he would serve his time.
Speaker: So does it, is it really of no moment to your client whether the decision here is affirmed or reversed?
Billy B. Miller: Well, my client is obviously concerned about the decision, but it will not affect the time that he will spend in prison.
Speaker: Will it affect him in any other way?
Billy B. Miller: It will not affect him in another way, Your Honor.
Speaker: What if you lose this case? Then he, he will have the choice, I suppose, of then admitting his guilt or sticking to his guns.
Billy B. Miller: Well, if my client, if this case, the Court finds that this case is not, should not be upheld, then basically my client would be in the position whereby, as I stated, he would have spent his time in prison and at this point it will not--
Speaker: Unless he decides that he's going to admit his guilt.
Billy B. Miller: --Well, he would be able to be released from prison in a very short period of time regardless.
Speaker: Because?
Billy B. Miller: Well, because in the state prison they have two phases of the sexual offender program. They have phase 1, where an individual can participate and does not have to admit his guilt. Once he has completed that phase then there is the second phase whereby the individual will have to admit guilt prior to being admitted into that phase. My client has received notification from the prison that once he finishes the first phase they will parole him. So at this point he has participated in the first phase of the program and hopefully he will be released in the near future.
Speaker: Under the present, not because he has served the full term but because he is eligible for parole?
Billy B. Miller: Because he would be eligible for parole, yes.
Speaker: And if we reverse the judgment of the Supreme Court of Montana here would that be changed in any way?
Billy B. Miller: I can't see where that will affect it at all at this point because of the fact that he will have finished the first phase of the program, and that is basically what he has been promised as a result of finishing the first phase, his being placed on parole.
Speaker: We don't, that isn't part of the record right now, is it?
Billy B. Miller: No, it's not, Your Honor. That's just information regarding the program.
Speaker: But you are telling us that it really doesn't matter what we do here. He is going to get out after he finishes phase 1 of the program.
Billy B. Miller: Well, that is what the prison has informed my client. Now, as to whether he will actually be released I cannot assure this Court that that is the case.
Speaker: Has the prison informed him of that because of the, because of the opinion that's on appeal here? I mean is the reason that they said phase 1 is enough because of the judgment below?
Billy B. Miller: Your Honor, in speak with my client in reference to that particular subject, he was participating in phase 1 of the program and once the supreme court made its decision and he was sent back to prison he was only able to participate in the phase 1 program for a period of time and they kicked him out of the program. They have since notified him to enroll back into the program and complete the program and they will release him from prison.
Speaker: Mr. Miller, do you, do you agree with the state that our opinion in Minnesota v. Murphy prevents the state from using admissions in this kind of a situation for a perjury prosecution?
Billy B. Miller: Yes, Your Honor, I will agree with that. In fact in Minnesota v. Murphy it is clear that if a person uses statement that will incriminate him, then he has to have immunity. The state cannot either expressly or indirectly force a probationer to admit an incriminating statement.
Speaker: The only language, the case didn't involve that, of course. What we found in the case was that he could have exercised his Fifth Amendment right as far as appears without any consequences, that the state was not compelling him to testify. So the issue was not involved. The only language I find is this, the result may be different, we said, the result may be different if the questions put to the probationer, however relevant to his probationary status, call for answers that would incriminate him in a pending or later criminal prosecution. There is thus a substantial basis in our cases for concluding that if the state either expressly or, blah, blah, blah. In other words even if we had said categorically that the result would be different, that would still have been dictum, but we didn't even say it categorically. We just said the result may be different, and there's a substantial basis for making such an argument. Now maybe there is, but it seems to me a pretty bad argument. Why can't the state put you to your choice? If you want to be treated you admit your guilt and maybe you have to take your chance on a perjury prosecution. On the other hand if you don't want to do that you can't be treated, and since you can't be treated you're going to be a dangerous person and we're going to keep you here for 5 years. Why isn't that perfectly reasonable?
Billy B. Miller: Well, one of the arguments that we raised in our brief is the fact that Mr. Imlay could be charged in the future with perjury if he admitted his guilt in order to participate in a sex offender therapy program. And I think as a result of the decision in the State of Montana in reference to the Drummond case that I cited in my supplemental brief it shows that an admission by Mr. Imlay would tend to incriminate him. In fact the Drummond case where the defendant was accused and was convicted, at least he pled guilty to sexual intercourse without consent, and he was sentenced to the Montana State Prison. In that particular case one of the conditions placed on him was he was required to participate in a sex offender therapy program. In participating in the program he admitted certain criminal acts that he had done prior to being incarcerated. He was compelled to admit these acts because of the fact that in a sex offender therapy program you are required to permit prior criminal acts and you are basically in a position whereby you can either be prosecuted for those acts or you will have immunity for those acts. It depends on the victim. Now, the State of Montana has made it clear in the Montana Code Annotated that where there's a child involved a professional must notify the Department of Family Services of any information he receives during his professional duties that will show that the child has been neglected or abused. That information will also be reported to the state, and in turn the state can file charges against a particular individual while participating in the program. And this is what the Drummond case is all about. Drummond was participating in a treatment program and it showed that the state was willing to take the statement that he made to his therapist during treatment and notify the Department of Family Services. And consequently he was found guilty or he pled guilty to incest, and now he's awaiting sentencing. So basically there is an exception to whether you are granted immunity when you participate in the sex offender therapy program. And it's clear pursuant to the Montana Code Annotated in reference to that area. So basically that is the reason why Mr. Imlay could have been under the threat of perjury because of the fact that the therapist would have been able to testify in reference to any statements made to him, not only the fact that Mr. Imlay would have to make a statement to the therapist but he would also have had to sign a contract.
Speaker: About the prior crime? You're talking about statements about the prior crime?
Billy B. Miller: About the prior crime.
Speaker: So that he could be, he couldn't be prosecuted for the prior crime again but he could be prosecuted for perjury at the prior trial.
Billy B. Miller: Exactly. He could, utilizing the testimony he gave at trial, any statements that he would make to his therapist and additional members of the program could be utilized against him to charge him with perjury for the statement that he made at trial.
Speaker: And you don't think that Murphy would prevent that?
Billy B. Miller: Well, at this point I don't think Murphy will prevent it because of the fact that the state, as I stated earlier, has this provision in reference to individuals who are participating in the sex offender therapy program and that a child is the victim. So there's the exception that Montana has in its code section that would provide that the therapist would be able to reveal this information.
Speaker: But Murphy is a Federal constitutional decision and that provision would presumably have to yield to Murphy if indeed Murphy clearly holds that you can't do that. Now I don't think it clearly holds that. I'm sure it doesn't clearly, I'm sure it doesn't hold it. I don't even think it clearly says it.
Billy B. Miller: I feel that Murphy is sufficient to address that particular issue if the exception in the code section was not available. The exception in the code section is the one that permits the State of Montana to prosecute for any statements made during treatment if the victim is a child, and I think that's what happened in Drummond.
Speaker: Mr. Miller, let me change the facts slightly. Let's assume your client had been convicted and he was brought on for sentencing and the judge had engaged in this colloquy with him. The judge had said basically I have two options. I can commit you to prison for 5 years or if certain conditions precedent are fulfilled I can place you on probation so that you can undergo therapy. One of the conditions of undergoing therapy is that you must admit that there is something for which you need the therapy and you must admit your guilt in other words in order to go through the therapy program. Your client said I'll take the therapy program, Your Honor, and your client then later on, just as he has in this case, refused to admit his guilt. Would he have a Fifth Amendment claim?
Billy B. Miller: Under that particular example I would venture to say that he would not, because he would have waived it by way of accepting the program at the time that the court offered him an option. In other words he would have been in a position whereby he could accept the program, and since he agreed to accept the program he would be in a position to participate in the program. So he would have to admit--
Speaker: Why is... I'm sorry.
Billy B. Miller: --Excuse me.
Speaker: Why isn't he basically in the same position now the colloquy is simply delayed? Somebody has made a mistake, he didn't realize he had to admit it, the court didn't think to ask him. Why isn't he in the same position now except that we're doing it somewhat down the road from the moment of sentencing?
Billy B. Miller: Well, because at that time the court did not give him that choice.
Speaker: I know, but the court's giving him that choice now.
Billy B. Miller: In placing him in the position whereby he would have to admit his guilt in order to participate in the program and he did not have a choice or free choice to admit or deny--
Speaker: The court is giving him the choice now. He said you can either participate in the treatment program or you're going to have to serve time. He is giving him the same choice that he would have given him in the first place.
Billy B. Miller: --But in your example he has a free choice. At the sentencing process he did not have a free choice. The judge placed him on a probationary sentence and one of the conditions was that he participate in the program. There was no choice involved at all at that point. So he did not have a free choice.
Speaker: So you're saying the failure of the court to give him that choice in effect gave rise to a liberty interest which cannot be defeated at this point in the same fashion that it could have been avoided in the first instance. Is that the nub of it?
Billy B. Miller: If the court had notified him basically the position of the program and basically that he would be required to admit his guilt and he had an option at that point, he would be able to make a free choice. He was not in the position to make a free choice. It is clear that by his conduct--
Speaker: Why is his choice not free? I mean, it's a hard choice. He's saying to himself if I admit it I may be subject to a perjury prosecution, if I don't admit it it's going to be 5 years. That's exactly the same choice he would have had in the first place--
Billy B. Miller: --Well, he is obviously placed in a catch-22 situation whereby he would be required to either admit the offense and serve, and basically have a perjury charge brought against him, or deny it as is stated and go to prison. And I don't think that is a choice at all, if you are taking the situation whereby you are placing an individual where both ways he would lose.
Speaker: --Well, why does he have any more choice, Mr. Miller, under the decision of the Supreme Court of Montana where they say you can't force him to be on this treatment program because he doesn't want to admit his guilt and we won't force him to, but if he doesn't he goes to jail for 5 years I mean, isn't that just as much of a penalty under the supreme court's decision?
Billy B. Miller: To a degree, Your Honor, I would venture to say it is a penalty, but we must look at the fact that he is not, he does not lose the right to maintain his innocence simply because he was found guilty. He still can maintain his innocence.
Speaker: He can maintain his innocence while spending 5 years in jail.
Billy B. Miller: Well, that is the option he obviously selected to this point because he is currently incarcerated.
Speaker: And why isn't it very similar to the ordinary plea bargain case where someone has a choice of admitting guilt and accepting the conditions of the plea bargain or foregoing it and taking his chances?
Billy B. Miller: Well, it's different from a plea bargaining because during plea negotiation the defendant has an opportunity to make a determination as to whether he is going to give up a certain right or benefit, i.e. that he is going to accept a bargain from the state for his guilty plea. And that is basically a contract negotiation. Once he has entered that particular contract with the state then he would have to admit his guilt to the court in order for the court to accept the plea bargaining. So at that point he does not lose anything once he has gotten his agreement through the plea agreement because he would have to admit his guilt in order to get the benefit that is in the plea agreement.
Speaker: Well, so the wrong of which you complain is not that he is compelled to make a choice. The wrong of which you complain, it seems to me, is that he was just not advised up front of what that choice would be.
Billy B. Miller: Well, he was not advised to the point that when he attempted to enroll in the sex offender therapy program he maintained his innocence under the impression that he would be able to participate in the program and he continued to maintain his innocence. He did everything that was required of him in order to participate in the program. He made all the appointments and he was very cooperative. Unfortunately his therapist indicated that he could not be accepted in the program because of the fact that he did not admit his guilt, so he was in denial. But at this point he attempted to do everything necessary to obtain admission into the program, except admit his guilt.
Speaker: What would he have done differently, do you think, if he had been advised at the very beginning of this choice?
Billy B. Miller: Well, I would be speculating at this point because I am not privy as to what decision he would ultimately make in this position, but I would venture to say that he would maintain his innocence.
Speaker: Which is what he has done anyway.
Billy B. Miller: Yes, that's correct.
Speaker: Mr. Miller, may I just ask, as I understand it the, after he was sentenced, the third order of sentencings, he has challenged that with a petition for habeas corpus in the Montana Supreme Court appearing pro se, according to your opponent's brief. Has that case been disposed of yet in the Montana Supreme Court?
Billy B. Miller: Yes, Your Honor, that case has been disposed of in the--
Speaker: And what happened?
Billy B. Miller: --Well, it was dismissed. It was rejected.
Speaker: It was rejected?
Billy B. Miller: That's correct.
Speaker: Thank you. Which, just to take that one step farther, which means apparently the Montana Supreme Court was satisfied with the fact that he had to go to jail for 5 years even though, when he wouldn't admit his guilt.
Billy B. Miller: That's correct, Your Honor. The state argues that it is constitutionally permissible to compel Mr. Imlay to admit his guilt for the purpose of having him accept responsibility for the crime for which he had been convicted. Now although this Court has confirmed the position taken by the state regarding the acceptance of responsibility, this Court also made it clear that before a defendant could be compelled to accept responsibility whereby he would have to make an incriminating statement he should be granted immunity. However, in this case with Mr. Imlay immunity would not have been appropriate under the circumstances because immunity is not a protection for a charge of perjury. Mr. Imlay would have been required to make an inconsistent statement in order to participate in the program. So by changing his statement from the original ones he made at trial he would have committed perjury and therefore any immunity that would be granted to a person participating in the sex offender program would not be applicable in his case. This dilemma that Mr. Imlay was facing at the time he attempted to enroll in the sex offender therapy program is identical to that which the sex offender was facing in Gilfillen v. State of Indiana. Now, in that case the court stated that where a defendant has not pled guilty, but rather he has been found guilty while maintaining his innocence, the court cannot force him to admit his guilt as a condition of probation, nor can the court revoke a probationary sentence because he will not admit his guilt. Despite the obvious violation of Mr. Imlay's Fifth Amendment right against self-incrimination, the state court is requesting that this Court should disregard the blatant constitutional violation in the interest of promoting rehabilitation. Now, Mr. Imlay concedes that the state has a legitimate rehabilitative interest in requiring that sex offenders participate in a program. However, since denial is the type of behavior common to individuals convicted of sexual offenses, it seems paradoxical to classify an individual as a sex offender, place that individual on probation, and then revoke his probationary sentence simply because he exhibits the behavior common to sex offenders. The parties who submitted amicus brief on behalf of the state express concern that if this Court upholds the Montana State Supreme Court decision in this case it will have an adverse effect on the rehabilitation process. While their position is understandable, their logic is faulty. Should this Court uphold the decision of the Montana State Supreme Court such a decision would send a clear message to all sex offender programs that society demands treatment for all sex offenders, not just for a few, not just for the ones who will admit their guilt but for all sex offenders.
Speaker: It would also send a message that, 1 would think, that if the state doesn't change its sex offender program those who can't get in it because of their unwillingness to admit guilt will simply go to prison instead, which is what happened here.
Billy B. Miller: Yes, and I would like to add to that that they would go to prison and they will come back out of prison in the communities to re-offend, at least that is the concern of society is that being that they are not receiving treatment they are not benefitting from the incarceration. So to be inclusive a treatment plan would take care of the problem of having individuals incarcerated just for the purpose of incarceration and being returned to the community to re-offend.
Speaker: What are you asking of us, Mr. Miller? What do you want, what do you want states to do? Let's assume that states believe and that medical testimony demonstrates that you cannot have successful treatment without acknowledgement of guilt. Now, I have heard that, I don't, I'm not a psychiatrist, but I have certainly heard that said often that the first step is acknowledgement of your, of the problem. Now suppose that that is true. What would you have the state do? Despite the fact that you can't be successfully treated, let you out before the 5 years?
Billy B. Miller: I feel that the program should be basically structured the same way that you have the Alcohol Anonymous program set up, where a person can participate regardless of whether he is going to admit or not. He needs to be in a program if the individual has a problem.
Speaker: You just want him in the program, you don't care whether he gets out of prison early or not?
Billy B. Miller: My client, in fact my client will be getting out of prison in a very short period of time. I thought I made that clear earlier. So as far as my client is concerned, but as far as the program is concerned in general the program has to be inclusive in order to take into consideration all types of individuals who are considered sex abusers.
Speaker: So, I see. This case is about whether he gets into the program, not about whether he gets out of prison early, not about whether he gets his probation? Just about whether he gets in the treatment program without being willing to confess his guilt.
Billy B. Miller: Well, as I explained earlier, my client will be getting out of prison in a very short period of time according to the information he has received from the prison. So basically he will be getting out of prison in a very short period of time.
Speaker: Okay. You don't want us to say that anybody has to be released early despite his unwillingness to admit guilt? You don't... that's not the proposition?
Billy B. Miller: That's not my position at this point.
Speaker: I don't know whether the prison would take this view if we reverse.
Billy B. Miller: Well, basically as far as my client is concerned he will be getting out of prison in the very near future according to the information I have received from him.
Speaker: Well, I know, according to the information, but you don't know why they said that.
Billy B. Miller: They informed him basically about the first stage. Once he completes the first stage--
Speaker: Well, I know, but you think that's the general rule in the prison?
Billy B. Miller: --I don't think that's the general rule. I think that's an exception to him.
Speaker: Well, why are they saying it to him? Maybe because he won his case in the Supreme Court of Montana.
Billy B. Miller: Well, a lot of things have happened to him since the decision from the Montana Supreme Court while he was in prison.
Speaker: Anyway that isn't part of the record.
Billy B. Miller: In closing it is clear that Donald Imlay's Fifth Amendment right against self-incrimination was violated when his probationary sentence was revoked because of his refusal to admit guilt in order to enroll and participate in a therapy program. Clearly the sex offender therapy program must be inclusive in order to accomplish its rehabilitative objective. Therefore we are requesting that this Court confirm the Montana State Supreme Court decision in this case. Thank you.
Speaker: Thank you, Mr. Miller. General Racicot, you have 2 minutes remaining.
Marc Racicot: Mr. Chief Justice, and may it please the Court: There are two points that I would like to make. First of all in reference to the Drummond case which is not a part of the record, it is not altogether clear precisely what the posture of that case is, but we do know some things. First of all the cases are not final. Secondly, the perjury charge in that case was the result of two different sworn statements given by the defendant, one at his original sentencing and one subsequently at a civil trial. And thirdly, it is not clear at all that there's any evidence derivative of any statements that he made during sex offender treatment that were relied upon for subsequent prosecution. So it is entirely a different case. And in reference to Justice Stevens' point, which obviously poses some consternation for me as well, if we lose, Justice Stevens, the parole board could not refuse parole based upon a failure to complete phase 2 of the sex offender treatment. That's what we want. We want to be able to make Mr. Imlay go through phase 2, which does require an admission. So in our judgment we would urge upon you that there is a case or controversy.
Speaker: May I just ask, is the sentencing order that's now operative, is that in the record?
Marc Racicot: Yes.
Speaker: Can you tell me, it's not in the printed appendix but it's in the record, is that right?
Marc Racicot: That is my recollection, yes.
Speaker: Thank you. But we were told that the prison has informed Mr. Imlay that he's about to be released. Is that in the record?
Marc Racicot: That is not in the record, Your Honor, and I don't know that to be the case. Thank you.
William H. Rehnquist: Thank you, Mr. Racicot. The case is submitted.


Earl Warren: Number 331, Roy Jones versus United States of America. Mr. Asinof.
Wesley R. Asinof: Mr. Chief Justice, may it please the Court. The question involved in this case is on the question of the validity of a search of a private dwelling house and the seizure of contraband articles without a search warrant, the search having been made during the night season and based upon probable cause in a case wherein the federal agents had ample opportunity to procure a valid search warrant. The case arose in the District Court for the Northern District of Georgia and from the facts found by the trial judge after hearing a motion to suppress the evidence in the case of certain articles that were found inside the house. The trial judge found that there was ample opportunity to procure a search warrant, there being five officers in approximately two doors. The evidence disclosed before the trial judge that the agents of the Government had had the dwelling house under observation for approximately three days, that they had probable cause for believing that a -- an illicit distillery was in operation inside the house. Without going into the question of the facts that gave them -- that gave rise to the probable cause, we will concede and it concede in the trial court and in the Court of Appeals that there was probable cause. On the afternoon of --
Felix Frankfurter: Probable cause for -- for what?
Wesley R. Asinof: For the procuring of a warrant.
Felix Frankfurter: For -- to have gotten a warrant.
Wesley R. Asinof: Yes, yes, sir. During the afternoon that the --
Felix Frankfurter: And -- and I think the detail and fact are essential, it seems to me, in this time of the case. Is the -- the probable cause derived on your concession and your present statement on the basis of what they'd observed over what period of time?
Wesley R. Asinof: Over a period of three days.
Felix Frankfurter: Well, when did -- when did the situation develop that lead you to say at that point they could have got a search warrant? When was it?
Wesley R. Asinof: Well --
Felix Frankfurter: Did you say the second day or third day?
Wesley R. Asinof: I would have to answer it in this way, if Your Honor please. On the afternoon of the -- on the afternoon when the actual search was made --
Felix Frankfurter: But -- but out of (Voice Overlap) --
Wesley R. Asinof: -- the search was made at 9:15 but during the afternoon about 1 o' clock --
Felix Frankfurter: (Inaudible) at night?
Wesley R. Asinof: Yes, sir. About 1 o'clock in the afternoon, the agents went to Gainesville, some distance of just a few miles, and procured a daytime search warrant, a daylight search warrant based on the information or the probable cause that they had. The Commission had issued a warrant to the agents to execute a search warrant during the daylight hours. They then --
Felix Frankfurter: Is that customary to have the search warrant state when it made the (Voice Overlap) --
Wesley R. Asinof: Yes, Your Honor, Rule 41 (c) provides that if the -- if the affidavits are positive that -- that the contraband is in the house, then the Commission may -- may authorize the search to be made at any time --
Felix Frankfurter: You --
Wesley R. Asinof: -- but if they are based upon information and belief, then he may only direct the search to be made in the daytime. That is one of the points that -- that I will develop in my argument.
William O. Douglas: That -- that was (Inaudible)
Wesley R. Asinof: That's right. That is the search warrant that they had but the Government does not and never has contended it was used. Now, what they did? They waited until 9:15 that night until after it became dark. The trial judge found that the reason that they had waited was because the agents wanted to see if they could see some other vehicles that they might have seen going in or coming out of that property. So, at 9:15 at night, they made their initial move to search the premises. At the time the petitioner, Roy Jones, was not at home but his wife and little boy had come in the front door and had blocked the entrance to the door and asked him not to come in, to wait until the husband came home, not with --
William J. Brennan, Jr.: Now, right there, did -- what did the officers tell the wife? What's the reason they wanted to go in?
Wesley R. Asinof: To search.
William J. Brennan, Jr.: Is that the only reason they go --
Wesley R. Asinof: The -- the reason that the -- that the agents gave according to the record is that they didn't need -- she asked them for a warrant. She said, “Where is your warrant?” They said, “We don't need a warrant, we're coming in.”
William J. Brennan, Jr.: For what purpose did they --
Wesley R. Asinof: They -- they did not, at that time, state what they were going in there for.
William J. Brennan, Jr.: Did they, at any time before they went by her and into the house, say why it was they wanted to go in?
Wesley R. Asinof: They just said -- according to the record they said, “We are federal law. We are coming in, we do not need a warrant.” That is what the records show.
William J. Brennan, Jr.: Was there any fact finding whether with there was any stated purpose and what's that stated purpose was?
Wesley R. Asinof: I don't believe that the trial judge found. He did find that -- that -- I believe that the findings of fact made by the trial judge are quite extensive, quite lengthy.
William J. Brennan, Jr.: Did he make any finding on this specific --
Wesley R. Asinof: Yes, Your Honor.
William J. Brennan, Jr.: -- matter or purpose?
Wesley R. Asinof: He -- he made the finding of fact in there that the reason that they did not execute the warrant in the daytime was because they wanted to see if they could find some vehicles --
William J. Brennan, Jr.: Well, that's what I -- that's what I'm talking about. What did they tell the wife before they went in?
Wesley R. Asinof: They told her, “We are going in.” They did not state that -- they just simply, according to the record, said to her, “We are federal law. We do not need a warrant. We're coming in.” I don't think that there was any specific language used by them to say, “We're going in for either to --
William J. Brennan, Jr.: Now did the trial judge make any finding whether there was any specific language used by them as to purpose?
Wesley R. Asinof: No, Your Honor. I don't recall any specific language that was used along. But that is to say as to the purpose they went. However, they agent who was in charged did testify and he was asked two or three times, and I pointed it out in my reply brief, that he was asked several times why they -- why they went in there, and his reply to it was, to the effect that they had gone in for that purpose. He just -- he never did say that they had gone in to arrest anyone or place anyone under arrest. That was the Government contends in this case that the -- that the purpose of going in the house was that the officers had probable cause to believe that a felony was being committed inside the house and having that probable cause that they had the right to go in to make an arrest without a warrant. And that after they got in the house that they discovered that there was an illicit distillery in the house, and being in there lawfully, they had the right to see the illicit distillery. That was the point that's made by the Government.
William J. Brennan, Jr.: Well, now, is there any evidence that the wife told the officers before they went to inquire and into the house that the husband was not at home?
Wesley R. Asinof: Yes, sir, yes, sir, she specifically says, “My husband is not at home. Wait until Roy comes back.” And they -- they went in.
William J. Brennan, Jr.: Was there any finding whether or not the husband was in the house?
Wesley R. Asinof: The finding is to the effect that the husband was not in the house and came there by an hour later. He was placed under arrest after the distillery had been seized. Now, getting to the point that they had secured a daylight search warrant, they went in the premises at 9:15 at night and the trial judge found, as a matter of fact, that the reason that they had waited was an order that they could find vehicles either going in or coming out. But they -- the probable cause that we contend that they had and the record shows that they had, exist at the time they went to Gainesville to procure the daylight search warrant and based on that, the magistrate authorized him to make a daylight search. He did not make a daylight search and the trial judge found, and it was conceded by the Government in the trial court in the record, that the search was not made pursuant to the daylight search warrant but was made based on probable cause. Now, the actual finding made by the trial judge, that is to say the conclusions of law that the Court reached in -- in overruling the motion to suppress was based solely upon the Rabinowitz case. It was decided by this Court some few years ago on the theory as the trial judge held and upheld in a per curiam decision by the Court of Appeals that if the officers have probable cause that they do not need a search warrant. We contend that probable cause, as used in the Constitution in the Fourth Amendment, relates to what is necessary in order to procure a search warrant and not what must exist in order for the officer to make a search. The language used in the Fourth Amendment would require such a construction
Speaker: You mean -- you think that the Court read the Rabinowitz case as saying independently of an arrest that if you have probable cause, you can search without a warrant?
Wesley R. Asinof: That is correct.
Speaker: That's the way they read it?
Wesley R. Asinof: That is the -- that is the construction or the interpretation that I believe that you would have to put on the trial judge's opinion in this case. The trial judge --
William J. Brennan, Jr.: But that's not the view of the Government here, as I understand.
Wesley R. Asinof: No, the -- the Government takes a new view after --
William J. Brennan, Jr.: The Government takes the view that there has to have been probable cause for an arrest and the search incident to that arrest.
Wesley R. Asinof: The -- the Government now takes this view. The Government now in this Court, for the first time, takes the view that -- that in this case that the officers or the agents had probable cause to make an arrest and that they have a right to go into a house to make an arrest without a warrant and that after they got in there, they incidentally found that there was an illicit distillery in the house.
William J. Brennan, Jr.: So they're not defending the view of the trial judge.
Wesley R. Asinof: Well, the language that's used in the brief, I -- it -- it's not fully clear to me as to exactly which view they are taking. They say that they do not read the opinion of the trial judge upon which the Court of Appeals affirmed as justifying the conclusion that the raid was made or the seizure was made for the purpose of going in there without going in to make an arrest. But the way I read it, of course, it -- it seems to me clear, one way or the other that they did go in and that they had a probable cause and they had submission time to procure one. I raised this pointed, if -- if the Court please, that when the officers or the agents went to Gainesville to procure the daylight search warrant, that they had the probable cause at that time, whether they were going in for the purpose of -- of seizing the distillery or arresting the petitioner because of the probable cause that they had to arrest him, they could have, at that time, have procured a warrant to arrest him if that probable cause exists at that time and the Government contends that it did. But they did not, at any time, attempt to procure a warrant to arrest or to search with the exception of the daylight search warrant that they did actually procure. Now, the trial judge in his -- in his findings of fact -- now, we -- there's no question but what there were a sufficient number of officers. And the trial judge said that although the officers had ample opportunity to execute the daylight search warrant during the daylight hours, they did not do so but desiring to see as any vehicles engaged in removing the illicit liquors, they did not immediately execute the daylight search warrant but remained on watching until after dark until about 9 o'clock p.m. And this, I believe, would answer Your Honor's question that at that time, the officers attempt to gain entrance in the dwelling of Roy Jones who was not at home at that time. Mrs.Jones attempted to block the doorway requesting the officers to wait until the husband arrives. And at that time, a 12-year old son of the appellant obtained a shotgun and held it in a threatening manner in an attempt to keep the officers from searching the premises. Mrs. Jones asked the officer if he had a search warrant, and he stated that he did not need one. In other words, she specifically did ask, according to the record, for a search warrant. So we contend that if the officers had gone in there for any purpose other than the search of the premises, they would have, at that time, stated so. But they went in regardless without a search warrant.
William J. Brennan, Jr.: Now, did I understand you? There was no warrant of arrest here, was there?
Wesley R. Asinof: There was no warrant whatsoever.
Felix Frankfurter: So that I don't understand if I did understand you correctly, the Government's defense here is that if you have a warrant of arrest, incidentally, you may search. That is -- the case doesn't present that.
Wesley R. Asinof: No, Your Honor, they contend this. The Rabinowitz case is a case wherein the -- the deputy marshals having a valid warrant of arrest went in to arrest the petitioner and at that time, incidental to the service --
Felix Frankfurter: I understand but how does that help this case?
Wesley R. Asinof: They contend -- they -- they're asking for an extension of that case into --into this sort of a situation that where officers have probable cause to -- to make an arrest without a warrant. They contend that they have the right to go in to private property in order to make that arrest and then after they're in there, incidentally, if they find illicit property that they therefore have the right to seize. We contend that's not the law.
Felix Frankfurter: Well, I'll wait until they say but what you're -- what -- I asked this question because I know what you arguable -- I'd like to know what your argument is. As I understand you, you say the Rabinowitz case says, having a warrant of arrest, you may incidentally search. Here, you have no warrant of arrest, though the premise of the Rabinowitz case is out but because if you have a warrant, you may search without a search warrant. In this case, you could have arrested without a warrant of arrest therefore, you can also search. I don't understand that.
Wesley R. Asinof: I don't understand that either, Your Honor. That -- that is the very point that -- that's the very point that I'm -- I'm merely trying to argue against the Government's contention. I do not understand --
Felix Frankfurter: But you said something else that -- I followed but I wondered if you -- you're free to argue, mainly, that the unreasonable of the Fourth Amendment relates not unreasonable in abstract or that is if it, from the point of view of the world outside, bear unreasonable or reasonable. You say the unreasonableness is related to what it is you're getting search warrant for. Is that what you've said?
Wesley R. Asinof: I say if -- if Your Honor please that -- that where a sufficient time exists to procure a search warrant and the officers do not procure one and there is no emergency or unusual circumstances or it is not incidental to a lawful arrest upon a valid warrant of arrest, that they do not have the right to make the search without a valid search warrant. But in such cases, they must procure a valid search warrant where it is practicable to procure one. In other words, the Rabinowitz --
Felix Frankfurter: I -- I understood you to say that. But is that what the case has thus far allow you to say?
Wesley R. Asinof: That is -- that is my interpretation that this Court placed upon a case --
Felix Frankfurter: You say -- are you -- are you saying that the cases do not justify Government's accuse to stand on the case that you're arguing? You may consider whether or not it was unreasonable or reasonable not with the presupposition with the starting point that if you can, you must get a search warrant, but in the context of what took place, forget all about the Fourth Amendment, or this a reasonable or unreasonable search.
Wesley R. Asinof: It was an unreasonable search.
Felix Frankfurter: But I'm saying, isn't -- isn't that what the case is?
Wesley R. Asinof: Yes.
Felix Frankfurter: It's the talk of the cases and this Court upheld --
Wesley R. Asinof: Yes, sir.
Felix Frankfurter: -- namely, if you don't start out at the necessity of getting your search warrant, if it's feasible to do so, what you'd consider independently of all that was this a reasonable or an unreasonable search in relation to what they did.
Wesley R. Asinof: Yes, sir. I think it was in view of the -- in view --
Felix Frankfurter: No, but I'm suggesting to you if the case is, if I understand it, allow the Government to say you don't start out with the duty to get a search warrant if you can.
Wesley R. Asinof: I do not understand that the -- that the law authorizes the Government to make a search of a private dwelling house except in two instances.
Speaker: Is the Taylor case flatly against that?
Wesley R. Asinof: No, no, Your Honor, the Taylor case is not against that. In the Taylor case, as I -- as I recall, the Government relies upon the Taylor case but we do also -- the Taylor case did not hold that Your Honor.
Felix Frankfurter: What about the Rabinowitz?
Wesley R. Asinof: The Rabinowitz case is --
Felix Frankfurter: Rabinowitz made it reasonable because you had a warrant of arrest.
Wesley R. Asinof: Yes.
Felix Frankfurter: But that has nothing to do with getting the right to search.
Wesley R. Asinof: Well, that -- that, of course, is -- that, of course, is what made it reasonable in the Rabinowitz case. It made --
Felix Frankfurter: So therefore -- therefore it negative the requirements that you urge, namely, you have to consider whether they can get a search warrant.
Wesley R. Asinof: That's right.
Felix Frankfurter: And if they can, then they can't search without it.
Wesley R. Asinof: That's right.
Felix Frankfurter: Well, now, how does the fact that you can arrest, give them leave to disregard the requirement of getting a search warrant?
Wesley R. Asinof: I do not believe it does.
Felix Frankfurter: But doesn't the case hold that?
Wesley R. Asinof: I don't know what case, Your Honor.
Felix Frankfurter: Rabinowitz.
Wesley R. Asinof: The Rabinowitz case does not hold that, Your Honor.
Felix Frankfurter: What does it hold?
Wesley R. Asinof: It holds -- it holds incidental to a -- to a valid warrant of arrest that --
Felix Frankfurter: Well, we're seeing the same thing. What do you mean by incidental? It means if you can arrest, you don't have to get a search warrant.
Wesley R. Asinof: That's right. If -- well, that -- in that case, though it was a -- it was an arrest was made upon a valid warrant of arrest.
Felix Frankfurter: Well, yes, but it means that if you can make a valid arrest, you don't have to bother about a search warrant. Is that right?
Wesley R. Asinof: That's correct.
Felix Frankfurter: Therefore, the requirement of getting a search warrant if you can is not the doctrine of this Court according to the cases today.
Wesley R. Asinof: Well, now according --
William O. Douglas: What -- what did the search bring?
Wesley R. Asinof: Provided the search is reasonable. Now --
Felix Frankfurter: (Voice Overlap) nothing. But bearing on the unreasonableness, the fact that you get a search warrant isn't relevant, is that right?
Wesley R. Asinof: That's right.
Felix Frankfurter: All right.
Speaker: Could --
Wesley R. Asinof: Reasonableness is the main -- is the main (Voice Overlap) --
Felix Frankfurter: Reasonableness unrelated to your opportunity or rather the opportunity of the law which is to get a search warrant.
Wesley R. Asinof: But, of course, reasonable -- that would be one of the elements of reasonableness, that is to say whether or not --
Felix Frankfurter: It's not according to the cases.
Wesley R. Asinof: Well, that --
William O. Douglas: But what's the element of (Inaudible)
Wesley R. Asinof: But then, the Jeffers case, if -- if Your Honor please, that Jeffers case change that. Now, in the Jeffers case, this Court went on and said over and again, this Court has emphasized that the mandate of the amendment requires adherence to judicial processes. Only where incidental to a valid arrest or in exceptional circumstances may an exemption lie and then the burden is on those seeking the exemption to show the need for. Now, that, of course, is -- was the one of the latest expressions by this Court and was an expression related in the Rabinowitz case. Now, the trial judge found in this case, as a matter of fact, that if the officers have probable cause to procure -- to -- to make the search that they do not need a search warrant, now, if that is the law, then all need for search warrants is at an end because, as I understand, the decisions thus far that in order to procure a valid search warrant, the officers must first have a probable cause. And probable cause is something that must be determined by a -- an impartial magistrate and not by the officers themselves. In order to procure a valid warrant to search, the magistrate must pass upon whether or not those circumstances are sufficient to show it.
Felix Frankfurter: Well, wasn't all has been -- what you've just said, all been set (Inaudible) as well in a number of dissenting opinions and are you asking the Court to overrule the cases in which those are dissenting views --
Wesley R. Asinof: Oh, no.
Felix Frankfurter: -- rather than court views?
Wesley R. Asinof: No, Your Honor.
Felix Frankfurter: You don't think we have to overrule anything besides --
Wesley R. Asinof: I -- I do not. I do not except --
Felix Frankfurter: (Voice Overlap) --
Wesley R. Asinof: -- except the Fifth Circuit Court of Appeals in this case. I don't --
Felix Frankfurter: They're not for your purposes but is it --
Wesley R. Asinof: Yes.
Felix Frankfurter: -- according to the due regard for what has been said here before? Isn't it enough to say the Court of Appeals is wrong, if they acted on what the Court has decided?
Wesley R. Asinof: Well, they did not act on what this Court has decided, if Your Honor please, because the Court of Appeals has just wrote a per curiam decision in this case affirming the trial judge. And the trial judge based it upon the Rabinowitz case which is not in point. It is not in point with the facts of this case.
William O. Douglas: Would the arrest here (Inaudible)
Wesley R. Asinof: If -- no, Your Honor. There -- there was no arrest made in the house and that is the point in this case. The Government contends --
William O. Douglas: (Inaudible)
Wesley R. Asinof: They did not. That was a 12-year old boy.
William O. Douglas: He is inside the house?
Wesley R. Asinof: Yes, he was inside the house. But there was no arrest made in the house. The Government contends that the officers now, the Government contends that the -- that the agents went in for the purpose of making an arrest, although there's no evidence in the record to indicate that.
William J. Brennan, Jr.: Well, isn't the Government's position that they might reasonably believe that the husband was in the house in spite the wife's denial of it and having reasonable or probable cause to believe that he's guilty of the crime may enter to the house for the purpose of arresting him even though he wasn't there, that their entry for that purpose justified their seizing the evidence which was subsequently used against them to convict him?
Wesley R. Asinof: That is the Government's contention but there is no evidence in the record, no statement by any agent that he went in there for that purpose. There's no -- there's no statement they have been watching the house for about three days. During that time, there's no evidence that they saw the petitioner going in or coming out. There's no evidence that they thought or believed he was in there. There's no evidence that he had -- that they had anytime attempted to procure a warrant to arrest him or not.
William J. Brennan, Jr.: Now, are you telling us that this is the first time the Government has sought to sustain --
Wesley R. Asinof: Yes, Your Honor.
William J. Brennan, Jr.: -- this seizure on the basis of an entry with probable --
Wesley R. Asinof: Yes.
William J. Brennan, Jr.: -- cause to believe that the husband was there and --
Wesley R. Asinof: That is correct --
William J. Brennan, Jr.: (Voice Overlap) --
Wesley R. Asinof: -- that is not position taken by the Government in -- in the trial Court and it was not the position taken by the Government in the appellate -- in the Court of Appeals but the position was first taken in this Court. Now, we have, in this case -- we -- we contend this, that there is a distinction between a daylight search warrant and a nighttime search warrant, a distinction made by Rule 41 (c). And I noticed that the Government in their responds, in their response brief, has not, at any time, sought to answer that argument. And the argument is this, that it requires positive affidavits in order to procure a nighttime search warrant and merely probable affidavit stating probable cause to procure a daylight search warrant. The officers in this case did not at the time they went in to make the search whether with or without the warrant at 9:15 at night. They did not have positive information that a distillery was in operation in the house, and they went in. And we contend that even under Rule 41 (c), that even a magistrate, even the entire judicial power of the -- of the United States could not, under those facts, have authorized a search during the night season. And that when the officers did in this case when they -- when they went in and -- and made the seizure, during the night season, that they went further that then -- then the entire judicial power of the United States could have actually authorized under Rule 41 (c). Now, this is a point that I have raised in my brief and the Government has not answered.
William J. Brennan, Jr.: You have better points on the matter.
Wesley R. Asinof: I -- I have better ones than that and -- if Your Honor please. But we -- we contend that in this case that the Government -- the Government's main point that they raise is, that they went in to make an arrest, that that was the purpose of going in. We say that there is absolutely not want to order of testimony in the record. There's no evidence and there's no fact finding or -- or finding of fact by the trial judge to sustain the contention made by the Government to this effect.
Felix Frankfurter: Does it make -- does it make any difference this was contraband?
Wesley R. Asinof: I would think it made no difference, Your Honor, because of the fact that the Constitution still stands between the -- the Government and the citizen to protect them for many unreasonable search and seizure. And this was an unreasonable search and seizure according to the record in this case.
William J. Brennan, Jr.: Well, what was seized? A steel?
Wesley R. Asinof: It was a steel. A steel -- a contraband steel was seized.
William J. Brennan, Jr.: What steel? Big one? Small one? What?
Wesley R. Asinof: It was -- it was what was known as a large-type steel.
William J. Brennan, Jr.: Difficult to move or (Inaudible)
Wesley R. Asinof: They -- they destroyed it according to the evidence. They destroyed the steel inside the house. And --
Earl Warren: We'll recess now, Mr. Asinof.