Earl Warren: Number 63, Nelson Sibron, Appellant versus New York. Mr. Finkel you may proceed with your argument.
Kalman Finkel: Mr. Chief Justice may it please the Court. This is case is here on direct appeal from the New York Court of Appeals. It is an appeal from the judgment convicting the appellant of the crime of possession of narcotics as a misdemeanor after a preliminary motion to suppress evidence was denied. Since the judgment was predicated on a plea of guilty, under New York practice, the only issue litigated on appeal, both at the Intermediate State Appellate Court and to the to New York Court of Appeals was whether the appellant’s Fourth Amendment rights were violated because of the manner in which the evidence against him was obtained. No majority opinion was written in this case. However, the dissenting opinion and the New York Court of Appeals amendment to its (Inaudible) indicate that in affirming the judgment of conviction, the New York Court of Appeals considered appellant’s contention, that Section 188 of the New York Code of Criminal Procedure was unconstitutional and found “That the statute does not authorize an unreasonable search and seizure” and that in this case there was no denial of the defendant’s, appellant’s constitutional rights. Briefly Your Honor the pertinent facts adduced at the hearing on the motion to stress were as follows. Patrolman Martin testified that while in uniform, he observed the appellant for a period of eight hours standing on the street. The officer had no information concerning the appellant. During the prior period of his observation appellant was seen conversing to six -- with six or eight known drug addicts. The officer explicitly testified that he did not overhear any of the conversation. No money passed during the entire period of any – of these observations, nor did any narcotics passed. The officer then observed the appellant enter a restaurant, sit down, order coffee and pie and converse with another three -- three different addicts. Again the officer did not overhear any of the conversation. The officer entered the restaurant, went over to the appellant and told him to please come outside with him. Appellant complied with the officer's request and what transpired then can be best summarized at page 16 of the record and I quote, “I said meaning patrolman Martin, you know what I am after? Appellant, he, meaning appellant reached into his pocket and he held something into his hand, at the same time I went into his pocket. A metal tin foil wrapper containing narcotics was seized.” It is noteworthy Your Honor that the officer in his sworn complaint stated that appellant did put his hand in his left jacket pocket and pulled out a tin foiled envelope and did attempt to throw the same to the ground. The following question was also asked to the officer. You didn't think, when you reached into his pocket, you didn't think he was reaching for a weapon. Answer “I thought he might have been.” Appellant testified Your Honor that he was talking with these known drug addicts about narcotic people. He also testified that when the officer came over to him and asked him to come and he accompanied the officer outside, the officer stated to him you know what I am after, appellant replied no, the officer then searched him. At the conclusion of the testimony defense counsel moved to suppress the evidence on the ground that the officer did not have probable cause to believe a crime was committed. Initially the Court was disposed to grant the motion. The Court reminded the District Attorney that the officer didn't overhear any of the conversations and the appellant could have been talking about the Cassius Clay fight with these non-drug addicts. The officer refused the -- excuse me refused to find that appellant consented to the search. The District Attorney didn't pursue any theory of abandonment. However the District Attorney reminded the Court that appellant at the suppression hearing admitted that he was talking about narcotics. Defense counsel objected on the ground that this totally irrelevant because the officer explicitly testified that he did not overhear any of the conversations, nonetheless the Court found that the officer's action was predicated on probably cause and denied defendant's motion to suppress. At the appellate term level the People abandoned the theory of probable cause and instead argued that the denial of the motion to suppress could be justified under Section 180 (a) of the Code of Criminal Procedure. The appellate term affirmed without opinion. In the Court of Appeals, the appellant argued that the statute was unconstitutional on it's face, because it authorized a stop and search on a standard of less than probable cause and even assuming that the statute was constitutional and inapplicable to the facts of this case, because in this case the officer didn't have reasonable suspicion to believe a crime was committed more than he had reasonable suspicion to believe that he was in danger of life or limb. The Court of Appeals affirmed, two Justices dissenting. Your Honor -- Your Honors, I would like to discuss here now exactly the powers that the police have under this statute, the conduct that is authorized. Judge Keating writing in a majority opinion in People v. Peters stated that under vast analysis it is not the language employed that counts, but it's the conduct that is authorized. We wholeheartedly agree, we must look to way the Court of Appeals has construed this statute. However, before we deal with what we consider --
Justice Bernnan: Would you tell me Mr. Finkel -- I know that's in state but -- that district attorney confessed his error to --
Kalman Finkel: Yes, Your Honor, however we --
Justice Bernnan: Do we have -- should we reach the constitutionality of this statute and face that?
Kalman Finkel: I think you should Your --
Justice Bernnan: [Inaudible]
Kalman Finkel: Yeah I think you should Your Honor.
Justice Bernnan: Why, why?
Kalman Finkel: Well because this statute Your Honor --
Justice Bernnan: [Inaudible] ordinarily the confessions of errors ordinarily be simply released?
Kalman Finkel: Yes Your Honor, but this case is different and the reason it is different Your Honor, this statue is broad, we concede that -- we think it's board --
Justice Bernnan: Why you don't want to reach any question under the statute at all?
Kalman Finkel: Because the construction given to the statute without this case -- there was no construction given to this statute. This statute is different than any other statute. Ordinarily this Court can just as applied reverse the conviction, but here you shouldn't do this for the following reason. Number one, this statue on its face is a radical departure from existing standards. There is no case --
Justice Bernnan: But this may all be true, that was it, but why should we do -- deal with something like this in the constitutional area when the question of error -- conviction.
Byron R. White: Don't we have Peters anyway?
Kalman Finkel: I'm sorry?
Byron R. White: Do we have the question posed in the other New York case anyway?
Kalman Finkel: You have the question posed in the other cases Your Honor and the confession in error in my understanding is this Court's decision United States v. Young and (Inaudible) versus United States, that this Court is not necessarily bound by a confession of error they will make their own independent review of the facts and therefore I feel that title had discussed the construction of the statute.
Thurgood Marshall: Well suppose we find, one that he did not have reasonable grounds to stop it and two he most certainly didn't have any ground to frisk him, it was based on that?
Kalman Finkel: You can, but I think that this particular case, Sibron will show the over breadth of this statute and therefore the whole statute should go with it.
Justice Bernnan: What you want us to do is declare the statute unconstitutional, you don't care how he comes out of it?[Laughter]
Kalman Finkel: Right, it's true Your Honor, but if I was assured that this Court would rely on the confession of error and my conviction would be reversed, I would stop arguing, but I'm not assured that this Court is bound by the District Attorney's confession of error.
Earl Warren: I suppose on the other hand if -- would like to have us reverse this case regardless of how he comes out?[Laughter]
Kalman Finkel: Yes, yes Your Honor and we are arguing alternative grounds for reversal. We are not only relying upon the special Judge --
Speaker: [Inaudible]
Kalman Finkel: Your Honors before I deal with reconsider, the proper construction of this statute by the highest court of the State, I would like to say a few words about the District Attorney's brief and other amicus briefs. Your Honors the Districts Attorneys are -- what they're coming here and they're telling you to forget either what New York has done and instead rely on some hypothetical situation that they are going to set up sometime to cite this case is -- this case as if there was only an abstract statute, as if they're coming here under the declaratory judgment instead of looking to the actual construction given this statute by the New York Court of Appeals. For instance let me -- the District Attorney of Kings County emphasizes in his brief at page nine that this statue grants no power to detain and therefore the issue of detention is not present in the case at bar. The New York County District Attorney talks in terms of a brief detention. The Attorney General of New York talks in terms of a minor intrusion. The Solicitor General is not speaking about this particular statute, but about stop and frisk in general, talks in terms of a limited detention for the purpose of questioning. Your Honors, if the -- we concede right here now that the police have a right to stop someone provided noncoercive, nonforcible and the man knows he's free to leave, but that's not what New York has done. There are basically Your Honor five cases in this area. Two of the cases People v. -- decided about Court of Appeals, two of the cases People v. Pugach and People v. Rivera are pre-statutory vintage. However, the Court of Appeals in construing the statute relies on those cases and we will discuss five cases as total --
Hugo L. Black: What did you say you concede that --?
Kalman Finkel: I concede that the police have a right to stop someone on less than probable cause provided it's a nonforcible, noncoercive stop and the man knows or a reasonable man and this defendants place with no, that he -- he does not have to answer the question and that he is free to leave. I will even go further and say you don't even need reasonable suspicion for that.
Hugo L. Black: Don't even what?
Kalman Finkel: You don't even have to have reasonable suspicion to do that that officer has that right, but that's not what New York --
Abe Fortas: You don't have to be a policeman to do that, do you?
Kalman Finkel: I'm sorry.
Abe Fortas: You don't have to be a policeman to do that, do you?
Kalman Finkel: Correct. In People v. Peters Your Honors, the Court of Appeals sanctioned --
Thurgood Marshall: Mr. Finkel.
Kalman Finkel: Yeah.
Thurgood Marshall: Do you think that if a ordinary citizen is stopped at night but nobody on the street but him and the policeman who is armed, that he is know that he's free to walk away?
Kalman Finkel: No, Your Honor I don't I --
Thurgood Marshall: Well, that's what you've said.
Kalman Finkel: Well, I said provided a reasonable man in his place, a reasonable man in his place here would think he is not free to leave. Provided a reasonable man in this defendant place would think that he is free to leave stopped late at night by a policeman armed, it's unclear, and it depends on interpretation but in those situation it's possible that the man would not think, a reasonable man would not think he's free to leave and therefore that would not be permitted under my definition of without probable cause.
Thurgood Marshall: I hope there's no different for you and I the reasonableness?
Earl Warren: Simply because decide all these hypotheticals when we have a, when we have a case here, the facts clearly before us and the question is whether the conviction is to view course to whether it isn't that I understand of Mr. Terry confesses error on why should we have to deal with all these hypotheticals in this case it may, there will be that in another cases we're going to have to do this, I wouldn't doubt that, but in this case why should we have to hear all of this, why don't you hear with the other side going to say and if they don't get your man off then you might have another situation, but they're going to, they're going to let you win the case through their confession of error, it's hard for me to see why we should take the time to argue the rest of this, in this case, now there are three cases here maybe in some of the others but they don't confess error, they might have a different situation.
Kalman Finkel: Well, number one, Your Honor, because this Court has said that they could still make an independent, I'm agreeing to the facts and I'm not bound by the stipulation --
Earl Warren: Would you speak a little louder, its hard for me to hear.
Kalman Finkel: I'm sorry, this Court still stated that they must make and this is in (Inaudible) versus United States, they can make an independent inquiry and they won't be bound by the stipulations of the body.
William O. Douglas: What we do is we look at the record to determine whether the facts of record has sustained a confession of error?
Kalman Finkel: Yeah, but Your Honor this case, we deem this case is, the confession of error in this just indicates to us the overreaching of the statute. To us this statute is far broader than in the Burgett situation where this Court reached out -- this Court decided that the statute was unconstitutional because in Burgett for instance, the officer's action is still motivated upon probable cause. True there was a magistrate involved in the Burgett situation yet this Court summarized the entire statute and didn't just applied to the facts of an individual case. Here too, Your Honor, I know we will gladly settle for the reversal, but we feel that that the District Attorney or this difficult constitutional issue cannot be avoided by the District Attorney's confession of error on this case.
Thurgood Marshall: Mr. Finkel would it satisfy you if we said that under the facts in this case, we find that this case should be reversed because this is not a stop and frisk case as such and because of what the State has said and for that reason we reverse and another thing we also declare the statute unconstitutional?
Kalman Finkel: That would definitely satisfy me Your Honor. [Laughter]I didn't satisfy with the first point Your Honor its the reverse --
Earl Warren: Would you be satisfied with others?
Kalman Finkel: I'm definitely will be satisfied with the other but I'm, but I'm not certain that this Court – I am still uncertain that this Court is bound or will give credence to the confession of error. And in your own independent review of facts you might come to a different conclusion, therefore I feel that I must argue the entire statute and its application. And the District Attorney is, what he's trying to do is just the divorce the facts Your Honor of this case in the statute, divorce the facts of Pugach from, People v. Pugach from the statute, divorce the facts of Peters case because not his case and you left the statute in the vacuum and that's not the way this Court decides in my reading of the constitutional issues. They always look to the construction given by the higher State Court and I'm now going into that construction what we deem to be the construction given by the highest State Court. In Peters, for instance, Your Honor the officer had the power to draw his gun on Peters and to grab him by the shirt collar and People v. Taggart relying on anonymous phone call the officer had the power to go immediately to Taggart, grab him by the arm and reach into his pocket. In People v. Pugach the Court gave the police the power to move Pugach from the building into a police car and in this case Your Honor the officer had the power to remove Sibron who was in a restaurant and ask him to accompany him outside. Your Honor we say that the Court of Appeals has sanctioned under the definition of stop, to use of force, the laying of the hands upon individual and then removing him from one place to another including a police car. This Your Honor, this Your Honor is a seizure of the person prohibited unless than probable cause. Applying our standard whether the man is free to leave, it's quite clear that none of these defendants were free to leave. The officer in this particular case was looking for something. He stated, you know, what I'm after, you know, what I'm looking for he would not have allowed Sibron to leave. Sibron's movement was completely restrained. We read Your Honor that the history, the seizure part of the, the history of the Fourth Amendment and the decisions of this Court particularly the Brinegar decision, the Henry decision and the Rios decision are standing for the proposition that these types of restrains are prohibited unless than probable cause. Yet the Court of Appeals in this case has sanctioned this very procedure on a standard less than probable cause.
Earl Warren: Mr. Finkel may I ask you at the trial of the case is that, if the police rely on this statute under right, under this statute –-
Kalman Finkel: No.
Earl Warren: – to search this man or did they content that they had probable cause.
Kalman Finkel: They contented that they had probable cause.
Earl Warren: And they didn't and it was raised in the trial court.
Kalman Finkel: It wasn't raised in the trial court but our Intermediate Appellate Court has the right to review both law and facts and there it was raised and they affirmed.
Earl Warren: But the Court didn't put it on the basis, they put on the basis did they not put, the police had probable cause?
Kalman Finkel: Well, in the Appellate Court, Your Honor, the district attorney confessed error there was no problem. Of course he argued instead that the search can only be sustained under Section 180 of the code and in the Court of Appeals likewise he argued that and it's clear from the dissenting opinions of Justice Van Voorhis and Justice Fuld that no one, everyone is in the agreement that there was no probable cause in this case.
Earl Warren: Yeah, I understand even in the State [Inaudible]
Kalman Finkel: Well, they go much further they said there wasn't even reasonable suspicion.
Earl Warren: What?
Kalman Finkel: That they're willing to say that there was even reasonable suspicion in this case. With respect Your Honors to the power to search under this statute it is no longer open question that the word search in this statute means search. In People v. Taggart where the Court of Appeals summed up what they had said in all the other previous cases, they said that what occurred in Pugach, what occurred in Taggart, what occurred in Sibron were oral searches and not frisks. They've gone far beyond that limited pre-statutory holding in Rivera with a limited search to a frisk, a patting of the outer clothing. Here they say that they are talking about search and they mean search. So what emerges Your Honor with respect to the rights of the policeman is quite simple. They have the same powers that they ordinarily would only have under probably cause, the power to cease someone and the power to search for evidence and introduce that evidence whatever they found, whether gun or any other put into criminal prosecution on a standard of less than probable cause. Now Your honor I'd like to turn to that standard. The standard is reasonable suspicion. Reasonable suspicion is used in two separate contexts with the same definition; reasonable suspicion to believe a crime is or will be committed and reasonable suspicion to believe that the officer is in danger of life or limb. The Court of Appeals has defined reasonable suspicion as follows and I quote from the Peter's opinion, “Probably cause requires satisfactory grounds for believing that a crime was committed while reasonable suspicion requires satisfactory grounds for suspecting that a crime was committed.” The difference between these two standards is proportionate to the difference and degree of invasion between an arrest and a detention between a full search and a frisk. The court went on to state that the standard incorporates “The experienced police officer intuitive knowledge and appraisal of appearances of criminal activity. His evaluation of the various factors involve, ensures a protective as well as definitive standing.” Your Honors, one is immediately struck by two aspects in this quote. Number one, the Court of Appeals in Taggart, a subsequent decision acknowledged that there is no distinction between a full search and a frisk. They have acknowledged that this statute gives the right to search. Secondly with rather striking Your honor is the fact that it is the officer's evaluation, his intuitive knowledge that has given primary emphasis, very subjective and I say Your Honors let us turn to the facts of this case and now we can see how subjective the reasonable suspicion standard is. In this case basically the most that the officer heard was or most of the officer observed was not overheard conversation between appellant, a man whom he had never seen and various drug addicts. Yet the court was willing to say that that was reasonable suspicion, the officers there had reasonable suspicion to believe appellant is committing a crime. You don't have to prophesize to be able to do that in any case where the officer was so and has a record, where he has information or where he knows he is a drug addict any of these people, if they are sitting in a restaurant of course the officer would have reasonable suspicion to remove those people from the restaurant on to the street. Likewise Your honor in Rivera great reliance is placed on high crime rate and the lateness of the evening. In that case Your honor anyone walking down the street late at night is possibly reasonably suspect. Now the district attorney says, agreed that in this particular case the officer did not have reasonable suspicion. However, he does say one thing. He says the Court of Appeals in Taggart had second thoughts about this case and it had this case come to the court subsequent to Taggart, the Court of Appeals might have reversed this decision. Your Honor, with all due difference to Mr. Siegel this procedure he has completely misread the Court of Appeals decision in the Taggart case. Number one in Taggart, the Court of Appeals mentioned that Sibron was a case involving reasonable suspicion and adopted the reasoning of that case. The district attorney on page 46 of his brief relies on this Court from the Court's opinion in Taggart to sustain his proposition, “Needless to add the serious problem is suggested only in cases involving serious personal injury or grave irreparable property damage and not by the problems associated with the enforcement of certiorari laws such as narcotics violation.” However, the District Attorney forgot to read the previous paragraph which states, “There are exigencies affecting life, limb, or great property damage in which the police receive information of crime and not sufficient to establish probable cause, but on which they must act. But the Court of Appeals meant in Taggart Your Honor quite simply is this. Where the police receive an anonymous phone call that a man is engaged in violating the narcotics law, they can go over to him and immediately grab him by the arm and search him. However where they receive a anonymous information that a man has a gun in his pocket, they can't do that, but nowhere did the Court of Appeals in Taggart intimate that what the officer observed in this case the non-overheard conversation between Sibron and these known drug addicts was something less that probable cause. Your Honors, I am going to conclude my part of the argument with, I think I've attempted to show where this statue is vulnerable to constitutional attack on many grounds and I am leaving Your Honor for Mrs. Oberman will discuss what I consider the great vice of this statue and that is with the second context of reasonable suspicion, reasonable suspicion to believe that the officer is in danger of life or limb. There Your Honor, I just want to briefly state that we maintain that there was a -- it is a total judicial adjudication to the judgment of the police, thank you.
Earl Warren: Mrs. Oberman.
Gretchen White Oberman: Mr. Chief Justice may it please the Court. I might find myself with even less to say than Mr. Finkel if the District Attorney's concession in this case disposes of it altogether, but I don't think the case is that simple. First of all we have two prongs of attack in our brief. We argue that the statute is unconstitutional on its face and we have also argued that the statute has become unconstitutional or is unconstitutional insofar as has been applied to this case. Now the District Attorney's consent goes only for the second point. So that if this Court were to decided that this statute is constitutional then what this Court be prepared to say that New York has misinterpreted its own statute. Who speaks better for New York State as to what situations this statute applies to? The District Attorney for Kings County who is one District Attorney for one County or the New York Court of Appeals. How can this --?
Justice Bernnan: I think Mrs. Oberman is there is a procedure by which after the affirmance from the Court of Appeals, District Attorney could have gotten somewhere and said well we don't agree with the Court of Appeals, and wipe of the slate?
Gretchen White Oberman: He said it in the newspaper but that's, I think but that's --
Justice Bernnan: But is there any procedure by which --
Gretchen White Oberman: I don't not that I am really aware of. We have -- am I wrong. Well perhaps Mr. Siegel has better answer because so far as motion for re-argument--
Justice Bernnan: Then why he didn't do it?
Gretchen White Oberman: The motion for re-argument in the Court of Appeals I suppose he couldn't have made that?
Byron R. White: But he even that the -- even if we deal with verbatim by the Court of Appeals is that, what situation is the statute [Inaudible] that doesn't mean that there have been a breach to constitutionality of the statute rather than other state. It still means that it still must, just as applied in this case it might be, held to be unconstitutional, just like an ordinary search and seizure case where the state affirms a conviction in which there is a claim we then have to claim it illegal search, we don't even have that, and we agree with it we don't declare the statute authorizes the search [Inaudible]
Gretchen White Oberman: That's true Your Honor but --
Byron R. White: Even though we are bound by the higher State of board to believe their statute does apply to these facts?
Gretchen White Oberman: But still if we were to rest solely on the district attorney concession that the statue does not apply to this case, I think that we run a great risk because if the Court ultimately holds that the statute is constitutional then you could disagree with the District Attorney because I recall that in one decision this Court said that criminal law can't be made upon the stipulations of the parties, that the Court has to make an independent appraisal and -- determination.
Byron R. White: It doesn't matter, it doesn't mean the reason [Inaudible]
Gretchen White Oberman: Well in fact I have --
Byron R. White: I hope so I can do it then.
Gretchen White Oberman: – very little to say here Your Honor if nothing else, I would rest on the fact that this case has been called a run-of-the-mill case and for that reason perhaps it would be better to hear argument in terms of a run-of-the-mill case, because I really do believe that this is the sort of case, the statute is aimed at. Now in speaking about the statute I would like to highlight very briefly some of the major difficulties that we have found with Section 188. First of all there is a variance between the face the statute, the words of the Court decisions and the facts of the cases. So that in order to determine what the statute permits the police to do, you have to look at it simultaneously on three levels. What does a statute say, what does the Court say and what does the conduct and those three levels never come together unless you are willing to take a step through the looking glass into that lonely never, never land where as humpty dumpty said, when I use the word it means what I choose it to mean no more no less. I think that this is very apparent when you look at the statute and see the variance between stop, explanation of actions the face of the statute. The Court of Appeals has said this is the limited intrusion of asking one for an explanation to his actions and then what the policeman have done in making this stop limited intrusion. In Peters, the companion case to this one the policeman to make this limited intrusion took the defendant by the shirt collar and pointed a gun against his stomach. That was the limited intrusion of asking one for an explanation of his actions. This statute creates virtually a never, never land where if you look at it just on the level of what it purports to be without looking how it operates in the world, you can't, you can't get any meaning from it and perhaps this is why in terms of the statute like this you can't look at the face merely without looking into decisions and why you couldn't look at the face of the statute without looking at Sibron. The second problem as Mr. Finkel has pointed out is what does the standard mean? When does the statute permit the police to exercise the powers that it gives them and I think that we have shown you in our brief that the statute curtails the policeman's power or the standard curtails the policeman's power only when the citizen's conduct is perfectly normal. It sets up a range that can trigger police conduct or a range of citizen action that can trigger police conduct. Anything less than certainty, until perfectly normal because when you look at the, when you focus upon the intuition of the experienced police officer and upon his appraisal of the appearances of criminality then anything that's not perfectly normal is reasonably suspect. The third major difficulty with the statute is that it's a break with precedent and I think that this is acknowledged because police powers in the area of criminal law enforcement have traditionally -- of this sort have traditionally been only granted upon probable cause. Now the departure from --
Potter Stewart: As a matter practice, this isn't break of the precedent is it, had a policeman in New York City been doing those kind of things [Inaudible] and the question never really arose until Mapp against Ohio, because New York did not have a exclusionary rule and now because of Mapp against Ohio is does but this so far is police practices in a big city are concerned this statute merely reflects the precedent of trial of practical conduct.
Gretchen White Oberman: I think we are talking about two different precedents Your Honor because yes the precedent of the streets supports this statute --
Potter Stewart: And why not the precedents in New York, because New York didn't have an exclusionary rule.
Gretchen White Oberman: But there is a precedent in the constitution and that's the precedent --
Potter Stewart: And of course, we are concerned with.
Gretchen White Oberman: But that's the precedent that has been broken with.
Potter Stewart: And of course Mapp against Ohio broke with a previous constitutional precedent as well, I wrote against Colorado precedents?
Gretchen White Oberman: I don't think that Mapp broke with that precedent, Mapp just was a recognition that --
Potter Stewart: Not a ruling?
Gretchen White Oberman: That, no that rule was an unrealistic decision that you couldn't say we can have the Fourth Amendment on the 4th of July when the orators want to come up and talk about it, but we can let a different kind of precedent develop on the streets that's what the rule permitted and if Mapp broke with any kind of precedent then it broke with the precedent of letting morality rein in the halls of justice and police practice rein in the streets of the cities.
Thurgood Marshall: What constitution provision is violated by a policeman stopping a citizen temporarily and asking for his name?
Gretchen White Oberman: Your Honor, I would have to know how that stop was made.
Thurgood Marshall: The policeman is standing out in front of this building at this time of day and the citizen who happened to be a Congressman in United States comes by and the policeman says, “Excuse me, what is your name?”
Gretchen White Oberman: There is -- I don't see anything wrong with that, and I don't think that --
Thurgood Marshall: What is that this statute breaks precedent of?
Gretchen White Oberman: Well first of all this statute is not directed to kind of situation. This is the deceptive labeling part of the statute. They might say that its directed to this kind of situation but its not because you don't need a statute for that. What the statute, the power of the statute purports to give to the policeman or does give to the policeman in that kind of situation is after the policeman says, “Excuse me sir, what is your name?” And the man doesn't stop or then the policeman can collar him and hold him and then say again, “What is your name?” It's not the power to question that is being given in this statute, it's the power --
Thurgood Marshall: [Inaudible]
Gretchen White Oberman: Not --
Thurgood Marshall: Yes or no.
Gretchen White Oberman: No, not physically no, but there was a submission to authority in the sense of the -- that the -- I beg your pardon?
Thurgood Marshall: [Inaudible]
Gretchen White Oberman: Well it didn't quite happen that way Your Honor because Sibron was in a restaurant sitting down and the officer goes into the restaurant and says, “Come outside with me.”
Thurgood Marshall: What did he say?
Gretchen White Oberman: If Sibron had just --
Thurgood Marshall: [Inaudible]
Gretchen White Oberman: I don't think that he could under this statute.
Thurgood Marshall: What in the statute says that an officer could take him out physically?
Gretchen White Oberman: Well in the Peters case for instance --
Thurgood Marshall: I am talking about statute.
Gretchen White Oberman: Well I think you can't talk about the statute without talking about the cases because the words don't mean anything in the statute unless you are willing --
Thurgood Marshall: Instead of asking us to declare unconstitutional this statute, which statute where its [Inaudible]
Gretchen White Oberman: I think maybe one of the reasons that ought to be declared unconstitutional is when you look at it nobody can tell what it means.
Abe Fortas: Mrs. Oberman may I ask you, what you consider to be the basis of the district attorney's confession of error, why does he confess error, as you read the brief?
Gretchen White Oberman: I don't think I can answer for the District attorney Your Honor --
Abe Fortas: I know you can't but how do you read the, read the brief, do you read it as a confession of error based upon the proposition that this was a search not permitted either by the statute or the New York Court of Appeals decisions that it says, search or frisk or do you read it as indicating a confession of error because the District Attorney believes there was not reasonable grounds for the policeman's action within the meaning of the statute.
Gretchen White Oberman: I believe the on reflection the second reason that there was not reasonable suspicion either to think that the man was about to committing, have committed a crime and that the movement towards the pocket wasn't a -- didn't rise to the level of reasonable suspicion of danger, but of course the Court of Appeals felt that it did. We didn't put anything over on the Court of Appeals in this case. We argued this very thing in the Court of Appeals, that if you are going to hold this statute constitutional, then do not apply it to this case because talking to narcotics addicts cannot be reasonably suspect, it just can't be reasonably suspect conduct and reaching the hand into one's pocket in response to an officer saying, “You know what I'm looking for,” can't be -- can't give the officer reasonable suspicion that he is in danger life or limb. If you read the statute this way, then you are either diluting yourself or you're trying to find a way out of that.
Byron R. White: Well didn't the [Inaudible] also think the Taggart or some later case, the statute has been limited so as not to cover narcotics offenses at all?
Gretchen White Oberman: No Your Honor, I think with all deference to Mr. Siegel, who has my --
Byron R. White: But I didn't ask that.
Gretchen White Oberman: -- respect, he has said this is not the Taggart decision.
Byron R. White: I didn't ask you about whether it was Taggart [Inaudible] he did it, but is that his suggestion.
Gretchen White Oberman: That's his suggestion, but I --
Byron R. White: That's what I wanted to know.
Gretchen White Oberman: Yes. I don't think that that's correct and the reason is that Taggart was a particular set of circumstances. Taggart involved an anonymous phone call.
Byron R. White: Well if related cases to this one in the Court of Appeals has put a construction on this statute, either that is different than the construction put on this case, we should pay attention to the later cases, not this.
Gretchen White Oberman: Oh we want you to pay attention to Taggart Your Honor, because --
Byron R. White: Are there any other later cases that are relevant?
Gretchen White Oberman: None that I'm aware of.
Byron R. White: Was Peters before Sibron?
Gretchen White Oberman: Peters and Sibron came together.
Byron R. White: Together, and then only Taggart --
Gretchen White Oberman: Then only Taggart after that, but yet in Taggart the Court of Appeals cites Sibron for the purpose that in the non-anonymous phone call situation, where the officer makes street observation, that the street observations made in Sibron are sufficient to give him reasonable suspicion. So that the Court of Appeals has made a distinction between Taggart and Sibron. An anonymous phone call might not be enough to give reasonable suspicion if there is a phone call saying well Sibron is peddling narcotics on such and such a corner, but if the officer has observed Sibron doing the things that this officer observed Sibron doing, then under the authority of Sibron he can act pursuant to 180 (A) of the Code of Criminal Procedure. Now when I had talked about a break with (Inaudible), the break becomes very apparent when you look at the justifications that the proponents of the statute have advanced to support it. I mean, everyone is in agreement that if this were a statute, on its face authorizing arrest, search, that it would be unconstitutional. But they say, well this statute authorizes something less than arrest and therefore we can make the standard something less than probable cause. Now that's wonderland, because unless you're willing to go into this -- to go through the looking glass really and to say the words of this statute mean no more, no less than these words, you just -- you can't accept that rationalization because what happened in Peters was not less than an arrest. It was tantamount to an arrest and then, even the justification that's advanced is no longer support for the such part of the statute, because before Taggart at any rate, the depiction was relied upon in the language of the cases that this statute authorized something less than a search even though on it's face it said search, it authorized a frisk, a lesser indignity than a search. But in Taggart, the officer conducted a search and to find authority for sustaining that activity, the Court of Appeals went back to all its prior cases and said in all of those cases, expect People against Rivera, what the officer did was to engage in the search, and therefore we said before that the officer -- if we sanctioned those searches before, we can sanction those searches now. So that this lesser than rationale just doesn't hold water analytically, because the powers that the statute gives are not lesser than the traditional powers, they are the same powers and when you give the same powers, you can't give them on a lesser standard.
Byron R. White: Do you think that [Inaudible]
Gretchen White Oberman: Yes.
Byron R. White: [Inaudible] when one has some fear of bodily harm [Inaudible] to determine, there's any crime committed?
Gretchen White Oberman: No the fear of bodily harm comes because the answer to any question maybe a bullet. I mean even though --
Byron R. White: I understand that [Inaudible]
Gretchen White Oberman: Of what has to be done first, the search or the frisk? Well, I don't think it makes much difference because I personally would much rather have somebody reach into my pocket and take something out of, than start running their hands from my neck to my chest, to my waist, to my hips, to my groin, to my legs, to my cuffs and that's a frisk.
Byron R. White: Do you think the Court of Appeals would say you may go ahead and search [Inaudible]
Gretchen White Oberman: I think that the Court of Appeals has said that, yes. Now there is also a second justification that is advanced for this statute, recognizing that it is a break from precedent and this justification runs a little bit different course. The proponents say -- well the purpose of the search provision of this statute is to give the officer a right to protect himself and therefore if you're giving merely the right to the officer to protect himself, we can let him to do it on something less than probable cause. Well this rationalization doesn't hold up analytically either, because the statute goes beyond this protected purpose, permits the officer to seize any item possessed illegally upon the person of the individual searched. It can be then used into -- put into evidence in a criminal case. So the statute doesn't only have a protected purpose, it has a two-fold purpose, protection and evidence gathering. Once you go on beyond merely giving the officer the right to protect himself, and give him the right to gather evidence, then this is a search for the purpose of gathering evidence and you can't give it on anything less than probable cause. The Camara case or the cases of Camara and See are the cases that have been cited in connection with this kind of rationalization. But they just, -- in comparison they don't holdup because this statute goes beyond protection. It really employs an overkill in reaching its target. If you wanted to let a police officer protect himself in those situations where he is in heart felt need of self-protection, you could let him make the search or the frisk or whatever and say he won't be prosecuted, civilly he won't reprimanded administratively but don't have to -- but you can't then say just because he made it for self-protection you have to let the evidence come in.
Abe Fortas: Is there anything in this wording of the statute or in the New York cases, this Court as I understood you say, which is that the person's stop on the street by the policeman has to remain and answer his questions?
Gretchen White Oberman: The statute says that the officer can stop him and demand an explanation of his – his name, address and an explanation of his actions. Now, demand is a different palaver of word.
Abe Fortas: I know but statute does not say that it will be unlawful for the person to define, to cooperate with the officer.
Gretchen White Oberman: Not this statute Your Honor. But --
Abe Fortas: Has there ever been a prosecution of a person for leaving the officer's presence?
Gretchen White Oberman: Yes Your Honor because now we have a new statute that's a loitering statute, which after September 1, 1967 makes it a crime for anyone to fail to give a reasonable explanation to an officer who stops him and we have --
Abe Fortas: But what about this statute?
Gretchen White Oberman: I beg your pardon.
Abe Fortas: Has there been such a prosecution under this statute?
Gretchen White Oberman: Not under this statute but there have been prosecutions under this --
Abe Fortas: [Inaudible] There never is a reason not a problem for right now and -- so your -- I'm trying to get the basis for your construction of the statute, if a statute may legal or anything in conclusion if it's construed as nothing more than an authorization of a policeman presumably and protect him against civil liability for stopping and frisking and making the demand [Inaudible] and we make them to one, one might get to one conclusion upon construed the statute as merely an authorization to the policeman, one might conceivably reach the conclusion if one read the statute as imposing upon the citizen a duty to respond to policeman. I'm not saying that I would, but I said theoretically there are those two possibilities. I'm trying to find out if you have any basis other than the word “demand” for the item that you're making last, it's in the later category.
Gretchen White Oberman: The, so far as the stop provision of the statute, there is, no – well, it's fairly unclear because it really hasn't been construed yet. There are problems that's in here, in the very fabric of it but the search provision of the statute and the point that I was trying to make before was it when you look at the search, it's not merely a protective search because it also in permitting the officer to gather any evidence he finds upon the body of the individual he is protecting himself against and taking that evidence and giving it to the prosecution can use in a criminal case, the statute also affirmatively authorizes the officer to get to engage in evidence gathering. This kind of activity, this kind of power has never been given heretofore without probable cause. So that in that aspect on it face, the statute I think is unconstitutional.
Abe Fortas: It seems to me that perhaps facts of this case, there's a special or narrow issue under the statute. The statute does purport so many words, authorize the officer after he's made the stop and the frisk or search. If he finds a weapon or any other thing in the possession of which may constitute a crime, he's authorized by statute to take it and keep it. In this particular case the officer found an envelope containing narcotics and so he kept it, and it seems to me the matter of facts in this case for anything just that narrow issue and don't raise the question of one of the consequence is that the officer frisk the person, came across a gun and took the gun away from him. Do you see any difference between those two?
Gretchen White Oberman: I don't see any difference between --
Abe Fortas: You think those two situations raise the same constitutional problem?
Gretchen White Oberman: I think that they raise exactly the same constitutional problem.
Potter Stewart: I -- is this at least a possible argument that you may distinguish two cases posed to you by my brother Fortas. The only justification as I understand it, offered, the only rational justification offered for the granting a policeman of this power to pat down or frisk somebody is for a) the defense of the policeman himself and b) I suppose the defense of community from dangerous people armed with weapons, isn't that correct? Is that the rationale, isn't that the justification offered by one of this?
Gretchen White Oberman: No, Your Honor, this not gun control legislation.
Abe Fortas: Well, I thought it was safety from -- the policeman from being killed or wounded by an armed man or woman, isn't it?
Gretchen White Oberman: Yes. The purpose of the statute is to protect the officer; it's not a question of protecting the community.
Abe Fortas: Alright then the officer being or killed or wounded by an armed man or a woman or I suppose child. Well, if the statute were then limited to permitting the introduction of the use of weapons discovered as a result of such a pat down at least would I should think arguably tend to discourage abuse of the statute in order to find narcotics or stolen goods or other things that might be in the pockets of the citizenry walking in the streets of New York.
Gretchen White Oberman: Yes, Your Honor and this is what Judge Van Voorhis on our Court of Appeals --
Potter Stewart: Well, there is that much distinction in the two cases to put to you by Mr. Justice Fortas?
Gretchen White Oberman: There must – sure it is and Justice Van Voorhis who dissented in our case, dissented just exactly on this rationalization. We are letting the police officer do things in his almost unlimited discretion said Judge Van Voorhis let's confine it to the situation involving a gun and not get into these --
Potter Stewart: That would at least confine it to the only justification which is offered in support of this law, isn't it?
Gretchen White Oberman: But still I maintain that when you permit attacked gun to be used as evidence, you're no longer authorizing by statute merely a protective search. You're authorizing a protective search and an evidence gathering search and that once you authorize an evidence gathering search, the standard has to be probable cause.
Potter Stewart: Well, I said don't we have that little background, the reason for the exclusionary rule is to provide a sanction and a sanction that the court concluded experience had shown, was the only available sanction to enforce the constitutional right of the people to be secured in their houses [Inaudible]. The exclusionary rule didn't come first; the Fourth Amendment came first and the exclusionary rule came as a sanction. I mean now you're trying to make reverse, aren't you?
Gretchen White Oberman: Well we unhinge the exclusionary rule from the Fourth Amendment in other kinds of situations too because there are some illegal searches and seizures that result in the production of evidence that -- where this Court doesn't exclude evidence because the person had -- complaining has no standard to complain.
Potter Stewart: Exactly.
Gretchen White Oberman: We're unhinging it in a different --
Potter Stewart: Well also if you begin with the -- if you say that at least to the extent that a policeman is privileged to frisk somebody in order to protect that policeman's own life, then by definition, by hypothesis then this is not unlawful conduct and there is no reason for any exclusionary rule to prevent any unlawful conduct?
Gretchen White Oberman: We say it's not unreasonable in the terms of the heart. It's not unreasonable in the terms of the instinct. But it's unreasonable in the terms of the Constitution, because unreasonable in that context is a constitutional word of heart that has meant a search upon probable cause. The only search that is reasonable, the only search resulting in evidence that can be introduced in a criminal prosecution that is reasonable is a search made upon probable cause. I think that I have exhausted my time.
William I. Siegel: Mr. Chief Justice –
Earl Warren: Mr. Siegel.
William I. Siegel: -- may it please the Court. Before I develop my argument, if indeed I develop an argument; one, perhaps two and maybe three preliminary statements which I want to make. I want to make them because first I owe them to the Court and secondly I want to make them as a sort of apologia pro vita mia in this case, because this is a most unusual case by the District Attorney representing the people of the State of New York, comes into this Court to make a confession of error on the part of the highest court of the state. Mr. Justice Brennan said why didn't why didn't we do it before and I assure you that I find it personally very disagreeable to have to make this confession of error before this tribunal, because I have the highest regard for the judges of our Court of Appeals. I sustain a friendly, personal relationship with some of them and if it had been in the cards, so to speak, for me to have done it in Albany rather than in Washington, I would have been most pleased to do so.
Justice Bernnan: Well that's – but you can't go back now and say to the Court of Appeals you may have [Inaudible] conviction.
William I. Siegel: I know of no procedure which would have enabled me in the Court of Appeals to say what I am (Inaudible) saying to this court --
Justice Bernnan: But you should say that, you have to come and ask us to reverse about your confession of error?
William I. Siegel: That's correct, and I don't know I maybe wrong. In this case I'm in the unfortunate predicament of finding myself in disagreement with almost everybody. I disagree with [Laughter] I disagree the majority of the Court of Appeals. I disagree in some respects with Mr. Juviler to whom I have yielded 20 minutes of my time, as amicus representing the New York County District Attorney. Most regretfully I disagree with Mrs. Oberman, whose scholarship is equaled only by her charm and beauty. I am sorry that in this instance she seems to remember her Latin much better than she does her law. I have said in the utmost good faith that when this case was before the Court of First Instance, which by the way happens to be our lowest criminal court, which does not always keep up with the advanced sheets even in our state. When this case was before that court, it should -- the motion to suppress should have been granted in that court, because the case was not decided on the basis of the stop and frisk statute, it was decided on the basis of probable cause. I have said with the utmost sincerity that there wasn't even enough reasonable suspicion under the statute, much less probable cause under the Constitution. Unless Mrs. Oberman remembers quickly (Inaudible) she would give me credit, but there's – but apparently she's afraid that I'm a Greek bringing gifts from a wooden horse. I say --
Potter Stewart: But I don't understand it. Why it wasn't in the cards, to use your phrase, for you to make a position on the Court of Appeals?
William I. Siegel: -- humiliating confession. Ours is a large office and I am the head of the Appeals Bureau of a very large office and with the exception of the actual trial of cases, there is no phase of the work of my office, which is departmentalized, but which includes numbers almost 100 men I think, with which I don't at least in theory have something to do, whether it's question of validity of an indictment or anything, this funnels into me. I've got ten assistants; I have to deal with the criminal court. I have to deal with everything there is, and I don't just supervise Your Honors, I do some of the work and in fact a good part of the work. This was a run-of-the-mine case. Mrs. Oberman seemed to have found that somewhat objectionable, but I think it's very descriptive. This was the run-of-the-mine case, which came out of the lower criminal court. It never came to my attention until it was on the calendar so to speak of this Court. Had I known about it, in the appellant term I would have consented to a reversal. In the Court of Appeals, I would have consented to a reversal, because there just -- the case just doesn't even meet the requirements of the statute. There isn't reasonable ground. There wasn't reasonable ground to suspect that Sibron was committing a crime, because all the officer saw him to do was talk to people who the officer knew to be narcotics addicts, he knew noting about Sibron. Now a narcotic addict is not an outlaw. He can talk to anybody, and pari passu, anybody can talk to him. The same thing happened in Lasko. There is absent the first (Inaudible), which a condition precedent for the operation of the statute. The second element, the danger to the police officer I think was equally absent. The officer said, “You know what I want?” So Sibron responds to an invitation and he puts his hand in his pocket and as he does so this sort of pulls the pocket further apart and the officer sees a white metal or cellophane article. That's one aspect of it and simultaneously he puts his hand in there, that's another aspect. The third aspect is that the -- Sibron really was responding to the invitation of the officer, if you got anything in your pocket, give it to me. So I really honesty feel, always have felt and despite any information, I'm quite sincere always will be, that this case ought to be reversed.
Speaker: [Inaudible]
William I. Siegel: I don't know of such procedure Honor I --
Speaker: [Inaudible]
William I. Siegel: Well this should be been made by my adversary.
Speaker: [Inaudible]
William I. Siegel: And besides I had another problem. I first learned of it when it was here. Now this to me seemed to oust New York's Court of Appeals' jurisdiction at any moment.
Speaker: Well what if [Inaudible]
William I. Siegel: Oh I would pray that the direction implicitly on such a declamation, but I don't where I'd get.
Byron R. White: But what if we remanded it, what if we did take you to the judge and [Inaudible] remanded for a consideration of light of the confession of error [Inaudible]
William I. Siegel: May I ask reconsideration of what Your Honor? Judgment?
Byron R. White: Of the judgment.
William I. Siegel: If you did that, I'd go back to the Court of Appeals and say what I --
Byron R. White: Because after all they said that your -- well they take the position which you don't agree and so the key certainly is to move, is it?
William I. Siegel: This was the second possible statement I'd have to make. I have to --
Byron R. White: Really you don't move because unless we do something either the final judgment or the final conviction.
William I. Siegel: I call your attention to fact that Sibron has completely served his sentence and possibly [Laughter] under the late --[Laughter]
Byron R. White: You mean moot for another reason.
William I. Siegel: Under you late decision in Jacobs against New York, which was decided on June 12, 1967, it's moot for another reason. My major concern Your Honor --
Justice Bernnan: [Inaudible]
William I. Siegel: Yes.
Justice Bernnan: [Inaudible]
William I. Siegel: It was a misdemeanor in which I think he got 60 days and a suspended sentence. The Chief Justice decided Mr. Justice Douglas --
William O. Douglas: What was the sentence here?
William I. Siegel: Six months.
William O. Douglas: Has he serve it?
William I. Siegel: Yes, I have a certificate with me. He served four months, he gets ten days a month off, he served four months, but he was discharged --
William O. Douglas: [Inaudible]
William I. Siegel: If Your Honors rule as perhaps --
Abe Fortas: When did it become moot, after we granted the --?
William I. Siegel: Well it became moot --
William O. Douglas: We granted the petition in, October 1966, which was a little over a year ago.
William I. Siegel: Well he was sentenced to six months on -- he was sentenced to six months on April 23, 1965. So certainly six months after that, it would be moot.
William O. Douglas: But we don't know when he started serving the sentence.
William I. Siegel: Well unless there was a certificate of reasonable doubt, he'd start serving that same day. In my recollection Mrs. Oberman may be able to confirm that there was no certificate of reasonable doubt, so that within --
William O. Douglas: Well even so, our grant of certiorari on the 6th of October would be within the six months period.
William I. Siegel: That's right Your Honor.
Thurgood Marshall: Do you have any other [Inaudible][Laughter]
William I. Siegel: Well one thing –-
William O. Douglas: You said he's started to serve by July 8th 1955?
William I. Siegel: Yes.
William O. Douglas: Which means -- I thought you said '66.
William I. Siegel: No. On the record I'm giving Your Honors the date of the sentence shown by the record, which would be April 23, 1965. Now I have with me, if I may refer to it, there was the record, I have a certificate from the New York City Department of Correction dated and numbered. This is to verify that the following information is on record. Name Nelson Sibron, number, that is his penitentiary number, address, age. In custody from March 10, 1965 to July 8, 1965, original charge 1751, Section 33056 MOS, months, penitentiary remarks - in custody continuously, released by expiration of sentence. I see that singed and it bears not a seal, but the stamp with –-
Justice Bernnan: What's date on that release --? The date of the certificate?
Justice Bernnan: No, the date of the release, the release on service [Inaudible]
William I. Siegel: Released by expiration of sentence, which would mean that at the latest it would be six months from April 23rd, and it says in custody from 3/10/65 to 7/8 --
William O. Douglas: [Inaudible]
William I. Siegel: Well I don't know that, that has been included Your Honor. This man -- we don't have such document I know of to moot this. This man is entitled to have his record --
Byron R. White: But he certainly would have then released and served his sentence by the time we noted probable jurisdiction in this case long ago, if you follow [Inaudible]
William I. Siegel: Then Your Honor, I push ahead of the department, all I can say is [Inaudible]
Byron R. White: Did your office file a response to state the jurisdiction?
William I. Siegel: No. We did. Did we object?
Gretchen White Oberman: Yes.
Byron R. White: Did you – [Laughter] Did you make any suggestion to moot this with any kind?
William I. Siegel: Personally, no. I don't think my –- Now I'd like to ask the court a question if I may. I don't know --
William O. Douglas: May I ask you a question. Are there any civil disabilities that if a person who has served six months, suffer in New York as a result of --?
William I. Siegel: I can't think of any. He was sentenced as a multiple offender. I think under our narcotics statute it would make no difference how multiple he was the next time he came up, if he came up with that. As a multiple felony offender, the conviction would not count because it's a misdemeanor. So far as any lawsuit for citizenship, so long that terminates with the termination of his sentence, I cannot suggest that there's any distinction between this and the -- well the case I understand.
William O. Douglas: Suppose it might count against the -- he applied for a job with HEW or something --
William I. Siegel: He had plenty to count against him no doubt. His record, I think he was burglar and he had former narcotics convictions, he was not a nice person. Wherever [Laughter] he might be inclined to apply and his record would come into question, he had enough without this. Now may I please ask you a question? I don't know whether I'm considered as having argued on the merits or not. If I have not argued on the merits and the Court wants to hear me, I want to save 20 minutes for Mr. Juviler who comes from Mr. Hogan's office. If I am foreclosed by either mootness or any other consideration and my argument on the merits, I'd like to apply to be considered as amicus in the Peters case and I have the consent of Mr. Duggan who will argue for New York and I have the consent of Mr. Friedman, his adversary who will represent the defendant. So whether Your Honors will let me argue here, argue as amicus, and Mr. Duggan said he can use in time or merely consider my brief in Peters, at least I know that to the extent that I can at this moment, this late day, do something for the State of New York, I have done what I could.
Earl Warren: Mr. Siegel we have no objection to you arguing in the Peters case, provided it doesn't have any time to the argument.[Inaudible]
William I. Siegel: We both have the notion -- I do know procedurally if we are right or not, that if I am up, if this case is out for moot or for any reason Peters becomes the principal case and Mr. Duggan then has an hour, instead of half of an hour and if he has an hour, he is graciously consented to yield a half an hour to me. Would you let me do this Your Honors? I'll talk five minutes.
Earl Warren: Peters case is summary calender case –
William I. Siegel: Translated into a wrong --
Earl Warren: But we don't want to add any time to the argument. You have a little time from him, it's perfectly alright.
William I. Siegel: All right then. May I reserve such time as you will give me in the Peters case for the balance of my argument of this case?