Earl Warren: Number 18, William Beck, Petitioner, versus Ohio. Mr. Beck you may proceed with your argument.
James R. Willis: Mr. Willis.
Earl Warren: Beg your pardon, Mr. Willis? Oh yes, I beg your pardon.
James R. Willis: Mr. Chief Justice and Justices of the Supreme Court of the United States. The issues involved in this case are indeed most significant in view of some of the decisions in this Court, more specifically Mapp versus Ohio and Ker versus California. It is of course beyond dispute as has been said but that the Constitution does prohibit the use by state courts of evidence seized in violation of that instrument. Further, Ker, further begets the idea that the standards to be used are those that have been developed under the Fourth Amendment in cases decided in this Court. In the situation involving Mr. Beck, the evidence is very simple. The police officers testified that they had the information from an unnamed and undisclosed informer that William Beck was engaged in the violation of the statute which prohibited a numbers operation, this statute having various ramifications. The officer testified that they had received this information in the morning and that they left the police station for the purpose of arresting William Beck on sight.
Byron R. White: Did the officer testify that the informer also said or also suggested where the defendant would engage in the sense that he --?
James R. Willis: There's no specific evidence in the record which supports that notion. However, it is a fact that William Beck lived in the vicinity where he was arrested. And the information that the officer related and of course we did not go into that because of the Court's ruling which obviously was not going to permit us to bring this informer in to actually determine whether or not he even existed and we take the position that this situation as enunciated by the Supreme Court of Ohio in their opinion gives rise to the position that has been taken in our judgment by the police in Ohio that they can merely say they have information from confidential informers, and that we are precluded by the opinion in Beck versus Ohio to inquire as to whether or not he even in fact exists. Specifically in this case, the officer testified that when he saw William Beck riding along the street that he stopped him and in our judgment that at this point this constituted an arrest if the Court meant what it said in Henry, this Court meant what it said in the Henry case. They stopped William Beck and they searched him and at that time they did not find anything. They further searched his car and this likewise did not divulge anything of any illegal nature. Be that as it may, he was taken down to the police station and subsequently he was searched as they say more thoroughly and they found secreted in his socks --
Justice Bernnan: Did they search him for something at the police station?
James R. Willis: Apparently they were looking for something to justify.
Justice Bernnan: Did they book him -- did they book him for anything?
James R. Willis: Yes. After they had searched him he was booked for possession of the items that were found on his --
Justice Bernnan: So he was not booked until after he was searched, is that it?
James R. Willis: It's not clear in the record whether he was but they testified that they ar -- at the time they arrested him and in an answer to his specific question asked by me they said they arrested him by carrying on a scheme of chance which is a felony under the laws of the State of Ohio.
Justice Bernnan: That was at the time they stopped his car that that was the purpose of the arrest then?
James R. Willis: Yes. This was the testimony and it's in the record.
Justice Bernnan: So this search of - of his person purported to be in any event related to that arrest for felony, is that it?
James R. Willis: Yes. At least this is the interpretations that I would place on it because certainly they were not at that point looking for any weapons to secure themselves or to prevent him from escape. I feel and it is my contention that they were looking for something to justify the arrest. It is significant that the statute under which Mr. Beck was subsequently charged was enacted by the legislature of Ohio only by two months before the time that Mr. Beck was arrested and charged and this probably was one of the first cases that involved that statute, but significantly during the trial, the police officer was asked the name of this alleged informer. And of course the Court ruled subsequently that this was irrelevant in view of the fact that this was an arrest, this was a search incident to an arrest. And of course if we take the position asserted by the dissenting opinion in the Supreme Court of Ohio which I think is a correct expression of the law that this arrest must stand or fall on whether or not it was consistent with the law. And the law in Ohio is that you may arrest for a felony if you have reasonable grounds to believe that a felony has been committed or you can arrest for a misdemeanor if it's committed in your presence. Now, it's significant here that Beck was charged with a misdemeanor and he was charged with simple possession of the items that had been found in his possession. We think this is significant because the officer obviously did not know he had these items on his person at the time he made the arrest.
Justice Bernnan: Let's see if I can understand this --
James R. Willis: Yes.
Justice Bernnan: He's arrested for the felony?
James R. Willis: According to the testimony (Voice Overlap) yes.
Justice Bernnan: But after they had searched him they actually prosecuted him only for the misdemeanor possessing the things that they found out, is that it?
James R. Willis: That's precisely the point.
Justice Bernnan: And it's that that conviction that we have before the Court?
James R. Willis: And it's that that conviction that is before this Court.
Speaker: [Inaudible] before this Court that we have a prior record to care for under the Ohio law, they had a [Inaudible] guilty of the penalty for felony.
James R. Willis: There's that notion expressed in the opinion by the Supreme Court of Ohio, but this is specifically is of specific importance because that statute had only been enacted in the ninth month of 1961. This case occurred within say 60 days. He had been arrested and it appears in the record and in the opinion of the Supreme Court of Ohio that he was arrested in 1959 which was two years before the statute was enacted under which makes the second offense a felony.
Speaker: And I guess maybe the police require -- I think the police didn't know about this statute.
James R. Willis: In the record there's testimony by the officer that they knew William Beck and that they -- when they had this, when they got this information they checked on the record or whatever the police indexing system is and they got this information and they had a photo of William Beck. So certainly they knew and according to the briefs submitted by both the amicus and by the respondent, these men were specialists and they feel -- in the field of purging out this type of crime and therefore we can assume that they knew that the statute only reason had been enacted because they charged him under it, yes.
Speaker: [Inaudible]
James R. Willis: No. Carrying on, promoting and there are couples of other charges.
Speaker: [Inaudible]
James R. Willis: No.
Speaker: [Inaudible]
James R. Willis: I -- I take the position that it would not be and I feel that if they proceeded based on the information that you have just suggested that that search would be illegal on two grounds, one if they had this information at the time they were at the police station then what excuse would they have for not having procured an arrest warrant. That's number one. Yes.
Speaker: [Inaudible]
James R. Willis: If the -- in that situation then time may very well be of the essence and this could very well be what the Court was talking about in Ker, but we don't have it in this case. They claim they got the information in the morning and yet it was one o'clock when they arrested William Beck who was proceeding lawfully along the public street. So what excuse can they possibly offer for not having procured a warrant, providing they could have qualified -- qualified for one? And as this Court said in Wong Sun whatever maybe the requirements for specificity and the particularity of the information to arrest without a warrant, it certainly can't be less than what it would be if they were attempting to get a warrant, that's the issue here.
Byron R. White: Well Mr. Willis, it maybe that they knew a lot more when they went out to that location and they knew at the police station.
James R. Willis: This could --
Byron R. White: And they may have not been able to -- may not have had reasonable cause and they left the station, but may have had reasonable cause when they got there.
James R. Willis: Yes. But the record doesn't support that contention.
Byron R. White: No but the Ohio Supreme Court said information was given to the police by an informer that the defendant would be on a certain locality at certain time pursuing his unlawful activities. He was found in that locality as predicted.
James R. Willis: We have the testimony by this officer that this was what the man had told him, but we have no way of knowing whether or not this was -- but his ability to imagine instead of facts that would be sufficient to convince the trial court. It was for that reason that we wanted the informer so that we could have him there. Here they're claiming --
Byron R. White: Well, this is what the informer -- you don't question at what the informer did tell him that?
James R. Willis: Yes, I do question it. I questioned even the existence of --
Byron R. White: Well I know but that's the finding, that's -- that's the factual matter, the Ohio Supreme Court seems to resolve against him.
James R. Willis: It's a matter that the Ohio Supreme Court resolves without the basis for any evidence in the record to support it. And it is that reason that we feel that the former – informer, the phantom informer situation is present in this case. And we should have his name in order that we can inquire as to his -- to his -- even to his existence, the existence. [Recess]
Earl Warren: Mr. Willis you may continue your argument.
James R. Willis: Thank you sir. Mr. Chief Justice, may it please the Court. Referring Mr. Justice White to your question as just before the recess about the idea that the Supreme Court of Ohio had resolved the idea that these officers had sufficient information, I'd like to point out that in the record there is nothing to support their determination that the police officers had good information that he was violating the statute. What the Supreme Court of Ohio is -- has apparently said is that, if the police officers says that he has information from a reliable informer into whose identity the defendant cannot inquire, this constitutes good information.
Byron R. White: [Inaudible]
James R. Willis: Yes sir.
Byron R. White: [Inaudible]
James R. Willis: Now, to -- the Supreme Court makes that statement, but it does so as a consequence of having accepted and given for credibility to the testimony of the officer who related that the informer in fact told him that Mr. Beck was doing something in connection with numbers. And it was on that testimony that the Supreme Court of Ohio concluded that this was good information. And it is for this reason that we are concerned here that the Court -- the Supreme Court of Ohio can under the idea expressed in Ker that they can develop reasonable rules to facilitate the application of the Fourth Amendment that they can say that if a police officer testifies that he had information from a confidential informer whose identity need not be disclosed then the question certainly arises as to whether or not that notion is consistent with the concepts that have been developed in this Court under the rules of search and seizure more specifically Rovario versus the United States which takes the position as expressed by this Court that whenever any information is necessary to the -- to the perfection of any defense then disclosure certainly should be required. There are certainly a number of cases in the federal circuits which support that notion. Canty versus the United States certainly expresses the notion that an anonymous informer can never supply probable cause.
Speaker: Supposing Mr. Willis that this police officer had gone before a magistrate and made an affidavit which included the facts that he claims he relied on here, would a warrant have properly issued?
James R. Willis: It won't -- Mr. Justice Harlan I would take this position that if he merely stated the facts as they are disclosed in this record that it would not have been sufficient, I feel that the magistrate certainly would have required that he disclose the identity of the informant to him and indicate the predicate upon which he determines or concludes that he is reliable because as was stated in Giordenello that it is for the magistrate to determine the persuasiveness of the facts that are relied on to determine the probable cause rather than by the office who's engaged in investigating the crime.
Speaker: This Court has never held has it, that that the magistrate must require disclosure of the informant, the identity of the informant?
James R. Willis: Not that I know of. No sir -- you're quite right sir, I know of no case where this Court has taken the position that disclosure must be made to the informant, however, in Aguilar you get the notion that certainly a sufficient amount of evidence to amount to probable cause in the determination of the magistrate must be made. And I feel that the magistrate would be regrade in his duty if the police officer merely stated that he had reliable information from an informant that someone was en -- someone was engaged in crime and based on the determination by the police officer that he had probable cause without any inquiry on behalf of the magistrate I feel would violate the Fourth Amendment.
Speaker: Of course in Aguilar, the -- there was or the difference there was that all the -- the client said was that he had received information. He didn't give any indication on what the information was or anything --
James R. Willis: This -- this is quite true.
Speaker: -– to enable the magistrate to make any appraisal of it.
James R. Willis: This is quite true. And I think that Aguilar supports our notion because here we only have the statement of the police officer that he had received the information. We cannot possibly establish that he did not in fact receive such information unless we know who the informer was and number two, we have to at least know whether or not he exists. And here there was no, not even an attempt to disclose who the informer was. And certainly we would not inquire as to all of the information that an informer had supposedly given this officer because then we would only be limited by the officer's imagination knowing that the police -- I mean that the Court is not going to permit us to in -- to know who the informer is and thus bring him in and therefore attempt to show that in fact he does not exist added that the information given by the informer was not sufficient or that the officer was not reasonable in relying on the supposed information and it was for that reason that we were concerned about knowing the identity of the informant. And I feel --
Arthur J. Goldberg: Mr. Willis --
James R. Willis: Yes sir.
Arthur J. Goldberg: In Aguilar I would say that in Preston he did not have to disclose the identity of the informant and what we said the vice there was, there was none of the underlying circumstances to both of the affidavits. And here we have some circumstances then the real question here whether the circumstance is closed. I mean there are circumstances disclosed that the Court or before the Court issued a warrant along with their decisions that they are then supporting an arrest. In those circumstances in which the Court feel are informant and has very limited information that this gentleman is in a certain location as it was derived in the record, in a certain location operating numbers. And then it appears that the police checks and then finds that he's been convicted three times for this. And they close up with him that they go out in the area and here you know they run across the man, locate him and they search the prerogative the reliability of the informer's disclosure. I don't care who the specific one is. Have you had the choice ahead?
James R. Willis: Mr. Justice Goldberg I take this added to in reference to the situation that you have just outlined. Number one, in Jones versus the United States, this Court established the notion that hearsay can be the basis for the establishment of probable cause providing there is a reasonable basis for giving some credence or weight to this hearsay testimony. And it was in Rugendorf that this Court again indicated that disclosure would not be required because there was a reasonable basis for accrediting, I think was the term used, that hearsay that supposedly had been given. But in -- in this case, we have here only the statement by the police officer which was given after the arrest that he had the information before the arrest. This certainly lends itself to the proposition that he might be reasoning ad hoc in an attempt to justify what had occurred. And I think it is for that reason that this case establishes a dangerous precedent because we do not know as a fact that the informer even existed. And I think that merely for a police officer to say that I checked and found out that a man had been convicted two years before three times under an ordinance, that this therefore says that he is now convicting a newly enacted statute. And I think that this situation certainly gives rise to a clear cut example of why search warrants are required. And I think that at least in these cases that more is required by way of the disclosure of the identity of the informant.
Speaker: What do you say about the Draper case in this Court?
James R. Willis: In Draper you had the instance of an informer I think his name was Marsh who had worked previously with the government, and in fact was a special employee and was being paid and he described that Draper would be coming in from Chicago into Denver. He described his gait. I think he described the -- the manner he would be dressed and that -- that he would be carrying a valise or some packed suitcase, something of that nature. And that he would eventually walk -- walked in a fast manner and he'd be coming in a precise train. They met the train and lo and behold, the facts that had been given to them by their paid government agent coincided with the events as they occurred and it was for that reason that the arrest as apparently this Court felt that there was sufficient facts to justify the arrest without a warrant of Mr. Draper.
Tom C. Clark: Was that Norman Draper.
James R. Willis: Yes, but --
Tom C. Clark: Or if he's new -- his name he's then have convicted three times, they had fixed it to him.
James R. Willis: This is quite true Mr. Justice Clark but in Draper we had a -- a description of facts which lay -- I mean a description of events which subsequently occur as predicted by the paid government agent. At least they knew the informant there was a basis for accepting the notion that this man was reliable because he had given evidence I mean information in the past that was consistent. We don't know that this happened in this case. We merely have the officer's conclusion that the informant was reliable and we -- reliable and we have the adoption by the Supreme Court of Ohio of his statement without us having been permitted to inquire as to the propriety of such a determination.
Tom C. Clark: Well, they used that phrase in every line of these applications for warrants and they don't go behind them?
James R. Willis: I think it -- you're quite right. They do use that phrase and it was also used in Aguilar and this Court apparently felt that something in addition to the phrase reliable information was necessary and I call the Court's attention again to Giordenello which takes the position, if I understand the case correctly -- that it is the magistrate who must draw the conclusion that probable cause exists rather than except at face value what has been stated by the police officer. And I agree with the statement that has come from this Court. That history has shown that the police officers acting on their own cannot be trusted. And I agree further with the statement or the idea that this is the age of the faceless informer and I certainly feel that some protection should be given to citizens so that he would be in a position to at least establish that in fact the police officer is committing perjury when he says he has information if that is the case. And I feel that under Beck as it now stands on the books of Ohio that this situation is highly vulnerable to a possibility and that's all we have to be concerned about, the possibility that by resort to a fictitious informant that probable cause can be established conclusively.
Hugo L. Black: Would -- would you -- have a trial of that issue in which the reliability of the informant could be attacked?
James R. Willis: Mr. Justice Black I would -- do precisely that and I would take this --
Hugo L. Black: Now, would you -- would you let them try it and put on attack to which this shows that he had a bad character and a bad reputation, the informant?
James R. Willis: No. I -- I -- I don't --
Hugo L. Black: Why not, why not --
James R. Willis: I don't --
Hugo L. Black: - they're under a trial?
James R. Willis: Well, I think that the trial judge in determining the magistrate if you please, in determining whether or not real -- this -- this particularly informant is reliable, has a duty to at least concern himself with the issue rather than as was done here accept what was stated by the police officer. And I -- and I think that the notion that maybe the trial is required is at least some additional protection which is certainly more than what we have in Ohio where today when a police officer says he has reliable information, that is a conclusive determination and we cannot assail it from any posture.
Hugo L. Black: You mean a case of this kind.
James R. Willis: A case of this kind. And significantly in Ohio that is --
Hugo L. Black: Well, of course they don't -- they don't rely on that kind of evidence when they go to convicting, it's this whether he's guilty. They've got to have direct evidence about it.
James R. Willis: Yes, they do. They would have necessarily have to have direct evidence as to --
Earl Warren: Mr. McKnight.
William T. McKnight: May it please the Chief Justice, all of the Justices in the Court. First of all I'd like to say this because it may account for counsel for the petitioner having in mind some things which counsel for the State of Ohio doesn't. I was not informed of any of these facts until the file was given to me to prepare. So I am of necessity bound by the record which has been filed in this Court. And alluding to that record, I have to take exception to what my worthy opponent said that in anywhere in this record Mr. Beck was asked or that he voluntarily gave the time at which he got this information from the informer. There's nothing in this record about time except that the informer said if you go to 115th in Beulah Avenue at about one o'clock pm there you will find William Beck and he will have on him some number slips.
Potter Stewart: Where -- where does that appear, you paraphrase I know, but does that appear?
Byron R. White: Now where does that appear, I don't know where it is?
William T. McKnight: Number 10 -- page 10.
Potter Stewart: Page 10.
William T. McKnight: Then you'd -- If you begin there about the arrest, “Then you didn't have any arrest that you knew of as far as 1960.” “Not to my knowledge.” “You indicated that you were upgrading on information?” ‘Yes.” “For whom did you get this information?” “I can't divulge that information.” Answer -- oh, question: “I didn't understand your answer.” “I couldn't divulge that information.” Question: “But somebody specifically did relate that information to you.” “Yes.” “And you knew who that person was.” Now that is the time that when he asked about whom the informant was. And then we turn back to the original questions on page 5 of the record when Mr. Willis was making the examination in Court. And we asked the sergeant's name, “You participated in the arrest of William Beck.” “That was on November 10.” Were you, oh -- where approximately was it where you arrested Mr. Beck?” “I arrested him on Beulah Avenue just off 115 Street at one o'clock on that date.” “Beulah is between Ashford?” “About what time was that?” And then he gives “It was few minutes before 1 pm.” Now on page 6, when it began “You called him to pullover?” “I identified myself and request him to pullover.” “Then you searched him?” “Prior to that, did you indicate to him that he was under arrest?” “Not while searching the auto.” “In other words you searched the automobile before you placed him under arrest?” Answer: “I placed him under arrest just as we were searching the auto.” “Prior to that time you had not discovered anything that -- that was illegal other than a hunting knife. Why then did you place him under arrest?” “I placed him under arrest for a clearing house operation scheme of chance.” Question: “At that time you had discovered some evidence of the scheme of chance?” Answer: “I did not.” Question: “At the time you placed him under arrest you did not have any evidence?” Answer: “Other than information.” Question: “In other words, you heard rumors?” Answer: “I heard reports and found that he had a record in connection with clearing house in scheme of chance.” Question: “Previous convictions, that's in the plural.” Answer: “Yes.” Question: “On this information you arrested him on the city streets on Beulah Avenue, you searched the automobile?” Now, throughout the record it shows that all of these information, the officer testified under oath came to him from an informer. And I wish to make the point that there is no -- there was no inquiry as to what time he got this information because that would be important as to whether or not this officer on a special squad had time to go to a magistrate and attempt to get a warrant. Further in the record he says when he was asked why he didn't get a warrant. He says “I couldn't get a warrant on this kind of information.” Now we have to assume what he means, that is from information, from an informer who didn't -- he doesn't even say who was the informer, disclosed at that time who he was and whether he was dependable, but using the phrase that Mr. Justice Stewart used this morning about the facts of life, I would like to be permitted to comment on this particular crime and first I would like to bring the Court's attention to the word of this crime as in the Revised Code of Ohio which as counsel has told you became effective September 1st, 1961 approximately two months before this arrest. Now this is the Revised Code 2915.111. "No person shall own, possess, have on or about this person, have in his custody, or have under his control a ticket, order, or device for or representing a number of shares or an interest in a scheme of chance known as policy,' numbers game,' clearing house,' or by words or terms of similar import, located in or to be drawn, paid, or carried on within or without this state.” Now, this is the penalty which determines whether or not it would be a misdemeanor or a felony. "Whoever violates this section shall be fined not more than five hundred dollars and imprisoned not more than six months for a first offense. For each subsequent offense, such person shall be fined not less than five hundred nor more than one thousand dollars and imprisoned not less than one nor more than three years. Now under the laws of Ohio, any penalty which is required to be imposed of more than a year makes it a felony. In this case as the record show William Beck was charged under Section 2915.111 and since this, on second offense caused for a felony conviction, then we should apply the rules as to what a police officer must do in order to make an arrest and an incidental search thereto when he is in his opinion convinced that a felony is being committed. Now, the commission of this felony is having on your person in these things. And whether or not this police officer, Sergeant Delajo knew it or not so long as this petition or any other person had about him concealed evidences of participating in this gambling game, the felony was being committed. Now that must be borne in mind when we apply the test as to what the officer was required to do in affecting his arrest. And in the record he says “I went out to look for this man and if I found him I intended to arrest him.” He did find him. He found him at the time and place that he was informed he would be there. Now he stopped his car, he asked him to pullover. He pulled over. He searched the car. Now there's nothing in the record saying that the evidence of gambling would be in the car or on the person who was driving the car or who was the passenger in the car. And so that's of course would have to remain for the officer to use his judgment and being on the special investigation squad and having much experience, he would take an approach perhaps different from anyone of us or certainly any lay person in his approach. He searched the car, and then he says in the record, “I placed him under arrest while I was searching the car.” He found nothing in the car and that wasn't unusual. What would have been unusual is for these number slips to be lying out on the seat of the car? It would be expected that they would be on the person and so he placed him under arrest, took him to the Fifth District Station, on 117 Chester, and there searched the person as the individual. Now, I can imagine the hue and cry that would have gone up, if a police officer asked William Beck to step out on the street and he had started taking off his clothes to see if they had secreted about his person number slips that would have made the front page. So we took him to a precinct station and there arrest -- searched him and found in his socks an envelope containing these slips. Now here the significant in this case and I wish to call it to the Court's attention because just so recently, the Mapp case from our state had been reported. That there is no evidence in the record that at any time William Beck was mistreated, that he resisted arrest, that he was manhandled, and the trial consisted solely of a stipulation suggested to and entered in by counsel for the petitioner. That the inquiry made to support his motion to suppress was all of the evidence that was available and it was stipulated that that evidence should be the evidence considered for the Court to determine the guilt or innocence of the petitioner. Now, if there were any other facts of significance which counsel thought the Court should know or which he thought would aid his client in being acquitted, then certainly he had the opportunity to go forward because the trial judge asked “Are you ready to go forward gentlemen?” It was then that it was announced that this case would be submitted on stipulation of Counsel. Now, that is significant because much of what surrounds this is not before the Court. And so at this point I would like to have the liberty and again alluding to the factual situation, we're talking about the conduct of a gambling operation which is based on a number being determined everyday by the results of the number of shares of stocks sold on and agreed exchange, maybe it's the New York Stock Exchange or maybe another exchange which is known to the players. The players have to place their number written on a piece of paper at a particular place. And then the next operation is that others come and collect these pieces of paper with some identification as to who the owner is and takes them to another place. And this operation has to be carried on in almost split -- split second time because it's all over in a few hours and each day is complete in itself. And if the man who is in the pick up man, whose duty it is to collect these numbers and take them to the place where they're registered fails to get there on the minute, now remember there have been articles on the newspapers to the effect that some late players had contact with New York and they went away with the killing because the number had been announced before the numbers had been placed with the house that paid off. Now all of that is most important in the consideration of the rights of this petitioner because it goes to the gravamen of this case as to whether or not this police officer acted in view of all the circumstances on information which came to him and the record doesn't say how long before one o'clock and he was told that he got there at one what he would find. Now from reading the petitioner's brief --
Tom C. Clark: Mr. McKnight.
William T. McKnight: Yes --
Tom C. Clark: Is this pertinent question [Inaudible]
William T. McKnight: Yes.
Tom C. Clark: Is that the investigation stating that [Inaudible] to the precedent and disclose an -- state an element of the record. I mean he says if he doesn't have a search warrant [Inaudible] and the question, “Did you have an opportunity to [Inaudible] “I have no opportunity because there was no warrant available on subsequent of cases.” How does that came out [Inaudible]
William T. McKnight: Well, I will interpret that from the knowledge that has come to me not being assigned to the criminal division and being on the appellate where I just read what happened, but to me it means, that the police officer could not with the fragmentary information that he had, nothing more than time, place, the name of person, and what was to be found, could go to a magistrate and say “I just had a tip and this is what I've been told, and so on information and belief and I believe this information, I wish to make an affidavit and have a warrant issued.” Now, he couldn't know and that was why I wouldn't know how this game is played, he could know that he would catch up with this automobile at 115th in Beulah. And if the warrant were definite as to place and he asked for a warrant for 115th in Beulah, but -- and this could have been just as true than the case in California, the Ker, he may have had the chases although if he had got a glance and knew that this was Delajo and most of the men in the business knew Delajo. If he had seen Delajo, he might have speeded up ad he might have been six blocks or a mile away before he could curb him. And he had in his pocket a warrant authorizing him to make an arrest at 115th in Beulah. Then the question would be here as to whether or not he with that warrant could make an arrest a mile away.
Tom C. Clark: Is the warrant [Inaudible] self evidence?
William T. McKnight: I haven't seen a warrant made out to intercept an automobile at a particular point. Most warrants are for a building which is stationary, a search -- you search the premises --
Tom C. Clark: But an arrest warrant would not?
William T. McKnight: Arrest warrant wouldn't.
Tom C. Clark: But he could gone out and considerably the arrest of the [Inaudible]
William T. McKnight: I would say if, and the record is silent on that, if this were something and let me make this kind of analogy, they just said each day plays a separate event. Now if there were a number of men planning to rob a bank at a time in the future, many days on and there came a tip and the police officers were organizing themselves to be present at the bank, I would say that there was ample opportunity on the information that it comes to that to get a warrant to make an arrest of the persons at that place. But to keep up with the numbers game, the number of writers, the number of pickup men and the -- another fact of life is that the place where the numbers are turned in it changed whenever the man where they are left to get to an idea that that too many police officer cars that can't be identified in the neighborhood, the word goes out to morally impeding that interest. I mean, that the whole operation is fluent rather than --
Tom C. Clark: Mr. McKnight I thought perhaps the moot question is that this [Inaudible] by he magistrate. As you said earlier the basis of what the policeman had he'd be found, Mr, Beck at that location, at that time, he could not get a warrant. But the precedent should use the crime at that occasion at the time he investigates. It was a judicial purpose then that would have provide a car [Inaudible] that closes, he didn't have time to go back and get a warrant. Is that the -- is that what --
William T. McKnight: I think this -- I think that the Sergeant Delajo has furthered and he would have had to go. In the matter of the depth of this, time and place, I think that he had information from an informant that on this day William Beck would be a pick up man for the hour and he would have numbers, wherever, you find him between ten and one. He will have on his person a number slips for a certain house. Now that may have been all of the information the informant had because when we speak about the weight to be given to the information coming from an informer, I think we're all are conscious of the type of people who are informers. Now you have to be close enough to the operation to get this kind of information. As we heard in the argument preceding this one who would be around still except someone having some interest in the operation of making moon-shining. Now who would have the information such as this informer except someone close enough to the operation of this game so that he could know that William Beck was carrying for this house that would have to deposit the slips collected at this house at one o'clock.
Byron R. White: Does that assume the point of making all these information [Inaudible]
William T. McKnight: Well, the evidence may now permitted to stand Mr. Justice White but it was true, he found just exactly what he was looking for on Beck, it was true. I think what we're talking about is a legal matter, was he permitted to take it off of Beck under the circumstance. It was true, at one o'clock, at 115th in Beulah William Beck had number slips on his possession -- in his possession.
Byron R. White: Beck was [Inaudible]
William T. McKnight: Well, I think it -- since as I said, the case was tried on the questions that were propounded in support of the motion. I would say that it enable a lawyer questioning the police officer wouldn't go beyond asking the questions, the answers to which would help support his case, I mean that's what a trial lawyer is expected to do on either side.
Byron R. White: But the of -- the officer said that they had in mind coming from the familiarity of the [Inaudible] in Beulah.
William T. McKnight: Yes.
Byron R. White: Would he say that where he got that idea that be there only asked to see if [Inaudible] informer told him on his behalf. Wasn't the defendant -- and having that to say directly, the informer said to go 115th Beulah at that time?
William T. McKnight: He -- he said that the informer told him where he would find him.
Byron R. White: Where? [Inaudible] that's what I'm looking for in the record that I could not find in this case [Inaudible]
Tom C. Clark: [Inaudible] is that correct?
William T. McKnight: That is correct.
Tom C. Clark: Under the arguments is full on the basis on the premise and whether the [Inaudible] and he stopped him and they did infer and [Inaudible] that the police officer on a lot of tips to see [Inaudible] being stopped [Inaudible]
William T. McKnight: Well, you see there could be more than one interpretation on making his doubt. Now using that phraseology, a stop, if I read that I would think that the officer meant a pick up not at the place where he would finally deposit these shares. Pick up, these pick up men go to various places where they are accumulated where the players have left them. They gather them up and then they take them to wherever they are told to take them for that day so that it could be tabulated. Now when he said make a stop, I am assuming and it is in the record that he hadn't seen this man for sometime and I think that the arrest that he knew of were in 1959, I believe that is the year, that he was waiting for the man to do some act in his presence which would confirm to him, since there had been a lapse of time between the prior convictions and this particular date that that act coupled with what he had learned and the record, maybe he was back in the business, and he was waiting for a stop.
Tom C. Clark: Now -- now what precisely, what do we have in this record that shows that Beck is about to – there is this problem of those who make an arrest. Here is a policeman [Inaudible] offense two years prior to that time and it hasn't been in fact -- can you justify that the police had the right to pick up the man on the street on that basis of making arrest without a warrant, what in addition did that that we have in this Court, now is that this case --
William T. McKnight: Well, I would –
Tom C. Clark: Are you arguing -- are you arguing Mr. McKnight that on the basis of a tip without any underlying circumstances to show that the informant so you don't have to [Inaudible] based on these tips that a one time criminal is back in business that the police may pick him up without a warrant.
William T. McKnight: I would say that on the observation of the police as to the manner in which the person who has had a former conviction is acting in his presence.
Tom C. Clark: Now what -- what was he -- what does this record show? If he had made a stop [Inaudible] information what does this record show --
William T. McKnight: He was driving along lawfully and they curbed him that's what the record says.
Tom C. Clark: Driving –
William T. McKnight: Lawfully upon the street, 115th Street, when Delajo and the other officers in his car curbed him and he pulled in front of him and drove him to the curb.
Tom C. Clark: Do you have a sufficient basis that they [Inaudible]
William T. McKnight: I would say ordinarily not. In the instant case I would say yes.
Tom C. Clark: Why?
William T. McKnight: I would say it because the information that he received as to what would happen at about that time and place did happen.
Tom C. Clark: You mean what the search disclosed --
William T. McKnight: No, no.
Tom C. Clark: That's irrelevant.
William T. McKnight: No -- no. At the time of the arrest, he was told that this man would be committing a felony. He knew he had three prior convictions. So if he were found with these slips on his person or he had them on his person, the moment he put them on his purse and he was committing a felony, whether or not the officer could see it. Now if it is a misdemeanor you don't have to see him committing it in his presence or having a warrant, but if he had in his possession these slips after prior conviction, the mere possession of them whether they could be seen or not was the commission of a felony. When he was told that his man would have these slips, he was told that this man would be committing a felony and when the man drove by him, if he believed the information that came to him, then he believed that a felony was being committed in his presence by possession and it does to say possession which is obvious by the paraphernalia being in site, is just having on your person, and I'm sure that the members of the general assembly when they wrote this had in mind that if in all likelihood the possession would be supreme and would be where you couldn't see it. But he was committing a felony by having it on his person whether or not these police officers saw him or stopped him or not. So as to whether he would justify it in making an arrest, it depended on whether he believed a felony was being committed in his view and one was being committed.
Justice Bernnan: Well from what you've told us about the operation of this kind of crime would you contend that there would have been probable cause if all of that had happened, that no informer, that the officer in this particular kind of work as you say is specialist, knowing this fellow who was engaged in it was in an area where he knew that kind of thing was going on and stopped him?
William T. McKnight: No, he'd have to have some information, some probable cause, the probable cause with the information no matter how it came. In this instance, it came from an informer. And the only thing that I can see the petitioner has before this Court now is a request that this Court say that there shall be no faceless or nameless informer and that every informer must stand up and be counted before a police officer and conduct an arrest and a search.
Justice Bernnan: Well, our cases are against as to that of course where --
William T. McKnight: That's right.
Justice Bernnan: -- the officer says that the informer is one who has given them information before which he found reliable, do we have that here?
William T. McKnight: He -- he doesn't say that it is reliable. He says that the -- the informer told him about this case. He doesn't even say that he had had any prior contact with this particular informer. We -- we don't know from the record --
Justice Bernnan: But why -- why then within our cases you have to satisfy to the requirements of probable cause.
William T. McKnight: Well, I think Mr. Justice Brennan --
Justice Bernnan: And if -- if that you would now on the premise, Mr. McKnight as I understood you to make that it would not be enough without the information from the informant that the crux of this case probable cause is whether this supplies the deficiency when in this instance if you please there's no indication that the informer was a reliable informant in a sense to be defined.
William T. McKnight: In my opinion yes, that would be the --actually that he would have to have information from some source but he would not have to divulge the name of the informer --
Justice Bernnan: Well he might not have to divulge it that I -- I suggest that's probably settled against your adversary in the case where the police officer can say that he had relied on this fellow before and had found him rely -- his information reliable, but that's -- that's missing in this instance.
William T. McKnight: Well, I think that it could -- informer whom he had never heard because it could very well had be it, if we're just speculating, his informant could have been someone in the department who is an undercover man and who had –
Justice Bernnan: Well Mr. McKnight you know of any case of ours in which in reliance on an informer we have not consistent that the informer being one upon previously the officer had relied?
William T. McKnight: No, but in the cases that I've read from this Court, I think that the language used is where the informer participates in some way in the arrest or had some connection with the commission of the crime where he did more than just give information. I don't think that I have read a case where all he did was give information and had no connection with it that he had to have had prior connection with him and had received information before which he had found reliable. So that in the instant case he would know that this was a reliable informer.
Justice Bernnan: Well my point is though in this instance it could well have been that the officer had a hunch that this fellow would be there and if he were there he was going to have policy slips on him as indeed proved that he did. Now how was that any better or how was it any better that some informer had a hunch that he was going to be there and then he would have policy slips on him when he'd never had that kind of information from this informer before, well how is that any different?
William T. McKnight: Well, I don't know that it is particularly any different other than the oath of the officer who didn't make it for the purpose of getting a warrant before a magistrate but on being called into open court and put under oath and query by counsel for the petitioner, remember he was in the Court and he was saying all of these, now, it's just a question whether he was to be believed when counsel suggested that he may have fabricated this because that just become a matter of credibility of the witness.
Byron R. White: Mr. McKnight it may not have been searching here that he had information in the past, but if you read this record and the testimony and saying that the informer called the officer, not only that then he was engaged in this business but if he could be found doing so at a certain spot at a certain time, if you read the record that way like the Ohio Supreme Court did, you did have some kind of confirmation for this information until the fellow found him in that car, which is another way of [Inaudible] of verifying to the reliability of informant.
William T. McKnight: Well I didn't want --
Byron R. White: The real question is whether or not of course the question is whether or not that whether you have what the Ohio Supreme Court did --
William T. McKnight: Well Mr. Justice White I wouldn't want the counsel to think of me as it expresses in his brief, you think for the Court for having done that. He doesn't think much of Ohio Courts for having acted in that manner as it is set forth in the brief and that's why I prefer to stick to the record rather than go beyond and just suppose things that hadn't been offered.
Hugo L. Black: Mr. McKnight you haven't discussed one phase of the page, why was he searched at the police station?
William T. McKnight: Mr. Justice Black I said that by reason of the contraband which they expected to find secreted about his person it wouldn't be the policy of a police officer to ask the man to step out of an automobile on the public street and then proceed to search his person to find the contraband. Now --
Hugo L. Black: Now what was he searching for when he went to the police station?
William T. McKnight: Search for number slips.
Hugo L. Black: For what?
William T. McKnight: For these slips that indicated that he was engaging in this gambling game called numbers.
Hugo L. Black: Have you -- you didn't discuss our case last year of Preston, did you?
William T. McKnight: No sir.
Hugo L. Black: Have you read it?
William T. McKnight: I don't think I read the Preston brief.
Hugo L. Black: That's a case where we had to pass on, we assumed that the search and the arrest was valid, probable cause by the Court, car was taken and the man was arrested and after they got him up to the police station, they went out and broke into the car and --
William T. McKnight: Calif – is that the California case?
Hugo L. Black: Well we held that that was not a search incidental to the arrest.
Potter Stewart: [Inaudible] Kentucky.
William T. McKnight: Oh no sir, I was thinking about the Ker case -- no, sir I don't think I read that Mr. Justice Black.
Hugo L. Black: Probably you can distinguish but it has a pretty close relationship to this one and I don't see why you've mentioned it at all?
Tom C. Clark: Well here you can search him because you're at a public place and a public street and you'd had to take his clothes off, would you not?
William T. McKnight: You don't almost have to because again looking to the facts of lies, these number slips have been found on -- on pick up man could secrete it everywhere. I mean they don't carry them openly and it's just like we find in other cases of contraband whether it's narcotics or what they try to secrete it at a place most unlikely to be found, or certainly hard to get at. Now, anticipating that not seeing it in the car, if we were going to make a search and we're going to make a thorough and he believe it is the informant that they were there, it might be necessary to go down to these barriers in before he found what he was looking for and he wouldn't want to do that on a public street.
Hugo L. Black: Where did they find them?
William T. McKnight: They found them in his sock, it was secreted in his sock and that was found when he was over the Fifth Precinct Station on 117 Chester.
Hugo L. Black: Was there any reason for arresting him except the fact that they're intercepting him there? Except to find the evidence did you -- was it part of the routine procedure and arrest bring the man to jail?
William T. McKnight: Well, if there would be routine --
Hugo L. Black: I see nothing about it in the record.
William T. McKnight: It would be routine if an officer had information and a man had something on his person and it wasn't readily identifiable or discoverable by what we call patting him down. They didn't think it's as big as gun, they do this and they know that he haven't gone there to feel it, but he could have an envelope at least slips or in an envelope and you could pat him and never feel the envelope. You got to get in and find it and if it were secreted inside, it would mean undressing an individual almost because the search of the person isn't complete until every garment has been removed.
Tom C. Clark: Well not to make him remove every garment when they put the man in custody.
William T. McKnight: They may have taken him into the jail, yes sir.
Tom C. Clark: That's what they were doing weren't it, take him to jail. Was he in the jail?
William T. McKnight: They had arrested him out on Beulah.
Tom C. Clark: But this search was in the jail.
William T. McKnight: And the search was in the jail that was incidental to the arrest.
Arthur J. Goldberg: Do you think -- do you think that the question (Voice Overlap).
William T. McKnight: Have you been counseled to this, it's been even three, four or ten years I'd have to say no.
Earl Warren: Very well Mr. McKnight. Mr. Willis.
James R. Willis: I think that Mr. Justice Black's question about Preston is indeed salient. As we understand the Preston case, he assumed that the arrest was legitimate for vagrancy and there was a subsequent search of the automobile in which this Court felt the warrant was required and for that reason the evidence was held to be suppressible and I think --
Arthur J. Goldberg: Why -- why is that, distinguished to the Preston very much and that Preston's argument [Inaudible]
James R. Willis: Except -- Mr. Justice Goldberg, as I understand the previous thinking of the Court as expressed in the Rabinowitz for example and even in the Preston that a search incident to an arrest is usually one concerned with the event of destruction of evidence or search a weapon as well. What evidence were they looking for in this case? Now having found the numbers doesn't infer to follow that they should have charged him with the felony rather than with the possession of the items that they found. It's obvious and I think that the answer to that question shows how clearly, at the answer given by Mr. McKnight that they would not have charged him shows very clearly and most cogently that this was an exploratory general search. Now we talk in terms of the reliability of the informer and again this Court in Jones versus the United States, you had the informer stating the Narcotic Jones rather than the one from Georgia, you had the informer stating that he had purchased narcotics from Earling Richardson and the Jones, the Cecil Jones I believe it was on a number of occasions. And the officers knew that this man was a narcotic user because he evidenced the -- the marks and he knew that Earling Richardson and Cecil Jones were narcotic sell -- users. And the informant say that they would find the narcotics in a specific place and all of these were filled out in an affidavit which this Court barely affirmed in my judgment as being sufficient. I take the position in this case that the officer when he took time to go look up this man's record, and got a photograph of him that he had ample time to have gotten a warrant provided he could qualify for a warrant. I take the distinct position that he did not have sufficient evidence to have qualified for one. I take the position that there was no informant in this case and that what the officer did was as was suggested by one of the justices in his question, he had a hunch or he possibly saw William Beck in this area and he arrested him. And for all that appears in the record and for all that we were permitted to show, it could very well have occurred that he dreamed this informer up in an attempt to justify his act of having arrested him. At least this much is true. We can never disprove that he had the information that he says he had and unless we know who the informer is. And I think and we established a dangerous precedent if we say that an officer can establish beyond controversy, conclusively if you please, the idea that an informant told him something and that we will be limited to whether or not the judge in fact wants to believe the officer. I think that this is a dangerous precedent because in this way we have absolutely no protection. And I can call to mind a situation in which I participated in which this very act occurred and I cited only for purposes of illustrating the dangerousness of this precedent. That was a heinous murder in the City of Cleveland and the police were interested in searching a particular man's home because they had some information from the wife that that's where he said he was going. Members of the Cleveland Police Department under the leadership of Lieutenant Delajo, now Lieutenant, then Sergeant, who is -- he was the lieutenant at that time, he was the Sergeant at the time of this case and he was also the arresting officer in Beck. This officer and members under his squad made an affidavit to the effect that they had reliable information from a confidential informer that the gun used to kill that man was secreted on a particular -- at his particular address in the City of Cleveland. They went to a common police judge which is the Higher Court in the City of Cleveland, he refused to give them a warrant. Not being satisfied they went to a lower judge in the Cleveland Municipal Court Judge, and with that affidavit got a warrant to search this man's home. They went out and search his home and found to his file cabinet and all of his records and turn him over to the Internal Revenue after they didn't find what they were supposedly looking for, and here was a clear cut example of perjury. Officers swearing that they had confidential information from confidential informers -- a confidential informant that a gun was secreted in a man's home that which gun was supposed to kill the third man. And I think that that type of phantom informant and that's exactly what it is, is possible under the Beck situation because when we tried the motion to suppress in that case the judge said based on Beck you're not entitled to know who the informer is and I think it's unfortunate although the evidence was considered suppressible on other grounds but possibly as an effort to abort any appellate procedure on the point but the idea that an officer had the audacity to make a statement based on an opinion that stands as precedent in the State of Ohio that he had confidential information with the full knowledge of the fact that we could never inquire as to even the existence of the informer I think is a dangerous precedent. Thank you.