Earl Warren: Mr. Solicitor General, you may proceed.
J. Lee Rankin: Mr. Chief Justice, may it please the Court. I'd like to proceed at this point briefly to call attention to the procedures in instituting an immigration deportation case. Prior to the 1956, it was a regularly a procedure to take every petitioner or person who was to be deported into custody and you recall that the Court dealt with that a number of times. I think the last case was in Carlson against Landon. Now, I don't mean that the -- this question of whether it was under the Fourth Amendment was ever squarely raised before the Court and it was not, but, if you will recall that in Carlson against Landon, the issue of bail was raised and there was a division in the Court and certainly, it was said that it was a civil proceeding in that case and it was a clear implication that if there was anything wrong with it being a civil proceeding that it certainly would be raised and the Court in – back, as far as Fong Yue Ting said in -- in dicta that the Constitution as to searches and seizures and a number of other things did not apply. Now I don't mean for a moment that this Court cannot properly now examine that question squarely, because it has not has been before the Court squarely except now with the caveat that we don't think it's properly here now. But, it is a matter of constitutional question that the Court can always properly examine on its own unless, as we've try to point out there's some factors that does result and do result in unfairness in this particular proceeding to have it raised at this late date. But, I want to deal with it squarely anyway and try to show that we -- we would satisfy the requirements even if the Fourth Amendment did apply. Now --
Earl Warren: Well, that -- doesn't that characterization of the deportation proceeding against is a civil proceeding cut both ways insofar as the Government arguing this concern, if it is a civil proceeding, would it follow that the -- that it was contemplated that that should be able to -- should entitle the Government to -- to eliminate the necessity for search warrants to arrest for a serious crime?
J. Lee Rankin: Well, I think that if there was nothing about this procedure that would require taking into custody the way it is done, then I think the incidence to that procedure that the courts have recognized that officers have a right to do, could not be recognized as proper and legal. But taking into custody, as I see it, for a person who is being deported is just as -- has all of the elements of an arrest for a criminal proceeding insofar as the problems dealing with trying to keep that person in custody. And that's -- that's the reason that the courts have recognized since the early English cases, that once you arrest a man, and you're going to take him into custody, you have to have certain powers to go with it. Now, if you think -- are satisfied by our argument that they are comparable and parallel in that regard, then I think you would say regardless of how you characterize this particular proceeding, civil or quasi-civil or -- or criminal, you still have to have the power to do these, the kind of searches to protect the officers and maintain your custody that you do for any other kind of a proceeding where you have to take into custody. Now, that's what we're trying to point out in that regard. We think that there's no difference between the problem of the officers. This is an extreme case because I think we could all concede that a man that's taken into custody that has for a deportation offense, but is an active spy for a foreign government would do all he could where the penalties are so great as they are for that as well as the deportation problem for him to get away. Because, if he could get over either border, with the kind of materials that he had developed for himself to try to conceal the fact that he was not properly within the country, he would be protected against the deportation or the -- or anything else that would result from it. So, his desire to do away with the officer or do anything he could with any kind of a weapon that he could get, seem to me would be just as great as any kind of a criminal that you would pick out.
Earl Warren: I was wondering what -- what your thought would be concerning what Mr. Donovan suggested that if we say that an administrative warrant of this kind was adequate to support a search such as had been made here, that it would no longer be necessary for them to use the search procedure, I mean, added to the use of search warrant procedure in any subversive cases involving aliens. All they have -- all they have to do is just issue -- issue a deportation warrant, go in and search the place for -- for evidence of subversion and -- and entirely avoid the search and seizure clause of Constitution.
J. Lee Rankin: Well, I don't think that that follows. I think if the courts -- either Court before this or this Court was satisfied that that's all this proceeding was, that this was just a device or scheme by means of which they went in for one purpose in order to get evidence for another purpose, but then under your holdings, you'd have to hold that the search was improper, entirely. So, he is assuming that kind of a conclusion as a justification for the legal conclusion, but if you assume it was in good faith, and that it was done for the purposes of deportation, then it seems to me it fits in as a parallel to the cases that the Court has dealt with where you go in for one purpose the mere fact that you discover all kinds of criminal evidence -- not evidence but instruments of criminality at the time you're in there lawfully, doesn't mean that the officer has to walk away and say, “I'm not interested in what anybody can do to the United States or in criminal way by reason of these instruments -- I -- I just close my eyes to those things.” Now, the courts have said before that if you go there for -- in ordinary civil matters and you discover those particular things that are instruments of a crime or contraband, you don't have to turn your back on them and you can pick them up, but, I think his statement assumes that this is done in bad faith and if it was, then I think that your -- that Harris would -- wouldn't permit anything like that.
Earl Warren: But here, why couldn't --why couldn't they have said, “Now you come along with us Mr. Abel, we're going to take you into custody and then leave the officers there and -- and get a search warrant and search the place in a regular manner. What -- what burden would that put on the Government?
J. Lee Rankin: Well, there isn't any question Mr. Chief Justice but what, there was time in this case to get a search warrant. The Government would concede that.
Earl Warren: But would it --
J. Lee Rankin: We got what the kind they want.
Earl Warren: Would it (Inaudible) them in anyway by having done it?
J. Lee Rankin: Well, the law doesn't require there's a difference --
Earl Warren: Well, and that -- that's -- that's what brings us all here and this case is taking a long --
J. Lee Rankin: Well --
Earl Warren: -- time going through all the courts and -- and wouldn't it have been simplified and should have been simplified in this -- in this situation by the -- by them saying, “Well, we'll get a search warrant and search this place.”
J. Lee Rankin: I concede Mr. Chief Justice that would simplify everything. We probably wouldn't have the -- the lawsuit at least about that, but if this was a criminal case, in the start, as I read -- read the decisions of this Court, you wouldn't have to get a warrant even if you had time and could. You see, that was the issue in Trupiano that the Court overruled and held that you didn't, even though you could, have to get it, if it was a criminal case. Now, all I'm trying to say is that if we -- we deal with that as still being the law of the Court, unless the Court decides that it wants to go to some other rule, and we shouldn't have a rule that applies to this kind of a case that's less of -- it's some kind of less than a criminal case, but is more strict than a criminal, is all I say and if this was just an ordinary criminal case, or any kind of a crime, the most extreme that you could have under the laws of the United States, you wouldn't have to go and get a warrant to make the search and seizure even though you had time under the decisions of this Court, if you were properly there and if the -- there is -- items were under the control of the -- as the Court has read it, of the petitioner or the defendant.
Felix Frankfurter: May I ask you, when you say there was time for a search warrant, as of what time?
J. Lee Rankin: Well, I say -- before the --
Felix Frankfurter: Let's say -- begin with -- beginning with the issue of the administrative warrant or there was time that -- as Judge Learned Hand (Inaudible) one of these cases that when they found these things, there was -- there was opportunity to hold him to be -- to assure that he would not escape then go out and get a search warrant while the appropriate officials took -- took care of it.
J. Lee Rankin: And Mr. Justice --
Felix Frankfurter: Which one -- which one do you mean?
J. Lee Rankin: Mr. Justice Frankfurter, I concede there was time at the time they got the administrative warrant, before they went there. Now, after that, I think everything points to the fact that whatever was there would have disappeared. We have proof that this man tried to slip up his sleeves, and the only purpose was concealment, a very important evidence of his or instrument of his activity as an espionage agent. It was communications.
Earl Warren: Well, you had four -- you had four officers there, did you not? You had two FBI officers and two -- two immigration officers. You had just one man involved and he was -- he was under arrest. If you had taken him out of the room and any place, any place you wanted to take him after he was under arrest, how could anything has happened while he was getting searched with the warrant?
J. Lee Rankin: Well, after we had him -- had taken him away under our custody, we certainly could have controlled anything that he would not -- have not been able to conceal. But you --
Earl Warren: Well, they did handcuff him even when he was there right in the room, what could it -- they have done with four officers there?
J. Lee Rankin: Nothing.
Felix Frankfurter: Your position is, you relied on the decisions of this Court?
J. Lee Rankin: Well, that's -- that's what it -- the Court's position has been at all times that if they're lawfully there, up to Trupiano, and in Trupiano the Court said, “If you have time, you've got to go out and get it” and after the -- and then the Court to expressly overrule Trupiano, and said that you don't have to get it if you have -- if you're lawfully there. And I would think that in a case of this kind that's less than a full criminal case, under the decisions of the Court, you wouldn't expect the officers to go out and do that. Now, I don't say they -- it -- it was physically possible or couldn't be done.
Earl Warren: How about the entry into the room of the FBI agents? Did they --
J. Lee Rankin: Well --
Earl Warren: Did they have -- did they go in to execute that warrant, the administrative warrant or did they just force their way into the room as being argued by Mr. Donovan?
J. Lee Rankin: Well, we don't -- the Government doesn't think that they forced their way into the room. They came to the door, and at that point, they had more than reasonable cause. They had a prima facie case which is what is required from immigration cases, it's substantially more than probable cause which is enough for an arrest and at the door, they didn't break the door in at all. They rapped on the door and asked him if they could come in and he didn't invite them in but they went on in. Now, there was --
Earl Warren: But they used a little stronger language than that, didn't they? Didn't they say they forced their way in -- or -- or perhaps pushed their way in?
J. Lee Rankin: I think that their construction of it is pushed their in --
Earl Warren: Pushed their way in.
J. Lee Rankin: -- and -- and went into the room and I -- I didn't conceive of it as being a forceful entry under the decisions of the Court. It seemed to me that that's more like your cases where the door is closed and they break even though there is a screen door if you recall the case, they broke the catch on the door and went on in or they break in the room and so forth. And I --
Earl Warren: But this was before -- this was before you -- you did anything to execute the -- the deportation warrant.
J. Lee Rankin: Well, that's right, but if under your decisions, if you have probable cause, you have a right go in and arrest.
Earl Warren: But then you base -- then you base your argument not on the -- on the -- the warrant of deportation, but on the knowledge that the FBI agents had when they pushed their way into the room, was that a right?
J. Lee Rankin: Both -- both Mr. Chief Justice because --
Earl Warren: That you have to -- you rely on -- on the knowledge they have and the information they have at the time they knocked on the door and pushed their way into the room.
J. Lee Rankin: I can only rely on that as far as satisfying the requirements of the Fourth Amendment because the statute requires that there be an administrative warrant.
Earl Warren: But that wasn't being executed at the time. Those people were deliberately left at a distance away from -- from him and it was only after they have arrested the man that they went -- went and told that the immigration people, “Now you can -- you can come in with your warrant,” isn't that right?
J. Lee Rankin: No, I wouldn't concede that was an arrest at that point. They hadn't taken him into custody at all. They -- the FBI people didn't at all take him into custody, arrest him or say that they arrested him or purport to hold him on anything. If you recall they said to him, “Are you so and so? We believe we know these things about you” and they made inquiries to him.
Earl Warren: For how long?
J. Lee Rankin: For half an hour. Now they could do that with anybody lawfully unless --
Earl Warren: Did they -- could have left anytime he wanted?
J. Lee Rankin: No, because at -- when they got through, they said, “You're going to be arrested before you leave this room,” but they --
Earl Warren: And that was before the -- the other warrant was executed?
J. Lee Rankin: Yes. That was immediately the immigration people came in and served it on him (Inaudible)
Charles E. Whittaker: Well, (Inaudible) to understand how important, you see the other warrant, well had there been any other warrant before the one served by the immigration officers?
J. Lee Rankin: No, but the Chief Justice was asking about the warrant I think and we were saying --
Earl Warren: The -- the administrative warrant --
J. Lee Rankin: Yes.
Earl Warren: -- is the one that I was talking about.
J. Lee Rankin: And said that during this half hour, wasn't their arrest. Now, I didn't -- I don't conceive of that as being an arrest of this man. If he had tried to leave, I think that they would have -- the immigration people would have picked him up under their warrant right then or that I --
Charles E. Whittaker: Then you bring, if I may ask, that is your thought to be suppressed or claim to have been seized by the FBI during that 30-minute interview or period?
J. Lee Rankin: Well, there wasn't. None of them were. None of them were involved. They were all found and seized after that event. And as you recall, that that occurred because the FBI asked if they could have a time to see if he would cooperate with them. And they want to discuss the matter with him. Now, he -- there isn't any evidence that he had any time asked if he could leave or whether he was being restrained or anything of that character. There is evidence although --
Charles E. Whittaker: Was -- was there any search made or anything at all taken into possession prior to the time the immigration officials served this administrative arrest warrant?
J. Lee Rankin: No, there was not. All of the search was after that and there was nothing in a way of search while he was down in Texas, either and in that regard, I want to say that -- well, they say that he was kept incommunicado. That is not an accurate statement of what the record shows. The record is clear that he was told at the time that the order to show cause was served upon him and that he was taken into custody that he had a right to have a lawyer. He never asked for a lawyer at anytime until three days after he was down in McAllen, Texas. And immediately upon his asking for it, he was given a telephone book and made a communication and got the lawyer of his selection. And that lawyer represented him in the proceeding from that time on.
Felix Frankfurter: Since you're on -- since you're in Texas, before you leave Texas, could you please state to us -- in Texas during his sojourn in Texas, there were any searches and seizures. I'm not now addressing myself whether they were illegal or not. Was there anything taken from him, against his wish either implied or explicit which was introduced in evidence of the trial or were there any communications made by him to any of the officers which could -- he could have resisted upon, proposed the introduction of the trial as being coerced confession which affected the (Inaudible)
J. Lee Rankin: There were none of those things in regard to anything that's in issue here. I can't say clearly that there weren't -- there wasn't some kind of search of his belongings later --
Felix Frankfurter: I don't care what took place, both accepting it was resisted at the trial either by a motion to suppress or an objection to an offer heard inside the Government?
J. Lee Rankin: We think there were none.
Felix Frankfurter: None, all right.
Potter Stewart: Including any oral statement that they may have made in Texas?
J. Lee Rankin: Those are all statements that he made in -- no they were statements during the hearing only represented by counsel and there was no objection to them at anytime.
Potter Stewart: And in that hearing, he -- he admitted he was a Russian illegally in this country?
J. Lee Rankin: That's right and -- and when that was introduced to the hearing there was no objection to it at the trial.
Charles E. Whittaker: Mr. Solicitor, I would like to know what happened with respect to items in the suitcase other than these two birth certificates, the vaccination certificate and the bank book and the three pieces of paper that he was putting up his sleeve. Now, the rest of this material in the room was put in the suitcases.
J. Lee Rankin: Yes.
Charles E. Whittaker: And was taken out with him. Now, was there a motion to suppress other things? Did the motion contain a list of the other things and seek to suppress them?
J. Lee Rankin: The motion was much broader than the seven items at the time. And then, he -- during the argument as we presented in our first brief, he took the seven items and said those were the ones he was relying on. And the -- all of the items that were taken were offered back to him except the seven items at various times but he indicated that he had no place to keep them and at one time and that he'd rather we -- the Government kept them until such time as he was able to --
Charles E. Whittaker: Was the motion to suppress sustained as to all items except these seven? Or were they withdrawn from the motion or what happened?
J. Lee Rankin: They were never used anyway. The seven were the only ones that were -- that were involved that were ever used. So that, the only issue of law that could be in the case would be the seven items that were used in the case against him. I'm advised that all except 16 of the items were removed by stipulation by --
Charles E. Whittaker: Removed from the motion to suppress?
J. Lee Rankin: From the motion to suppress and that the only items that were introduced against him were the seven and those are the only ones that could involve any error as far he is concerned. Now, if we were required to meet the -- the requirements or conform to the requirements of the Fourth Amendment, in regard to searches and seizures, then it's a question of whether we were lawfully in the room at the time just prior to the search and that question is determined by whether or not we have we had probable cause to make the arrest. Under the decisions of this Court, if you have probable cause and the most recent one is Draper, then, you have a right to proceed from that point. Now, we had more than probable cause at all times for every officer that had anything to do with this matter, prior to the time that he came up there to make the arrest. We had a prima facie case and that's the requirement of the Immigration Act and as the regulations and instructions provide and we had it in this case and this Court has said a prima facie case is more than probable cause because the prima facie case, if not rebutted, establishes the case and probable cause is merely what a reasonable person would have probable cause to believe that crime was committed.
Potter Stewart: You're talking about the prima facie case for deportation?
J. Lee Rankin: That's right.
Potter Stewart: In answer to a question of Justice Harlan's before lunch, you reminded us that the failure to advice the -- was it the Secretary of State or Attorney -- Attorney General or at least his presence, is not only subjects him to deportation but also a misdemeanor –
J. Lee Rankin: Yes Mr. Justice --
Potter Stewart: -- under the statute, under the criminal statute? Would that certainly insofar as the misdemeanor goes, an administrative arrest warrant wouldn't be sufficient to entitle these agents to enter his room and arrest him, would it?
J. Lee Rankin: No, Mr. Justice, but if you had a -- and there is no requirement for a warrant of any kind for the immigration officers if they are going to arrest for a misdemeanor. There's no provision about it. There's a provision in regard to arresting for a felony or for deportation.
Potter Stewart: In -- in order to arrest for felony, they couldn't certainly do it under an administrative warrant, could they?
J. Lee Rankin: No, because the statute is too explicit about requiring a warrant from the immigration officers and the same is true if we're going to arrest and take into custody for the purposes of deportation. So, since there is no provision under the statute, you look to what the provisions of state law are in regard to it and in that case, if the crime is being committed in your presence, then you have the right to arrest, the officers in the same position as the position of the citizen.
Potter Stewart: As a private person.
J. Lee Rankin: That's right.
Potter Stewart: Under the law of New York.
J. Lee Rankin: That's right, in New York.
Potter Stewart: But the law of New York wouldn't entitle a private person to go up and knock on the door and go in a man's room and see whether or not a crime were being committed in his presence, would he?
J. Lee Rankin: No.
Felix Frankfurter: But he could knock on the door and he could let him in.
J. Lee Rankin: If he's knocked on the door and he was let in and the man was then engaged in committing a crime, the law would certainly permit him to --
Potter Stewart: But would the law permit him to visit the man's hotel room for the very purpose and so -- only purpose of seeing whether or not the crime was being -- was going to be committed in his presence?
J. Lee Rankin: I don't know as to that. I don't think that's quite the case. I think that there was involved in knocking on his door the inquiry that the FBI wanted first to make as to whether he would cooperate and I think they could ask that of any person, a citizen or alien in the country whether it's a reasonable inquiry and I don't see why they couldn't come and if he didn't want to talk to them he could say so and say, “Get out” and they did toss to this --
Potter Stewart: That's -- that's the visit by the FBI --
J. Lee Rankin: That's right.
Potter Stewart: -- and -- and the half hour conversation?
J. Lee Rankin: And then the door was opened and the INS people went in there and this was a continuing crime of not advising the Attorney General of where he was under the statute, and since it was continuing crime it was being committed in their presence and was ample ground for them to make the arrest and everything proceeds from that. They were lawfully there. So, if you assume that a prima facie case is that this Court has said more than probable cause, then the immigration warrant for deportation requires more in that regard than would be required for an arrest that this Court has recognized would allow this kind of search and seizure in any event and they had ample evidence of it. They had all the testimony of the statement of Hayhanen -- Hayhanen about this man being a spy in his background and the various activities and they have this FBI statement that gives in detail his various activities. They have the statement that he purported to be, that he was an alien and purported to be a citizen. They searched the records at -- when this was brought to their attention and found that the record showed that he hadn't made any report to the Attorney General. They had that proof that he had not complied with the law in that regard --
Charles E. Whittaker: As I understand (Inaudible) was to obtain evidence of espionage. Now, that is tried out?
J. Lee Rankin: Yes, that issue was tried out in at great -- in great detail and both lower courts found against him on it.
Charles E. Whittaker: On --
J. Lee Rankin: On a good faith.
Charles E. Whittaker: On contested evidence?
J. Lee Rankin: That's right. He had every opportunity to produce his proof and did and the Government introduced its proof and it was found against him on that issue of good faith in both lower courts.
Charles E. Whittaker: And you would concede that isn't it that if the contents of his argument were not true, would that -- would the search would be valid?
J. Lee Rankin: Well, it seems to me that Harris decides that, but if there's bad faith, if you're really using an arrest as a device to try to get evidence that it would be unlawful and that it's only when you act in good faith, that's a prerequisite. Then after you proceed in good faith, if you find instrumentalities of the crime, in contraband and those things that you don't have to “turn around and close your eyes to them and go away.” That you can take them and --
Charles E. Whittaker: If I understand your argument, (Inaudible) that for one type of evidence and you record in this (Inaudible) you got one to other evidence and made it other times, you may take that lawfully also?
J. Lee Rankin: Well I -- I just -- in answer to your question, I have to -- do not concede the word evidence because the Court has said that it has to be instrumentalities of the crime and these all were, these seven items. So, conceding that, there's no question under the decisions with what -- once you're lawfully there and you try to make a search that is within the area of -- under the control of the petitioner or the defendant, then, any instrumentalities like crime and contraband or weapons or other means of escape are lawful to search for and to seize.
Charles E. Whittaker: So, is the crime lawfully there like the right response or it resulted to the arrest which still happened to be lawful?
J. Lee Rankin: Oh, yes. I -- I was trying to include that within the lawfully there. I -- I -- you have to be able to make the arrest. You have to have probable cause for believing a crime has been committed.
Charles E. Whittaker: Crime, it has to be crime?
J. Lee Rankin: Or the act.
Charles E. Whittaker: And public wrong?
J. Lee Rankin: I think the public wrong is enough under Davis and Zep. That you then have a right to search the person and what's within his control and you have the right to seize -- those are two factors anything that's an instrumentality to the crime or contraband or a means of escape. Now, I do -- would like to call the Court's attention to the fact that the Government is not in a -- unfair or bad position in regard to the procedures in regard to deportation action. That it is a fair proceeding that since 1956 only, arrests have been only instituted in cases where it's either necessary or desirable under the regulations and that has to be decided by the District Director or his deputy and obviously, a case like this is one where that we would certainly agree that was both necessary and desirable to take into custody anybody who was then engaged in espionage activities. But, and in addition to that, there has to be a prima facie case instead of -- case of only probable cause. So, then an effort has been made by the Congress and the Government to have a completely fair proceeding in regard to deportation matters. And this Court has not squarely passed upon that but in Carlson against Landon, the Court did say that it was obvious that if you're going to deport a man, you'll have to take him into custody and refer to the statute where the Attorney General was given that power to act under an administrative warrant and didn't squarely pass on it but certainly by inference, recognized that it was a valid procedure.
William J. Brennan, Jr.: May I ask Mr. Solicitor General, to the extent that you were relying upon a crime being committed in the presence of the officers, this presupposes a lawful entity for the purposes of making an arrest, does it?
J. Lee Rankin: Yes.
William J. Brennan, Jr.: In other words, could any of this had happened if they had not entered the room for the purposes of making an arrest to the extent you rely on the crime being committed in their presence as justifying the arrest?
J. Lee Rankin: Mr. Justice, I can answer that that if none of it could be except that if I -- I think there is the aspect that if you invite me into your house and I -- happen to be an officer, and I visit with you awhile, and then see anything that you're doing is unlawful, I haven't committed any wrong up to the time as long as you're not putting me up.
William J. Brennan, Jr.: Well, suppose -- suppose though one is invited in and the officer invited in doesn't know that this chap is an alien illegally in the United States somehow under these you've picked up aren't the issue here. Later, the Government learns that in fact this fellow was an alien illegally in the United States. May you then justify picking these things and using him an evidence on the ground that well in fact he was committing a crime in the presence of the officer or the officer didn't know it?
J. Lee Rankin: Oh, no. You've got to have the probable cause when -- when you try to arrest him, at that time, you've got to have sufficient probable cause. I think the case of the Court in regard to smelling the heroine out in the hall is exactly that kind of thing where they were going to guess about who might be there and there was only one man in the room. They found out later that they -- there could have been many other aspects but in this case, it seems to us it is different or when they were there, they knew all these things.
William J. Brennan, Jr.: But, I was trying get clear is that your position then is that there must be knowledge on the part of the arresting officer that the crime is being committed in his presence?
J. Lee Rankin: That's right. And he has --
William J. Brennan, Jr.: And the only way that knowledge existed here was that they had foreknowledge that he probably was the agent masquerading as Goldfus and Collins, isn't that it?
J. Lee Rankin: Well, they also knew that before that that they had searched the records and they found the express element of the crime that he had not reported his address you see. That is what the --
William J. Brennan, Jr.: They knew that at time they entered the room?
J. Lee Rankin: That's right.
William J. Brennan, Jr.: So, your whole argument then is premised on their actual knowledge that this particular individual had not registered and therefore while in the presence of the officers, he was still committing that same crime?
J. Lee Rankin: That's right. He was continuing not to register and that was the -- that's a continuing crime in accordance with the other holdings of the case of the Court along the same line.
William J. Brennan, Jr.: What does the record show they had checked in fact, whether a Martin Collins had registered or whether an Emil Goldfus had registered?
J. Lee Rankin: They've checked according to the record, a Martin Collins, Emil Goldfus and Abel.
William J. Brennan, Jr.: All three?
J. Lee Rankin: That's what Noto said they checked the records there.
Potter Stewart: Because Martin Collins – if there was such a person was supposedly born in this country and was a citizen.
J. Lee Rankin: That's right.
Potter Stewart: And the same is true of Goldfus.
J. Lee Rankin: Yes.
Potter Stewart: So I don't --
J. Lee Rankin: Of course that I think --
Potter Stewart: This is a (Inaudible) proposition, isn't it?
J. Lee Rankin: Well, I think well, Abel too, but I think they are entitled to a presumption that this man wouldn't register.
William J. Brennan, Jr.: Well, this is based on the fact that --
J. Lee Rankin: But this --
William J. Brennan, Jr.: They knew he was Abel not that he was using the name Collins or Goldfus or that he was Collins or Goldfus.
J. Lee Rankin: And they examined the records for all three according to the record and they found that he -- that he hadn't registered under any of them. Now, if they'd -- if he had registered on under Martin Collins and they could identify him, it would -- that -- it might have been an offense because it couldn't be properly --
William J. Brennan, Jr.: Well, he had in fact the Martin Collins, he wouldn't have to register because then he would have been an American-born citizen.
J. Lee Rankin: That's right.
William J. Brennan, Jr.: And if he'd in fact been Goldfus, he would not have had to register.
J. Lee Rankin: That's right.
William J. Brennan, Jr.: So, it must have rested on the fact that one Abel hadn't registered, was it not?
J. Lee Rankin: Yes. And the further fact that they -- that record is clear that they did search the record for each of those.
Potter Stewart: And how -- how did they know about the name Abel by this time because Hayhanen only knew this man as Mark, didn't he?
J. Lee Rankin: The record says they searched for Abel, Martin Collins and Goldfus. That's --
Potter Stewart: Is there any indication any where has to -- that anybody knew this man's true name was Abel or one of his names is Abel?
J. Lee Rankin: I'm not clear as whether the FBI did at that time. But --
Potter Stewart: It's not in this report?
J. Lee Rankin: No.
William J. Brennan, Jr.: Well, is it in this record, there is a testimony in this record that whoever it was and said he might be --
J. Lee Rankin: He had in the testimony of Mr. Noto, who said he --
William J. Brennan, Jr.: Mr. what?
J. Lee Rankin: Noto. N-o-t-o, who said he searched for each of these three names and how he made that search is not explained. I do think if they had thought there was some discrepancy on -- in regard to that, it was up to them to bring it out and show what -- how he happened to know because it's very clear that he made a search according to his testimony and it's uncontradicted. I think the fact that this was not properly developed before the lower court is an important problem in this case and that the Court should give serious consideration to. I tried to point out the fact that the legality of the rest was not raised. In fact, they conceded that it was the duty of the Immigration Service to make the arrest. But also the -- the handling of the case could have been much different and the Government could have either had the -- the Court could have excluded these items from the record and then we wouldn't have this problem here. Or, if they failed to -- if the Court failed to do it, then the Government could have done it in light of the overwhelming evidence that they had and avoided any complaint of error at this point. The seven items are a very small part of the case. We -- the Government concedes that the three items or two in the waste basket, and the one he tried to slip up to his sleeve, would be prejudicial because those are the very kind of things that espionage agents use, the alienage materials that he had which were the spurious and fictitious birth certificates including another vaccination certificate and the savings bank book were all cumulative. The Government had overwhelming evidence in regard to all of those different activities prior to the time that there was -- the search was made for those and the seizure was made. They had the knowledge of his bank account that he had a ledger account, that he had signature cards under the name Goldfus. They had knowledge of the fact that -- and they've proved all this in the case. That he was renting and had lease on the 14th Street property under the name of Goldfus. They had the evidence with regard to the Latham Hotel in fact that he rented or took that room under the name of Collins. They had the fact that all the testimony of Hayhanen about his activities as both Gold -- Goldfus and Collins. They had the fact that he had suggested to Hayhanen that he would procure for him and did procure a fictitious birth certificate for him that could be used to conceal the fact that he was, that Hayhanen was illegally within the country. They had Hayhanen's statements to them that the petitioner was illegally in the country and had told him so that he had these means by which to try to establish his identity -- identity as a citizen if the question came up. They had the statements of Hayhanen that he -- could escape across the border if the question came up as to the fact that he was illegally within the country as an alien. All of those things, they had in proof in the trial. Now, I'm not saying that these weren't of some evidence, but I don't think they added very much when you add all the evidence that the Government had in regard with alienage question and his activities as far as these four items that were not obtained from the waste basket or from his sleeve. So that --
Potter Stewart: Does the record show how and when they got into the waste basket?
J. Lee Rankin: After he left -- that the record is clear that after they left, the FBI went to the manager of the hotel and asked Kehoe to search the waste basket in the room and they proceeded to do it and these items were items that were concealed as you probably recall from the record the code book and the microfilm were contained in the -- in this pencil that could be taken apart and the sand -- sanding block that could be taken apart. So, they had to take these items which were not obviously contraband or instruments of illegal action and take them and examine them in a laboratory to see how they could be -- whether they can be taken apart and just how because it was very skillfully done. They also had of course evidence of this petitioner's using these kinds of instruments, a large number of them. In regard to communications, they found in one of the drops the -- one of the messages that he had sent but nobody picked up and it just happened that someone apparently of the park people had cemented over the place where the drop was left and this bolt that could be taken apart that have been left there with the message in it but apparently it was a message between Hayhanen and the petitioner in regards to some of their activities. So, that they had all of that -- that evidence in regard to this case to just add these items on to. Now, it seems obvious to the Government that to us in behalf of the Government that if there was a serious question raised about whether there was probable cause or whether the arrest could be made at that time and they have brought it up with the -- all of these issues about the Fourth Amendment and so forth that it would not have been wise and that the Government would have -- would not have proceeded to use those items when it had so much other evidence in this case of the espionage activities and everything else. And so, then, we come to the question of whether the Court can properly examine and of course I concede that the Court can always examine a constitutional question, but in regard to a matter of this kind, whether it's properly here, you said in the past that unless it was a constitutional question where you think that it will reflect unfairly as to the conduct of judicial proceedings, or if it's an obvious misconstruction of the law, and matters of that kind that you would not go back and examine here errors that were not properly called to the attention of the lower courts. And you said the reason for that is that it's unfair that the litigants should raise their questions before the lower courts so they have an opportunity to pass upon them, and also it's in the public interest to try to settle these matters without having them go on indefinitely. And there isn't any reason why these questions couldn't have been properly raised in the lower court if they had seen fit. So, we think that that alone will be accumulative character of this evidence, the -- such positions are not properly raised here and should not be considered because they are not developed in this Court under the rules that you have generally adhered to with regard to such matters.
Felix Frankfurter: May I come to you in some of the -- not to summarize but to deal in particularity with the four so-called identifying items bearing on the illegal search and seizure (Inaudible) just whether those four documents were when -- where they were when the officer entered the room and of course by reaching the place from which they came into their possession.
J. Lee Rankin: Mr. Justice Frankfurter, I --I can't answer that question. It wasn't developed in the evidence with specificity so that I could tell you just where they came from.
Felix Frankfurter: Do you think that for the -- in the -- does the record show whether they were in the room in which the transactions -- or in which they were present or in some -- they were in the bathroom or bedroom, or whatever.
J. Lee Rankin: I think the record fairly shows that they must have been in the room rather then the bathroom because the record is quite clear that there are only some small items like paints and so forth on the window sill of the bathroom.
Felix Frankfurter: But, what does appear from the records to show the -- the spatial relation in the room that they faced, between those documents and the officers when they took hold of them?
J. Lee Rankin: I just have to try to conclude from the records generally that they were in the room and they were in some of this closing -- clothing that they packed.
Felix Frankfurter: And did they come up on them as they put the clothing in the suitcase or trunk?
J. Lee Rankin: That isn't clearly developed.
William O. Douglas: I understand that they -- about two of them later as they were going through the suitcase, after they had taken him to the headquarters and two of them from the (Inaudible)
J. Lee Rankin: I think there is some evidence that one may examine it --
William O. Douglas: We're talking about the first four that you (Inaudible)
J. Lee Rankin: That, yes.
William O. Douglas: -- (Voice overlap)
J. Lee Rankin: At the headquarters that there were two of them. Whether they came under those in the room is not developed in the evidence.
Felix Frankfurter: In the -- the evidence doesn't disclose there wasn't -- that they came into the possession of the officers through an active search of the premises. Can you answer that? Was there an active search which resulted in the discovery in those three -- in the subsequent seizure of these documents?
J. Lee Rankin: Well, I think with the two up at the headquarters, there was an active search.
Felix Frankfurter: Well, after the -- after the baggage was there?
J. Lee Rankin: Yes. But --
Felix Frankfurter: Was there in the room -- was there a search in the room -- was there a search out of the room? The officer which disclosed the existence of documents which the officers then took hold off.
J. Lee Rankin: The --
Felix Frankfurter: Is that developed in the record?
J. Lee Rankin: As -- as I read the record, they didn't discover these documents until they started to tracking them up and went through them. Now, there was evidence that there was --
Felix Frankfurter: And they didn't do with the tracking, I am treading on dangerous territories, they did do the tracking after they asked his wishes about it, didn't they?
J. Lee Rankin: Yes. Now, that they did make a search of the closet as I understand the record before they found any of them, but they didn't find it then.
Felix Frankfurter: Even in the mouth of the closet that these four documents or any of them. They didn't come out of the closet. To their conscious knowledge they didn't come out of the closet in some clothing they took. I bother you with these questions because for reasons that you (Inaudible) the mind -- you know the attitude about these problems.
J. Lee Rankin: As I read the record Mr. Justice, I didn't find that they were -- and they found them in their search of the closet. But I -- I thought they did find them when they helped him pack up.
Felix Frankfurter: But there wasn't -- can you -- can you say this even at the risk of boring repetition, there wasn't a claim made by the defendant below that in fact there was a search of the room and in the course of that search, they came upon these documents. Was that claim made explicitly like that below?
J. Lee Rankin: Well, I think they have made very clear claim that the room was searched. And that to choose -- the -- record of the search they found these documents.
Felix Frankfurter: Yes.
J. Lee Rankin: Now, the issue was that we claim that he asked -- he was asked whether he wanted to leave and they offered to help him pack and they did. And they went through his things as they packed, but I think there is evidence also that the officers went through the closet before they could --
Felix Frankfurter: Is there evidence that these -- these papers were the fruit of that closet search?
J. Lee Rankin: No, I don't think so. Now, we did --
Earl Warren: The items -- General, were the items they took from the waste basket, did it take them in the course of the search or in the course of helping him pack up?
J. Lee Rankin: No, they were taken after he left and after they got permission of the manager to search the place after he'd given up the room. We do take the position, the Government does that any discrepancies in clarifying where it was and if the search was beyond or the seizure beyond where it should have been, the burden would be on the petitioner to show that in support of his action that if he left some loophole as to what really happened, that might be helpful to him, he should have moved forward and proved it.
Earl Warren: Mr. Donovan, you may proceed with your argument.
James B. Donovan: Mr. Chief Justice, may it please the Court. I intend to make no details of why, but nevertheless, there are I think a variety of matters here that should be cleared up because at certain times this afternoon I was gradually coming to the impression that I was in three other cases. Now in the first place, Mr. Chief Justice, with respect to this time within which to get a warrant, you will find that Appendix B in our principal brief makes very clear that they had over a month in which to obtain a warrant because over a month before this they not only had Hayhanen's testimony but had corroboration from what was --
William O. Douglas: That was the Solicitor General (Inaudible)
James B. Donovan: Next Your Honor, with respect to his being advised that he could have counsel, you will find that such a statement was made but no statement as to when he could have the counsel. You will find that in the appendix to our reply brief, we carefully set forth the citation to the provision of these regulations and the warrant makes this also clear that under the existing rules, this right to counsel is the right to be represented later at the formal proceeding.
Felix Frankfurter: Was there any -- wasn't he told that he could have counsel was there no telling?
James B. Donovan: So far -- so far as this record shows, Your Honor, you will find that this statement he was told he could have counsel but not as to when he could have counsel and I'm explaining that under that customary procedures which I've cited in the appendix, it's in a from of regulation.
Felix Frankfurter: Was there a witness that -- who testified that he was told he could have counsel?
James B. Donovan: A man from Immigration and Naturalization, Your Honor. They agreed --
Felix Frankfurter: At the trial -- at the trial?
James B. Donovan: At -- at the hearing which preceded the trial.
Felix Frankfurter: And was there a -- lawyer in person? Did it -- Abel have a lawyer?
James B. Donovan: Well, I'm beginning to wonder about that, Your Honor. If the -- several of these discussions --
Felix Frankfurter: You have to know that
James B. Donovan: (Voice overlap) have to know that I --
Felix Frankfurter: (Voice overlap)
James B. Donovan: The answer is yes.
Felix Frankfurter: Now you got one now, haven't you?
James B. Donovan: The answer is yes and he got a lawyer that made everyone of these points.
Felix Frankfurter: Now, what do we want to know --
James B. Donovan: -- with a (Voice overlap) great difficulty in the Court below I'd like to call to your attention that one of my four points of certiorari was that the conduct of the Court below including the difficulties of the defense was such as to exercise or call for an exercise of this Court's supervisory jurisdiction.
Felix Frankfurter: Now, let's get back to the question that he was told that he could have a lawyer. Where do I find that in the record?
James B. Donovan: It's --
Felix Frankfurter: Not the regulation, but the testimony.
James B. Donovan: I believe it was when Mr. Maroney was examined by one of the INS agents. A question was asked was he told. And this was corroborated by one of the FBI agents. But I'm just pointing out Your Honor that under this regulation, it says, “Notice of right to counsel and release from custody. On service of the warrant of arrest, the alien shall be advised of his right to representation by counsel, at no expense to the Government at the hearing to be held under the warrant of arrest.” And so too, as amended that this so far as I know is still a procedure. This again Justice Harlan, in the event of a deportation proceeding, this again would be something that would have to be brought into a great detail, but I'm just -- just pointing that out and with respect to his knowing his rights under these circumstances of course is absurd. Now this argument, Justice Brennan, about the fact that a crime was being committed in the presence of the arresting officers, this isn't a fraud and this -- this is a new thought in the Government side. This cuts two ways because if that was so, under the Harris case, they had a great duty to have with that foreknowledge to have obtained a warrant for the man's arrest. Now, with respect to how general was the seizure, I can't make it more unqualified than this. They seized everything belonging to that man in that room. Every one of his possessions and after leaving, came back and searched the waste paper basket. There could be no more general a seizure than was made, that's number one. Number two, to what did I object? You will find that the papers that I drew at that time objected to every item which they seized. Now, before this -- the trial commenced, Judge Byers in what's a perfect normal thing, said, “Well, with how many items are we dealing?” He had hundreds of paintings for example. “Are all these involved in this motion? It would aid me if counsel could agree as to what are involved.” Whereupon, the Government said, “Well this is involved, this isn't so.” Now, what's involved in the question before this Court? In Appendix C, on page 41 of my principal brief, I made reference to this on the original argument. We have set forth for the convenience of the Court, dozens and dozens of items that are involved in this question and as to every one of those items, there is a -- there is a question embraced under my original motion and I have never withdrawn one contention in this respect as from the first day that I commenced to proceed. We divided these items for your convenience into one. Item C is at the Latham which were introduced as exhibits of the espionage trial. We've given a page number where they were identified the page number were received. (B) item (c) is at the Latham which were used to obtain exhibits introduced at the espionage trial. Item C, additional item C is at the Latham concerning which testimony was offered at the espionage trial. And finally item C is at the Latham which were used by the Department of Justice to procure a search warrant for espionage materials. And then finally, several other items all of which were identified and received at the trial, it's this whole mass of evidence that we're dealing with. And this discussion about five items or seven items is -- is in my judgment absurd.
Speaker: (Inaudible)
James B. Donovan: I beg your pardon?
Speaker: Was anything you except for that trial?
James B. Donovan: Your Honor, all of these was used. In Appendix C, I've given page number of when it was identified and when it was received in evidence. We're talking about several hundred items.
Felix Frankfurter: Would you mind indicating your (Inaudible) what there is about the seven items that makes the Government club them together and so they constitute a separate class?
James B. Donovan: Well, it obviously is the argument which was given to the Circuit Court and the Circuit Court adopted that this is a little evidence. This is just a little evidence. There were only seven items. And --
Felix Frankfurter: Why is it a seven, why not six or nine?
James B. Donovan: Your Honor, I'm not responsible for computation. I'm just explaining that without contradiction by the Government, we spent weeks compiling all these items.
William O. Douglas: Well, these seven are the only ones that were offered in evidence (Inaudible)
James B. Donovan: That's not true, Your Honor.
William O. Douglas: But your items are in there are -- that you are referring to now are two of the categories as I read it best. First, those items have been used to obtain from the Circuit Court and other items and secondly, those items are that were seized by the agents or officers of the United States had testified during the trial?
James B. Donovan: And that is correct. In other words --
William O. Douglas: There were only seven introduced in the evidence.
James B. Donovan: But -- but Your Honor, the -- the -- this massive evidence was obtained by using search warrants which are in the record, which were obtained on the basis of reciting everything that was seized at the Hotel Latham. So under established decisions of this Court, they are involved just as much as those original.
Speaker: (Inaudible) only items that were received in evidence of the trial is -- of which he was convicted was the seven items we've been talking about?
James B. Donovan: Let me explain, Your Honor. They -- they first made this general seizure. We can talk about the seven items that were in that hotel room. Then armed with the information obtained as the result of what I contend as an illegal search and seizure, they went and got several search warrants over in the Eastern District of New York and used these to go through his studio over in Brooklyn at which they obtained additional (Inaudible). They also obtained leads and so on from, all stemming from the original illegal search and seizure at the Latham. And under the rules of this Court and of the Second Circuit, I have sought to bundle all these together for the convenience of the Court. But what I want to make clear is, that this entire mass of evidence objected to and I respectfully suggest that not only are we -- of my affidavits in the Court below but also of this memoranda of law to which I've made reference will show that we contested every bit of what was evidence. Now, with respect to this arrest --
William J. Brennan, Jr.: Before you leave it Mr. Donovan, just look at your (A), your Item (A) there at -- at page 41. Now, there under (A), you have here ten exhibit numbers and the pages that which respectively, they were received.
James B. Donovan: Yes, Your Honor.
William J. Brennan, Jr.: 87 is the hollow pencils, now when was that? Is that what they took from the waste paper basket?
James B. Donovan: I believe the answer is, yes.
William J. Brennan, Jr.: And is that true also of the hollow block of wood?
James B. Donovan: I believe, yes.
William J. Brennan, Jr.: Well now, what about the microfilms, 97. Is that -- were those microfilms included in either the pencil or the block of wood when they found them?
James B. Donovan: They were in the hollowed out pencil, Your Honor.
William J. Brennan, Jr.: Well, what I'm trying to get at, there are 10 items and we're talking about seven. Now, how -- how do we --
James B. Donovan: Your Honor -- Your Honor, all that I can say is that -- that my motion was addressed to my objections to the trial were addressed to and my argument in this Court is addressed to this entire mass of evidence.
William J. Brennan, Jr.: Well, what are the two letters, 98 (A)? What are the two letters? What are they? Are they any of the seven that have been mentioned?
James B. Donovan: These two letters -- my recollection Your Honor, are the ones which purported to be in his family. Is that correct? They were in microfilms too, Your Honor. Now, turning to this question of the --
Speaker: (Inaudible) the Court of Appeals passed on the validity of the search and seizure that produced these seven items that we have?
James B. Donovan: Well, Your Honor, in their opinion that is what they decided on but I made to that Court the same argument I'm making here. And Your Honor will find that all the proceedings of the District Court relate in the broadest possible language to every thing not only seized at the Latham but on leads, on leads obtained at Latham. This is made perfectly clear in the affidavits of the District Court and in the memoranda of law. Now, turning to this question of what was the arrest? First, let me -- let me say that as I would understand the Government's argument this afternoon, it is as say, Gertrude Stein might have expressed it, “An arrest is an arrest is an arrest”. I don't know what kind of an arrest was made in this case, until the decision of this Court. I know that I won't because as Justice Black suggested, in the memorandum of law which I've now submitted to Justice Clark, you will find that -- that my point was, this was not a criminal arrest. Therefore, it must be a civil arrest and not only am I confused in the point but the last I know so is the Department of Justice because their answering memorandum to me said that it was an arrest sui generis. I have never heard of arrest sui generis and I still don't quite understand that. Now, all I'm trying to say is whatever you decide, whatever kind of an arrest it was, I object to it in this case. [Laughter]
Felix Frankfurter: But the Court isn't talking about arrest, we talked about lawfully on the premises. Would you -- would you agree or disagree that first the FBI could knock at my house tonight and asked to be let in and then I ask me would I gladly tell about John Jones? They could do that, couldn't they?
James B. Donovan: Your Honor, any morning at 7:30, when two men push their into my house and while I'm naked, as the evidence shows in this case, and begin to question me showing me envelopes from the FBI, this could be a little difficult.
Felix Frankfurter: You'll tell them to get out, wouldn't you?
James B. Donovan: I most assuredly would.
Felix Frankfurter: But are you willing to say that -- or you can say that knock at the door -- on the door and not seeking to arrest you or not being lawfully on the premises, would you?
James B. Donovan: Your Honor --
Felix Frankfurter: I think I wouldn't.
James B. Donovan: This suggestion that they really were there, I'm beginning to learn to helpfully pack them in. They were really being --
Felix Frankfurter: That isn't my question
James B. Donovan: -- helpful.
Felix Frankfurter: My -- that isn't my question. My question is whether the F.B.I simply could come to me 7:30 and rouse my maid instead of the sleepy masters and ask them, could we see the justice we want to ask him about John Jones? Would that be unlawful?
James B. Donovan: That would only be discourteous.
Felix Frankfurter: To whom then?
James B. Donovan: That would only be discourteous but I suggest that it perfectly evident in this case that more than discourtesy was involved. It's perfectly everyone knows that the F.B.I is under regulations to always be armed. That two armed men break into my house in the -- in the morning in the manner in which it was done here and precisely the same rule's involved so far as I know.
Felix Frankfurter: It is also perfectly well-known and you thought it was in the height public or in the height of public interest that FBI simply might ask somebody who is under the decision for espionage to become a defectively country.
James B. Donovan: That is correct.
Felix Frankfurter: It's also well-known.
James B. Donovan: That is correct.
Felix Frankfurter: You thought that was in a high public service?
James B. Donovan: I do. Now, finally, I again want respectfully to bring the Court back to what I contend is the major issue in this case. At one point this afternoon, I thought that the major issue was whether the rule of the Court that now only extends to four rooms whether it should be extended to a room and bed. What is at stake in this matter? And the issue that must be decided by you is the extent to which internal security shall be permitted to prevail over constitutional guarantees. Now, what does this issue mean? It means that there are inherent difficulties in a democracy in attempting efficient counter intelligence and there are degrees of efficiency. Does a decision in this case that these methods can't be permitted mean that we have no counter intelligence? No. But on the other hand, do we want so efficient a counter intelligence in the United States as the Gestapo or La Chica. This is an inherent part of democracy. And I suggest to this Court that in deciding this question, which I would assume is the only reason this Court would have taken certiorari in this case, that in deciding that question that the Court advert to the argument which I've made in my original argument, and that is that even as a matter of national defense, the most important thing to United States today is to maintain our way of life in a free society held out to the other nations of the world that they have something to aspire to. Now, I say that kind of a way of life is the kind of way of life that is threatened in precisely this case and that violates a democracy that was created by people who had fled from precisely this kind of thing and who carefully provided in the Fourth Amendment the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizure shall not be violated and no warrant shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized. That kind of simple language is what created the society we live in. That rule has been violated in this case, and I respectfully ask that the judgment below must be reversed. Thank you.