IN THE SUPREME
COURT OF THE UNITED STATES
October Term, 1968
TED STEVEN
CHIMEL, Petitioner vs. CALIFORNIA, Respondent
No. 770
Washington, D. C.
Thursday, March 27,1969
The above-entitled matter came on for argument at 10:45 a.m.
BEFORE:
EARL WARREN, Chief Justice
HUGO L. BLACK, Associate Justice
WILLIAM 0. DOUGLAS, Associate Justice
JOHN M. HARLAN, Associate Justice
WILLIAM J. BRENNAN, JR., Associate Justice
POTTER STEWART, Associate Justice
BYRON R. WHITE, Associate Justice
ABE FORTAS, Associate Justice
THURGOOD MARSHALL, Associate Justice
APPEARANCES:
KEITH C, MONROE, ESQ.
1428 North Broadway
Santa Ana, California 92706
Counsel for petitioner
RONALD H. GEORGE, ESQ.
Deputy Attorney General of the State of California
600 State Building
217 West First Street
Los Angeles, California 90012
Counsel for Respondent
MR. CHIEF JUSTICE WARREN: No. 770, Ted Steven Chimel, petitioner; versus California.
Mr. Monroe.
ARGUMENT OF KEITH C. MONROE; ESQ.
ON BEHALF OF PETITIONER
MR. MONROE: Mr. Chief Justice, and may it please the Court:
The Court considers today a case which, I believe, goes to the very core of the Fourth Amendment of the Constitution.
The facts of the case: In February 1965, there was a burglary of the Pulati home in Santa Ana, California. A number of coins were taken, some medals and tokens, containers, and so forth.
Q This wasn’t currency; these were rare coins or collectors’ items.
A Rare coins, collectors’ items, Your Honor; yes.
Thereafter, in August of 1965, there was a burglary of coin shop, the Money Vault. This took place in Orange, California, nearby.
Without going into a great deal of detail, there was suspicion of the petitioner as to the Pulati burglary, but I think it was pretty much agreed, and appears in the record, that way, that there was no probable cause on which his arrest could have been founded.
Q He was a fellow member of a collectors’ club, with the Pulatis, was he?
A That is correct, Your Honor.
Q And he missed a meeting one night, and that was the night the Pulatis’ house was burglarized?
A That is correct, Your Honor. Also, prior to that time he had talked to them about insurance, whether or not the coins were insured. He knew, of course, as a fellow member of coin clubs, that they were coin collectors and that they did have coins in their home.
As to the Money Vault burglary, the petitioner made a statement before the burglary to a neighbor that he had a big deal cooking that night and that he was going to knock over ¾ I don’t know whether he said “coin shop” exactly; he was going to knock over a place, anyhow.
Thereafter, to the same neighbor he made a statement the day following the burglary that an attempt had been made to enter, which had been unsuccessful, and some two weeks later he made another statement to another coin shop operator that he had been involved in the Money Vault matter.
Now, then, this was about the middle of August. On August 25th, the California Supreme Court found that petitioner was arrested without a warrant, on the street, in Santa Ana, California, by the investigating officer here, Officer Del Coma. After transportation to the Orange Police station and some interrogation, petitioner was released.
Then on September 13th, something more than two weeks later, officer Del Coma went to the appropriate magistrate and submitted a complaint in purely conclusionary form. The complaint is set out in the petitioner’s brief.
On the basis of this complaint which, in substance, merely said “I believe that this man committed a burglary on such-and-such a date in this county,” on the basis of this complaint, a warrant of arrest issued at 10:39 a.m. on September 13th.
Officer Del Coma doesn’t give us too clear a picture of what he did the rest of that day. He knew where the petitioner was at that time. He knew where he worked. He knew where to go and get him. But in any case, Officer Del Coma arrived at the petitioner’s home something shortly after 4:00 p.m., knowing at that time that he was not home.
He gained admittance to the house, waited for him to come home —-
Q Was somebody else in the house?
A His wife was there, Your Honor.
Q Does it show how he gained entry into the house? Did he show the wife the arrest warrant, or doesn’t the record show?
A The record simply shows that the officer requested admittance to wait for Mr. Chimel, Your Honor.
Q Well, is that to say that at least his presence, the officer’s presence is not an unlawful presence inside the house, based upon the consent of the wife?
A I think this record is not clear enough to show one way or the other, Your Honor. We don’t contend that the officer’s presence was unlawful at that point.
Mr. Chimel came home at something like 4:30 p.m., where upon the officer, after he had entered the house, placed him under arrest on the authority of the warrant, showed him the warrant, requested permission to search, which was not granted. The officer then stated that, having executed a lawful arrest on a felony warrant, he had a right to search, and he was going to, and proceeded to do so.
This search covered every room in the house. It covered the garage. It covered an inspection in the attic and it involved the opening of drawers, the opening of boxes, cupboards. It was described by the officer as a general search. The officer did not have knowledge, at the time he made this search, of information which led him to believe that any specific property was to be found in that house.
Q What is your position about the arrest? Was that a lawful arrest on that warrant?
A I can’t answer this simply yes or no, Your Honor, for the reason that in this case we raised the issue, so far as I know in California, that the arrest warrant had been unlawfully issued.
Q Under State law?
A Under Federal law, Giordenello
versus U.S. and Aquilar.
Q The California court so held, didn’t they?
A The California court did so hold, Your Honor.
Q So we now have a ruling of the State courts that is invalid.
A That is correct.
Q Did they rule that it was invalid under California law?
A No, Your Honor. It was under Giordenello, Aquilar, Barnes, cases from this Court.
Q I see; the arrest warrant itself, on a probable cause basis.
A That is correct, Your Honor. This brings us, then to the alternative holding of the California court that it was a valid probable-cause arrest.
If I may leave that point for a moment, it ties in with a later part of the argument.
Q Well, I suppose it is going to be relevant, isn’t it; what we have to decide is the scope of the search, whether that arrest was or was not lawful; whether on the basis of the warrant or on the basis of probable cause in respect to the warrant?
A Yes, Your Honor. I am a little bit on the horns of a dilemma in that I don’t want to concede the arrest was lawful, because I have doubts. I think that the search was bad for other reasons. I simply don’t want to make the concession.
Q Well, without making a concession, I guess you are going to argue on the assumption that it was lawful, nevertheless in scope, this exceeded the speed limit under the Fourth Amendment.
A This is correct, Your Honor.
Q But you are going to argue, aren’t you, that there should be no arrest without a warrant at all?
A No, Your Honor, I don’t intend to make that argument.
Q You do concede that you may arrest without a warrant, constitutionally
A Oh, certainly. I am sure that there are myriad cases where an arrest without warrant should be valid.
Q I agree with that. I just wondered what your contention was.
Q I don’t understand your position in here, what you have said. I thought that you were arguing to this Court that the arrest was an unlawful arrest, in these particular circumstances, and that, second, even if the arrest was lawful, which you say it was not, the search was of an impermissible scope. Now, is that your position or is it not?
That is what I thought was indicated by your petition for cert., and by your brief here
A My primary focus, Your Honor, is on the search itself. I also take a second position that on the facts of this case, a valid warrant should have been used. However, my primary focus is on the search itself.
Q I understand that, but I am trying to find out, following my brother Brennan’s question to you, whether secondarily, or in whatever order you want to do it, you challenge the lawfulness of the arrest here.
A Yes, that is correct, Your Honor.
Q I thought you did, but if you don’t, I would certainly like to know. As I read your papers, you certainly challenge the lawfulness of the arrest here on the theory that, as the California courts held, the warrant was invalid, that without the warrant the arrest here was unlawful and in violation of the Fourth Amendment.
A If I can clarify, Your Honor, to back up an change the facts a little bit, if the officer had simply put the petitioner under arrest at his home, and taken him down to the station, had that been all that had gone on, I would not challenge that arrest on probable cause.
Q And you would not challenge that arrest on the grounds that he should have obtained a warrant?
A No.
Q Because you say there was ¾ is it your position that whenever the police have probable cause to arrest, regardless of the time factor or any other circumstances, they don’t have to get a warrant? Is that your position?
A That is not my position, Your Honor, but so far as the arrest which involves no search, I don’t think that it is fairly before this Court on this record.
Q I don’t understand that at all.
A Well, you would have a hard time getting a remedy if that is all you had, as far as this case is concerned. You might have a civil action, or something, but you would have a hard time arguing that an otherwise valid conviction had to fall because the arrest was an improper one. We have never held anything like that, have we?
Q No, but involved in this, as I understand it, one of the arguments that the State makes is that the search and the seizure were lawful as incident to a valid arrest.
A That is correct, Your Honor.
Q Now, do you or do you not argue that the arrest was invalid as one branch of your submission to this Court?
A For the sake of argument, Your Honor, I will concede that this arrest was invalid, for the sake of argument here.
Q No, no. I am not asking you to concede anything. I am trying to find out what your position is. I have read your petition and your brief here, and you surprised me by what you said. If that is your position, then that is your position.
A Pursuing the facts of the case, then, after this search, or going back to this search of September 13th, it was based altogether on a charge of burglary of the Money Vault. So far as the record shows, the only thing which was missing from the Money Vault was coins, nothing else. Nevertheless, in this search, a large quantity of coins and medals, tokens, boxes, razor blades, containers, various other non-coin items were seized.
Q Were these the fruit of another burglary?
A This was what later developed, Your Honor.
Q Did the police know it at the time?
A No.
Q They never even knew of the other robbery or burglary?
A The record indicates that Officer Del Coma, who is the central figure here, had heard something of the Pulati burglary, the first burglary, but that ¾
Q He didn’t know what was stolen there?
A I think he knew there were coins which had been taken, but he did not have any detailed information so far as the record shows.
Q If he had known what was stolen in the Pulati case and he encountered it in the house that he searched, in the course of searching for coins stolen in another burglary, would you say he couldn’t seize the fruit of the Pulati ——
A Oh, no. If, Your Honor, he were in the course of a legal search, I think under Marron he would have a right to seize contraband or stolen goods which he happened to come across in the course of a legal search, although I don’t think this was, a legal search at all here.
Q This is your fundamental question, the legality of the search.
A That is correct, Your Honor.
Q Without either a valid arrest warrant or a valid search warrant.
A That is correct.
Q Well, the legality of the search, as I understand your case, depends upon two issues: First of all, the search, I suppose you would argue, was obviously invalid if the underlying arrest was invalid.
A That is correct.
Q Because the only justification for the search is that it was incident to a lawful arrest; therefore, if the arrest was not lawful, the search could not be lawful, regardless of it scope.
Your second point is, even if the arrest was a lawful arrest, this search which is justified only as an incident to a lawful arrest, was far too wide in scope to be incident to a lawful arrest. Is that your submission?
A That is correct, Your Honor, plus on additional point: I suggest that in order to make a search as an incident to an arrest, there should be a showing of the same elements of probable cause thereafter which would have justified issuance of a search warrant in the first place, else you are proceeding with a search which is not justified by as much showing, you are proceeding without a warrant with less showing than you would be had you proceeded with a warrant, the preferred method of procedure.
Q Let’s assume a lawful street arrest of somebody that you have reasonable cause to believe has a concealed weapon and let’s assume that there is sufficient probable cause and that you do stop and arrest that man. Then certainly incident to that arrest you can search him. You would agree with that?
A No quarrel.
Q And if, instead of a gun, you don’t find a gun at all, but what you do find is narcotics on him, right in his pocket, although there was never any ground for a search warrant to search his pockets for narcotics, would you agree or not that that is a perfectly valid search and seizure of the narcotics, even though there was no ground at all to search him for narcotics.
A Oh, certainly, Your Honor. Searches, I think, stand on an altogether different plane, because the officer arresting a person obviously has a primary need to search that man and see that he is not assaulted with some sort of weapon. I don’t think there is any question there. There is an obvious necessity.
Q Well, let’s see, then, Mr. Monroe. This gets down, then to, except for searches of a person — except for searches of the person ¾ there has to be both probable cause to arrest, and independent of the arrest, probable cause to search.
A If I may, Your Honor, I wouldn’t say really that it is independent of the probable cause to arrest. Rather, turning to ¾
Q Well, in addition to, rather than independent.
A There has to be that other element of some reason to think, if I, as the officer, am going to search the place of arrest, then I have to have some reason to think —
Q Well, all of our cases so far, I gather, have sustained searches, so long as there was probable cause to make the arrest and the search was incident to that arrest, whether or not the officers had knowledge of what it was they might pick up. Would that be so?
A I think there is a strong suggestion in the cases, Your Honor, the cases which have sustained searches, that this Court, in fact, has over the years sustained those searches which have proceeded in this context with a valid arrest warrant and a very strong suggestion that the officer did have knowledge that “What I want at least has a likelihood of being there.”
It becomes almost impossible to explain the exploratory search cases unless there is something of that nature.
Q Well, what more do you suggest we need if you have probable cause, or a warrant to arrest a fellow for stealing some coins, and you go to his house and arrest him in his house? Do you suggest you need more reason to search his house for the coins than the fact that you think he stole them?
A That is correct, Your Honor.
Q You have to have some reason to believe that he has not only stolen them but that he has actually got them there?
A That is correct, Your Honor.
Q And you suggest our cases support that submission?
A Yes, Your Honor.
Q Has that question ever been explicitly addressed in any of our opinions?
A No. The cases in this Court ¾
Q You get more comfort out of the pre-Harris cases than you do out of the Harris case.
A The Harris case is not comforting at all, Your Honor.
Q Or Rabinowitz.
A No. Rabinowitz, I think, is squarely an issue, so far as its language, the warrant is not required.
Q Really, the essence of your position is that you want us to re-examine Rabinowitz and Harris, and that is a perfectly understandable position.
A That is correct.
Q But that is the guts of your case, isn’t it?
A That is correct.
Q You think your re-examination would go so far as overruling.
A I don’t think it would be necessary. Let me clarify my position here, too, because, of course, when one suggests a re-examination of Rabinowitz, the mind automatically turns to the revival of Trupiano. I am not really suggesting this, because I think Trupiano was a very difficult case on its own facts. Trupiano, it may be recalled, involved a valid arrest of Antonio, who was then committing a felony, and the still, the paraphernalia for committing the felony was in plain view.
I think possibly Trupiano went too far in not permitting the still to come into evidence. There was, after all, a valid probable-cause arrest, and this still was seen in the course of making that arrest. Trupiano raised some, I think, very definite problems there.
In terms of results, the cases in this Court which have generally been supported ¾ it might be noted here, too, that Rabinowitz so often cited as a non-warrant case, was a case, in fact, in which there was a valid arrest warrant and there was every reason to think the very property for which the search was made was in the place which was searched. Every element which would have been necessary to get a search warrant was known to the officer and was almost unquestionably present.
The other cases which have supported similar searches, United States versus Ventresca, Rugendorf, Jones versus the United States 362 U.S., Abel versus U.S. 362, of course Rabinowitz which was with a warrant, U.S. versus Lefkowitz, and Marron versus U.S.
Q I take it, then, that your position certainly would be that if the officer went to the magistrate and said, “I have probable cause to believe that so-and-so stole some coins,” and if the magistrate agreed with him that he had probable cause he nevertheless couldn’t automatically also get a search warrant?
You couldn’t say to the magistrate, “Well, you agree with me that I have probable cause to believe that John Jones stole these coins, and you are giving me the arrest warrant for his arrest; therefore, give me a search warrant for his house.” You would say he would have to have more than that to get a search warrant?
A Certainly, Your Honor, because he would have to particularly describe for the magistrate the place to be searched and the persons or things to be seized.
Q Well, it describes the house.
A But the person or things to be seized.
Q He also says the coins may be there.
Q He says the coins that were stolen here, the description of the coins.
A But I think under Camara he would have to give some reason for thinking that they were there.
Q Well, because the man stole them, and that is where he lives.
A If this were before a magistrate, and the magistrate passed on it and felt that there was a sufficient showing, taking all of the facts in such-and-such --
Q Well, I know, but would you agree there was a sufficient showing? If you agreed there was probable cause to arrest and you agreed that the arrest warrant, validly issued, would you agree there was then probable cause to issue the search warrant to search his house where he lived?
A Cause shown is merely enough to arrest, if that is the cause shown, I do not think that is enough to search his house.
Q What more must he show?
A Some reason for thinking that ¾
Q That he stashed the coins there instead of someplace else.
A That is correct, Your Honor.
Q Well, suppose the officer says, “I would assume that he has them in his home.”
A If the officer assumed that they were in his possession?
Q If he told the magistrate that. Of one thing I am sure. He did rob this place. I am certain of that, and I assume that the coins will be in his home.
A Let me turn to the facts in this case—
Q Isn’t it your position that he has to so more than assume that they are there? Isn’t that what your position is?
A Oh, certainly. There has to be something other than an unfounded assumption.
Q That the coins are there; like somebody saw him put them there?
A Or he had conducted himself in such a manner as to purport belief that they are there.
Q Going back to the second point, how far, when he is arrested, do you go beyond search of a person? The room?
A I think there can be no question, Your Honor, about the validity — let me separate, first of all, searches and seizures. Many of the cases treat them as one and the same. I think there can be no question about seizure of evidence, instrumentalities, contraband, in plain view. Searches of the person, of course, are conceded.
As far as searches beyond that it is very, very hard, I think, to find a logical stopping point, because we start with Rabinowitz, which permitted a very narrowly circumscribed search of one room. Now we are searching entire houses.
Q You would draw one line on the attic, wouldn’t you?
A Sir?
Q You would draw one line in the attic? You would draw the other line at his person, and then you wouldn’t try to draw a line anyplace else?
You would say certainly he couldn’t search the attic.
A I think, Your Honor, that the only logical line that can be drawn is the person, and those things which are in plain view of the person at the place of arrest. When it involves going into containers, so to speak, then I think the legitimate scope of the search has been exceeded.
Q What happens if he arrests him, takes him down, and announces to everybody in the house that he is arresting him for stealing these coins, and then gets a search warrant. Do you think the search warrant would be worth anything?
A It seems to me, Your Honor, in looking at the facts of this case, there were three officers. It would have been a very simple thing, if they wanted to do so, to leave one officer there and obtain a search warrant.
Q Yes, but you say he couldn’t get one anyway, if he went after it, because he had absolutely no probable cause to think the coins were in the house.
A That is true, Your Honor, on the facts of this case.
Q So the officers ought to leave. They just aren’t going to get to search ever.
A The officer describes this as a general search. He wasn’t searching for anything specific, so it seems to me clear on his testimony that he was exploring this house.
Q Just for the fun of it. He wasn’t looking for coins as the product of the crime for which he was arresting him?
A I questioned him on that and he didn’t so testify.
Q Isn’t this case somewhat confusing because there were two burglaries involving coins, and the police officer went there with probable cause to arrest for one of them.
A That is correct, Your Honor.
Q He had no knowledge of the other one, and he made a general search of the whole house, and found nothing in connection with the burglary on which they had probably cause, but found some things on the other burglary for which they had no probable cause when they went there, and had no information.
A That is true, Your Honor. This is a hard point here, and I think it bears emphasis that the case on which they had probable cause was coins and coins alone, so far as the record shows, and the seizure was of medals, tokens, boxes, wallets, razor blades, things which weren’t even in the same class.
Q This is something like the facts in Mapp, where they went looking, I think, for gambling apparatus, or something of that kind, and they made a general search and ended up finding some obscene literature in a trunk in the place. That would be somewhat comparable to this, wouldn’t it?
A It is, Your Honor; yes.
I see that my time has expired.
MR. CHIEF JUSTICE WARREN: Mr. Monroe, we have taken all your time by asking questions, and I think we would like to hear something about Rabinowitz and Harris, because that is the thrust of your case, and I suggest that you may have five minutes for rebuttal, if you want, after hearing from the other side.
MR. MONROE: And, of course, you may have five minutes extra if you wish it, too, Mr. George.
ARGUMENT OF RONALD M. GEORGE, ESQ.
ON BEHALF OF RESPONDENT
MR. GEORGE: The issue in this case basically are was the search, which was an incident of the concededly valid arrest on probable cause, rendered unreasonable solely by virtue of the fact that it extended beyond the room in which petitioner was arrested.
Secondly, was it rendered unreasonable by virtue of the fact that there was a delay of some six hours in executing the warrant of arrest.
Third, was it rendered unreasonable solely by virtue of the fact that it was conducted as an incident to an arrest on probable cause, instead of by way of a search warrant.
Q In what did the California court hold that the warrant was invalid?
A The California Supreme Court, in this case and in the companion case of People versus Sesslin, held that the procedure which had been followed in the State of California for many, many years, of issuing warrants upon complaints which did not set out the factual elements of probable cause, were invalid, but the court held that, although this arrest warrant was invalid, there was ample probable cause —
Q I understand that. Well, what about the second point that you listed there? Why do we have to consider that, the delay of six hours in executing a warrant? Is that involved in this case?
A That has been raised by the petitioner. We consider it a purely frivolous point that is hardly an unreasonable delay. But petitioner contends that the execution of the arrest was deliberately delayed so as to permit the officers to search the house.
Q You mean, assuming that the warrant was otherwise valid, petitioner argues that its effect was spent, or it was invalid or ineffective because of the delay. Is that the point?
A Yes. But the State Supreme Court specifically upheld the arrest on the theory of probable cause apart from the warrant. I would submit that one could not find a case on which there was more probable cause for arrest.
Q Did they search the house before Mr. Chimel came back?
A No, they did not.
Q They waited for him. They went to the house, found he wasn’t there, wanted to arrest him, and they waited for him.
A The waited approximately 10 minutes.
Q They arrested him, and then the search followed that, is that it?
A That is correct.
Q I take it that your point is that the arrest was valid because there was probable cause, and that no warrant was necessary.
A That is correct. The officer —
Q Is there any case that you can think of in which a warrant is necessary and can be lawfully obtained consistent with the Fourth Amendment? In other words, doesn’t this position really read out of existence — read out of existence — the need for a warrant?
A No, it does not.
First of all, may I ask Your Honor for a clarification? Are you speaking of warrants for arrest when you speak of search warrants?
Q Let’s take the arrest warrant. First, is there any case where an arrest warrant could be obtained under the Fourth Amendment and would be necessary on the theory in which this case is being argues by you, and I expect by your adversary?
A Our position is no.
Q In other words, Police never need a warrant. If they have probable cause, they can get a warrant, of course, for purposes of the Fourth Amendment; but they don’t need it, because if they have probable cause, they can go ahead and arrest.
A That is correct.
Q So all this business of going to a magistrate in the terms of the warrant is wasted time.
A I don’t think it is wasted time, and the officer here certainly didn’t think it was wasted time. He testified expressly that it was his habit that whenever possible —
Q I know. Well, maybe it is a nice thing for officers to do, but no legal requirement.
A That is correct. Trupiano said that.
Q Second, turning to the search warrant, your position is exactly the same, isn’t it; that is to say, wherever there is probable cause to search, there is no need to obtain the warrant.
A No.
Q On the other hand, if there is not probable cause, the warrant cannot be obtained.
Q You don’t say that, do you?
A That is not our position, because clearly a search may not be made upon probable cause. A search may be made only as an incident to an arrest upon probable cause, and we would submit that whenever there is a proper arrest, and that the search is (1) reasonable; and (2) incident to the arrest, that then there is no need to obtain a search warrant.
Q Can you suggest a situation to me in which there is probable cause for arrest and not probable cause to search.
A Yes. One situation which comes readily to mind is the arrest of a person — let’s say Mr. Chimel was arrested at a friend’s house. Now, there would be the right to search incident to arrest, but perhaps not the same type of search as you have here, because it would not be predictable that the stolen coins would be at this friend’s house, or a public place.
Q What you are really saying is that there may be a difference in the permissible scope of the search, but that whenever there is probable cause to arrest, there is probable cause to conduct some sort of search. Is that what you are saying?
A Yes, that is our position.
Q How far could they go on the searching in the hypothetical that you just gave?
A That might depend upon who this friend was, whether he had some connection with the burglary or not. Now, under current law, there doesn’t seem to be any definite limitation. This Court has always said that we must view the legality of the particular search in light of its reasonableness and the facts of the case, and there can’t be any mechanical standards here.
I think what is significant is that the Fourth Amendment, as it was drawn up by the framers, does not confer a narrow grant of the power to search. What it does, it restricts the power to search, the existing and recognized power to search, and prohibits only search that are unreasonable. In turn, that determination of reasonable is a very practical concept and it has been since it evolved under common law.
Q May I break in just one moment on the other point?
Assuming that they know, they are confident that this man committed this robbery, and they see him in this side of town, going toward his home. Is it possible that some detective would say, “Well, if we arrest him here, we can only search his person; but if we let him go home, and then arrest him, we can search the attic, the garage, and anything else”? Is that possible?
A It is possible that officers would do that.
Q Well, what is different about that case and this case?
A I think it is improper when the officers do that. We concede that, and there are cases so holding, but it is improper.
Q Well, didn’t they deliberately wait at home for him? They knew where he was.
A No, they didn’t. If I may answer your question by chronicling the events that day, I would like to point out that the arrest warrant issued at 10:30 in the morning. The officer submitted the arrest warrant which he had obtained and which, under current California law was a valid arrest warrant.
Number 2, the Warrant Detail of his department, this was customary practice of his department, and this was done as a general rule, without exception, unless there was a definite information that the suspect was about to flee, the Warrant Department processed the warrant until 2:00 o’clock that afternoon.
Now, both prior to 2:00 p.m. and after 2:00 p.m., the officer was involved in other burglary investigations. He had a monthly caseload of 45 to 80 burglaries. He was involved with those burglaries. He was not required, it is out position, to drop all other business of an enforcement and investigatory nature in order to serve that arrest warrant.
All right. Then it was getting on in the afternoon. He was busy with these other things. He might well have missed the petitioner, who arrived home at 4:15. He also testified that he had a desire not to embarrass the petitioner at his place of employment.
Now, had the petitioner been released on bail, as he was perhaps the same afternoon, but very shortly after — the record isn’t completely clear — and had the case not gone to trial, the petitioner’s employer would never have learned of the arrest, petitioner would not be fired, there would not be any consequence. His wife would have learned of it in any event.
Q So once again we find the police are only interested in doing favors for the defendant.
A I would not state that as a general proposition. I would not be so naïve as to hold that that is a universal rule. However, I would submit that it is unparalleled, almost. It is impossible to find a police officer who could have given more attention to the observance of the defendant’s constitutional rights than did this officer. He did not arrest —
Q There were three officers.
A There were two officers from Santa Ana who accompanied him, and that was required under California law because the place of arrest, petitioner’s home, was outside the investigating officer’s jurisdiction.
Q Well, that is three.
A Under California law, then — it has since been changed — Officer Del Coma would had the right to go outside the City of Orange to arrest petitioner at petitioner’s Santa Ana home.
Q But regardless, there were three.
A There were three.
Q They went to the man’s home.
A They went to the man’s home.
Q And waited for him.
A And waited 10 minutes for him?
Q And after he came home, they shook his house apart?
A They did not shake his house apart. They searched the house very carefully with petition’s wife. They asked her to accompany them. They did not open drawers. They did not ransack.
Q They were looking for the coins from the robbery.
A That is correct.
Q Which they didn’t find.
A No, that is not the case. They only — and I wish to correct prior statements on that that were made in the preceding argument.
The record shows that no coins were positively identified as coming from that burglary, but that is not to say that there were no coins seized. The inference is very strong that many of the coins were from the Money Vault burglary. We have set out an inventory of the coins seized in our brief as an appendix, and if you compare those items to some of the items seized from Mr. Slocum’s store during the burglary, there is a great similarity. But we know that coins are, by their very nature, almost fungible items, with a few exceptions, and it is very difficult to say “That is my nickel.”
Q Mr. George, put it this was: They knew exactly what they were looking for — coins.
A Yes.
Q And they seized items other than coins, which they did not know at that time were stolen.
A No, that is not the case. Mr. Monroe —
Q Did they know about this other robbery before then?
A There is some indication that the arresting officer had some knowledge that there was another burglary, but he had no detailed information, as Mr. Monroe pointed out. There was not a wholesale —
Q Wouldn’t he have needed that to have made the search?
A No, he would not have needed that other information. He was looking for one thing only, and that was evidence, stolen fruits of the burglary for which he was arresting the petitioner.
Q You suggest that everything he seized at that time was the kind of thing that might have been stolen from the Money Vault? Is that your argument?
A Exactly. I would like to clarify the record on that. There was some confusion.
The item seized consisted of coins, coin paraphernalia, and one item that does not fall into that category — a quantity of razor blades, and why razor blades? The officer was asked that. Well, because petitioner had said at the time of the arrest, “These razor blades are part of the coin transaction.”
Now, that is susceptible of the inference that they could have been part of the Money Vault burglary transaction, but there is nothing that is not reasonably apparent as to be part of the Money Vault that was seized. It was a very limited search that was confined by the objective of the officer, which was a permissible objective, namely, to return the stolen property. This was three-fourths of the man’s inventory that had been wiped out, and the officers merely wanted to return that property to their rightful owner, and their search was 45 minutes and was confined to that.
Now, petitioner has implied that this was a wholesale ransacking of the house. This isn’t true. The record indicates unequivocally, and we have set it out in detail in our brief, that there were only two rooms that were really searched in the sense of what a search is, prying into hidden places.
Q Which rooms were they?
A They were a bedroom, and a second bedroom —
Q How large a house was this?
A This was a 3-bedroom tract home.
Q Tract? What kind of a tract?
A Tract-size home. That is how it was described in the record.
Q That is a new word to me.
A A suburban house. These two rooms were searched in the sense of drawer being opened an petitioner’s wife being asked to move the contents of the drawers to one side, to offer an innocuous explanation for any coins, and the officers left may coins. They only took those which appeared to be connected with the Money Vault.
Now, these other rooms, the officer testified, he glanced into them. It was a cursory search. He looked into the garage. He looked into the child’s room. But this was not a search. The search was confined to two rooms, its objective was perfectly permissible, and the search was of 45 minute’s duration.
Q Mr. George. May I ask you this: Is your desire to broaden out the right of search? Does that indicate a desire on the part of law enforcement in California to wipe out the necessity of warrants, search warrants, warrants of every kind, in order to go in and search whenever they want to do so?
A No
Q I will tell you the reason I ask that. It is because in one case we had here a while back, it was stated to us that in the great City of Los Angeles, the Police Department got out, I think it was, fewer than 20 search warrants in an entire year.
A That is incorrect information.
Q How widespread is the practice of getting search warrants in Los Angeles?
A I will indicate that. I want to preface that by stating that the California Supreme Court, in its Keener decision, which we have cited, has evidence a policy encouraging the use of warrants. We cite an article in the official publication of the California Peace Officers Bulletin encouraging officers to use search warrants, an article by the District Attorney.
Q How prevalent are they, let’s say, in the City of Los Angeles?
A The figures we have for the Central District of Los Angeles, and some of the neighboring judicial districts — this is not the whole county — is 225 search warrants issued last year.
Q But that included territory outside of Los Angeles.
A Out of the city, certain parts; yes. It is not county-wide.
Q The Los Angeles Police have nothing to do with those.
A That is correct.
Q How many in the City of Los Angeles?
A The city of Los Angeles, I would say approximately 200, I would think. Most of those in the Los Angeles Judicial District are in the City of Los Angeles.
Q Most of them, you say.
A Yes. Now, this is a thirteenfold increase since 1954, which is the year that the California Supreme Court anticipated this Court’s decision in Mapp and required the exclusionary rule to be followed in California.
As Mr. Justice Harlan pointed out in his dissent to the Chapman case, California has been in the forefront of all the states in laying down rules protecting the rights of criminal suspects both in the field of confessions and search and seizure. The state has encouraged the use of warrants and they are being used increasingly. Each year the number increases.
This officer here testified he will obtain an arrest warrant, as he tried to do here. The law was changed after he obtained it. It was, his policy to get one.
Q What did they get in the house?
A They got coins, coin paraphernalia, and this one item of a few razor blades.
Q Was that identified by anybody, as belonging to the place that had been burglarized?
A There were two burglaries, of course. Some of the coins were definitely identified as coming from a second burglary because they were unusual coins. They were odd metals. We have set them forth. Things like Alaska centennial coins, or something like this, that the Pulatis recognized immediately, or else a container of coins with Mr. Pulati’s handwriting crossed out.
So, of course, those were able to be identified, but they were 35 coins out of this quantity, a large quantity, of coins. The other coins, there was every strong inference that they were one and the same from the burglary for which the officers had made the arrest.
Q Did the defendant testify?
A The defendant did testify. He gave an explanation that was so inherently improbable of his guilt that we would submit that it afforded a consciousness of guilt evidence of his quilt. It was a highly unlikely explanation.
Q What did you say? He testified?
A He testified in his own behalf and gave such a contrived explanation of how he had come into possession of some of these coins —
Q Did he admit he had come into possession of them?
A Yes, he did; and he said that he had purchased them from a man, and he didn’t know whom, and he didn’t collect medals but he had bought these medals anyway, and it was a very obvious attempt to fabricate an explanation for them. In fact, he changed his testimony with reference to one coin, that he didn’t know how he had obtained that, but later on he suddenly remembered that he had bought it. He gave no satisfactory explanation.
Q Then the testimony that he was in possession of them is without dispute?
A That is true; yes. In fact, there was a stipulation between Mr. Monroe and the District Attorney who tried the case that the coins identified by the Pulatis, found on the premises, were the same coins that were at the Pulatis’ home on the night of their burglary. That is in the record.
Q Mr. George, was he tried for both burglaries?’
A He was, and was convicted of both.
Q He was convicted of both.
A Yes, he was.
Q Although there was no identification of the coins from the second or the burglary on which they had had probable cause?
A Well, no. There were no coins found at petitioner’s house that were tied into that burglary positively, but there was another coin, a very unusual coin with four faulty markings, that two months, I believe, after the search, petitioner sold to a coin dealer, and this was a coin from the Money Vault burglary.
There is a great length of testimony in that regard and that was established clearly. It was a very unusual coin.
Q This was a single trial of both burglaries??
A Yes, it was. Both accounts were joined.
I would like to address myself to the reasonableness of the search in light of all of the officer’s conduct here. The officer had the admissions of the defendant to various civilian witnesses that he had committed the burglary in questions. The defendant was negotiating to return the coins. The officer attempted to obtain an arrest warrant, conducted a great many sessions with the District Attorney’s office, before he would deprive petitioner of his freedom.
The District Attorney’s office said, ‘Well, we think you have enough information, but go out and get another one. Talk to this witness.” He did that. Only then did he decide to make the arrest.
The search was incident to the arrest, clearly. It was the same time and place. The objective was as legitimate as any imaginable, to return thousands of dollars of stolen coin to their true owner. Only coins and coin paraphernalia that appeared to be connected with that particular burglary were seized
The manner of conducting the search was inherently reasonable. He had to bring along Santa Ana officers to legitimatize his search, since it was outside of his jurisdiction. He announced his entry, identified himself, asked whether he could enter, treated the defendant with utmost courtesy. He informed the defendant of the warrant, showed it to him, let him read it.
He asked whether he could search, although consent was not given. But he informed the defendant that he had the right search anyway.
The defendant’s wife was the one who opened the drawer so there would be no ransacking. The officer proceeded as quickly as he could. He took only 45 minutes to search. And then the officer took the defendant to the station and the two of them compiled an inventory of all of the seized property, defendant was shown the inventory, and he signed a copy.
Now what can be unreasonable in this search? Certainly not the scope. The scope was certainly proper. The objective of returning the stolen coins to their owner would not be served by arbitrarily saying, “Well, you can search this room, but not that one; this cupboard, not that one.” If we started setting down standards like that, the police and the courts would certainly be confused.
What size of a room could you search? What circumference around the defendant?
We submit that the Rabinowitz standard of reasonableness under all the circumstances is the proper standard. Especially in light of the fact that we have a State conviction here. Under our Federal system, and under the decision in Ker, the States may develop workable rules of search and seizure. That is what California has done.
Q What is your submission as to why an officer, when he arrests someone in his house, should be able to search any more broadly than the person of the defendant, to search for weapons or something like that, to guarantee the officer’s own safety, or to just seize what is in plain sight? What is your basis for saying that he should be able to search for the fruits of a crime?
A Well, our legal basis is, first of all, the Agnello decision. The full citation is in our brief at page 392. It indicates that fruit of the crime may be searched.
Q Anywhere in the house.
A It doesn’t speak in terms of arbitrary geographical limitations.
Q I know, but what is your submission. You should be able to search for the fruits of the crime anywhere in the locality where you arrest the defendant?
A Depending on the facts of the case. Let’s say we have a television set involved here.
Q Well, why should you be able to search for the fruits of the crime, though, without a warrant?
A Because the objective of returning them to their owner is certainly a legitimate —
Q Well, you can get a warrant and do that.
A All right. In this case, we submit —
Q You know what the fruits of the crime are. Why don’t you come armed with a warrant for a search?
A It is easy to speak in terms of one case and say “Well, the officer could have taken the two or three hours to obtain a search warrant,” and that is what Commentator states it takes under ideal conditions to obtain one. But if you multiply this across the country, the last year for which there were statistics, there were 1,600,000 burglaries committed in the United States alone. Now, if you multiply that paper work —
Q I know, but if he had gotten a search warrant here, the search warrant would have specified only the fruits of the first robbery, isn’t that right, because that is all this policeman had any cause to suspect was connected with Chimel, isn’t that right?
A That is true, but —
Q By not getting a search warrant — just a moment — by not getting a search warrant, on your submission the police officer was able to make a broader search than he would have been able to make if he had gotten a search warrant. Am I right or wrong about that?
A I would say we do not agree with that, and I will tell you why.
The officer thought that he was only seizing coins from that burglary. There were many boxes and containers of coins. He could have delayed the defendant hours had taken each box, sorted out a few medals that apparently that would not have been involved with one burglary, and gone through — the defendant would have been standing there all day.
If he saw a box that appeared to contain coins from the Money Vault burglary, it is our position he was entitled to take that container, that box. The inventory of the items seized indicates that there were many, many, there were perhaps hundreds or thousands of coins seized. There were many, many containers. The officer could not pick through each one individually. That would have been an impossible task.
Q But if he was searching for, or if he had had a warrant for certain coins, he might have been able to search anywhere in the house for those coins.
A That is true.
Q And if he encountered some other coins that he recognized as having been stolen from someone else, he could have seized them anyway, couldn’t he, under Harris and some other cases?
A Yes.
Q But you still haven’t really gotten around to saying why you think that an officer should be able to search a house without a warrant for the fruits of a crime. You said that it would be a lot of trouble. So far you have said that much.
A Yes. Now, we recognize —
Q Is that it?
A No, that is not all. I don’t think you can just say that it would be trouble. You have to, under the Fourth Amendment, we submit, look at it in terms of what is reasonable, and as part of reasonableness this Court has always looked at the practical effect on law enforcement.
Q Did you have probable cause to get a search warrant?
A Yes.
Q A very simple question: When the officer went to get the arrest warrant, why didn’t he also ask for a search warrant, because you have already admitted that one of his purposes was to retrieve this money.
A Yes.
Q Well, why didn’t he write this other piece of paper?
A Exactly. It is so simple that one wonders why not, with an officer who is as eager to protect the defendant’s constitutional rights.
That answer is, under this Court’s decisions, specifically Marron and Stanford versus Texas, there is a very stringent requirement of particular description. It would not have been enough for the officer to describe the property to be seized as “coins and coin paraphernalia stolen from the Money Vault.”
Q I thought you said you had enough to get one.
A Yes, but what would the officer have had to do to get one? He would have had to describe these coins in great detail.
Q There you are.
Q But what you are saying there is the officer has more latitude, lawfully has more latitude if he does not get a warrant than if he does get a warrant.
A No, we are not, because the officer could have obtained a search warrant. It might have taken him two weeks to do it because he would have had to distinguish the stolen coins from the coins that would be found on the premises. He knew that petitioner was a coin collector.
Q But realistically, though, do you think officers under our cases would get a search warrant when our cases appear to hold that if you make a valid arrest on probable cause, you may search incident to an arrest? Officers don’t ordinarily come armed with — let’s assume for the moment that it would have been very easy, very easy, to get the search warrant, automatic, five minutes.
A Yes.
Q Officers don’t ordinarily come armed with both search and arrest warrant, do they?
A They do sometimes, and the reason —
Q I said ordinarily, Do they?
A It varies according to jurisdiction. I wouldn’t say ordinarily across the country, no; but I think that there are incentives to obtain a search warrant that will make officers get them, and I would like to mention some of those to the Court.
There is a presumption of legality that attends a search effected by a search warrant. In many jurisdictions, and in California, if the officer does not have a search warrant, the search is presumed to be illegal in California, and the burden is on the prosecution to obtain a search warrant, a justification for the search. It must show that there was probable cause and that the search was incident to an arrest.
Secondly, the fact that there was a search warrant will insulate the officer from civil and criminal liability that will not be the case if there is not a search warrant.
Finally, or rather additionally, there is also an opportunity for a broader search if there is a search warrant. The officer will be able to search outbuildings and throughout the premises and take as long as he wants if he has a search warrant. There will also be the possibility of search in the absence of the suspect.
If he doesn’t arrest the suspect at the house, of course, he couldn’t search incident to an arrest. So this way, with a search warrant, he can search the house in the absence of the defendant. If there are multiple suspects, as there often are in narcotics raids or other conspiracy crimes, let’s say, he can search many places. The police force can simultaneously, even if one or more defendants are absent.
Q Well, now, without the arrest, this search could not have been made. You agree with that.
A That is correct.
Q Without a warrant, that is.
A Without the arrest.
Q What difference, then, would the State suggest it makes in terms of the permissibility of this search? What difference does it make that the arrest took place? I know you can say, “Well, the cases hold that,” but those cases are under attack here. I just wonder why you think the arrest, just the fact of arresting a man in his house, gives the officers the right to make a search of the bedroom that otherwise they would not have had in the absence of arrest?
A Because the officer had sufficient information to make the most basic invasion of the defendant’s privacy that one can imagine, the seizure of his body. Now, how much more of an invasion of privacy is it for the officer to also seize items around the defendant?
Q Well, I know, but if you had arrested him down at his office and made that basic invasion of privacy, it would be very difficult to go and search the house without a warrant.
A True, but you could have searched his office.
Q I know, but you couldn’t go and search his house.
A Yes, but there is nothing to indicate that it was maneuvered.
Q What difference does it make whether you arrest him in his house or in his office as to whether or not you can search his house without a warrant?
A Well, there are various justifications. He might have weapons there. He might try to destroy evidence.
Q I know, but I understand the State to say that the officers have a right to search for the fruits of a crime.
A Yes.
Q Anywhere in the house that fruits of that sort might be. That is your submission.
A Of that sort. It is different for a television theft.
Q You wouldn’t look in a bedroom drawer for a television set.
A Correct.
Q But you think they could have looked anywhere in the house that coins might have been hidden.
A Yes, where coins could have been hidden and, of course —
Q I am surprised that you don’t suggest that since you arrest a man in his house, confederates, family, and everyone else is alerted and that it might be essential, if the officers have probable cause, to make the arrest, and probable cause to believe that he has the fruits, or that they are somewhere, that there is some kind of urgency about looking for them, for the fruits, before they are made off with.
Well, of course, that would support the officer’s not having to leave and come back with a warrant later.
Q But it doesn’t get to why they didn’t get a warrant in the first place, does it?
A Well, what it does is, the practical burden that would have been imposed in this officer to describe thousands of coins with sufficient particularity, as would be required under this Court’s decision, to distinguish them from the defendant’s coins —
Q In what decision do you say we said that?
A Marron.
Q Did we go that far?
A Marron describes the —
Q Your submission is that to get a warrant, it is necessary to specify every coin, hundreds of coins?
A At least to the degree necessary to distinguish them from the defendant’s own coins, which the officers knew would be on the premises, and because there is authority, and we have cited it in our brief, that the description must be adequate to segregate lawful property, the defendant’s own property, from the items to be seized.
That is why the officer did not get a search warrant. Very frankly, off the record, I asked the officer, “Why didn’t you,” as Justice Marshall asked, “if you were down there and you executed this affidavit for the arrest warrant, why didn’t you also get a search warrant?” and that is it. He didn’t want to get a search warrant that would get knocked out if it just described the coins in a general way.
Q Mr. George, my problem is, I assume that the officer knew he was looking for.
A He did.
Q And when he did the search, he was looking for these coins.
A Yes.
Q And the only problem that you have and the officer has, is writing down what he already has in his mind.
A He would have had to write down the description that the victim told him, “Well, this is my coin because it is this age, and maybe it is marked up this way, and therefore I know this nickel from somebody else’s nickel.”
Q He had that information. It was just a question of putting it on paper.
A That would have been quite a difficult problem. The officer chose to —
Q You mean difficult physically to dictate it or write it.
A Well, both, and also to reduce certain conceptual matters to writing.
Q Could there also be the possibility that once he puts it down on paper, he would be restricted to that and he wouldn’t be able to pick up something else? Would that be a problem?
A That didn’t trouble him, because he left coins on the premises. He left many, many coins.
Q There simply is no reason why he shouldn’t have gotten a search warrant, is there?
A Oh, there definitely is. It would have been an impossible task for him to do it, almost.
Q Impossible for him to write it?
A Considering the number of coins. They’re listed in our appendix here. There are hundreds, if not thousands, of coins.
Q And he couldn’t write it?
A This would have been an unreasonable burden —
Q Oh, it is an unreasonable burden for a police officer to write.
A In certain situation, to give this kind of a description.
Q I understand your position.
A It would be like describing the grains of sand on a beach.
Q Mr. George, if they couldn’t differentiate at the police station, or at the court when they were getting a warrant of arrest, what coins they were interested in, how did they differentiate when they were in the house as to what coins they would take and what ones the would leave.
A The officer apparently had a general description, at least, of particular types of coins right with him, and if he saw a particular container —
Q Couldn’t he have given that to the judge?
A It might not have been sufficient. Of course, this Court has been very stringent. If you don’t dot your “i’s” and cross your “t’s” —
Q Because he didn’t think that was sufficient information that he had, he thought he couldn’t get a search warrant, so he thought he would do it without one.
A He thought it was sufficient information. He thought that it would have been very, very difficult to meet the burden of setting it all out in writing and having it stand up. He thought it wasn’t necessary in view of this Court’s decisions stretching back many, many years, that a search is reasonable if it is incident to an arrest. That is why he thought that he did not have to.
A Mr. George, may I ask you this: When you and I were discussing the number of search warrants, I thought you indicated that someplace in the record here there were some figures on that.
A No. Not in the record. The only figure related to that is the number of burglary investigations that Officer Del Coma himself had for a month, but the number of search warrants —
Q But you told me something like 200 in the Central District of Los Angeles. You don’t have any figures like that in?
A I have only a letter from the District Attorney’s office. I thought the Court might be interested in that point and I inquired.
MR. CHIEF JUSTICE WARREN: Would there be any objection, counsel, to including that?
MR. MONROE: None whatsoever. I also have some figures.
MR. CHIEF JUSTICE WARREN: Very well. I would like to have them. It might not be relevant, but it would be interesting anyway.
MR. GEORGE: May I file with the Court the letter that I received from the District Attorney’s office?
MR. CHIEF JUSTICE WARREN: Yes, please.
Q Mr. George, I wanted to ask you one question. You might not have time to do it between now and 12:00, about a minute and a half.
You said many times that they had probable cause to believe he was guilty and that justified an arrest.
A Yes.
Q Could you state briefly what evidence there was that they had?
A Yes. The defendant, prior to the burglary itself, had approached the victim and said, “How would you like to have you place knocked off,” and “Do you carry insurance,” and all of that. Shortly before the burglary, just a few hours, he told a friend, “I have a big job going. We are going to knock off a coin shop, maybe $50,000 or $60,000 are involved.”
Q Is this a pawn shop.
A A coin shop. Then shortly afterwards, he told the same friend, “Well, we broke through the two walls and we came across the wires, but we didn’t really go through with the job completely.”
Then the next day he told the fellow, “Oh, well I was just kidding. Don’t believe what I said.”
Then he told another person after the burglary, “I am involved in the Money Vault Burglary. I may be going to jail on that.”
Then he negotiated with the police for the return of the coins. This man broadcast all over town that he —
Q He negotiated for the return of the coins?
A For the return of the coins: yes.
Q How do you mean “negotiate”?
A He and another suspect, and an attorney who the record indicates was representing both suspects, negotiated for the return of the coins for a civil release.
Q Actually negotiated at the police station.
A At the police station.
Q Before arrest.
A So this man’s guilt and the probable cause was beyond reasonable doubt. I cannot imagine a case with more.
Q He did claim, though, that he had bought these things, did he not? He did not admit to any burglarizing. He claimed that he had bought these from somebody, fictitious or otherwise.
A He gave a very unlikely explanation: yes.
Mr. Chief justice warren: Very well. We will recess.
(Whereupon, at 12 Noon the argument in the above-entitled matter was recessed until 12:30 p.m. the same day.)
(The argument in the above-entitled matter resumed at 12:30 p.m.)
Mr George: May I ask leave for one minute?
Mr. Chief justice warren: You may have one minute.
FURTHER ARGUMENT OF RONALD M.GEORGE, ESQ.
ON BEHALF OF RESPONDENT
MR. GEORGE: Thank you very much.
One point that I wanted to make in concluding was that the issue here under the Rabinowitz test is not really whether or not it is the police officer or the magistrate who is to make the decision to arrest and search; but rather, whether it is the magistrate who will decide it before the search or the magistrate after the search, because, of course, as this Court has noted, it is the exclusionary rule which is the most effective means of deterring unreasonable search and seizure.
As we have attempted to point out in our brief, California affords many, many opportunities at all stages of the proceedings to invoke the exclusionary rule and that means has certainly been effective, if not more effective, than the somewhat cursory examination which is given prior to issuing a search warrant.
I want to note that I did find the letter, which I will file with the Clerk. It does not cover just the City of Los Angeles. It covers the entire County of Los Angeles, those search warrants issued by the District Attorney, but not by other law enforcement agencies.
Q What does it show?
A It shows that a total of 225 search warrant issued by the District Attorney of Los Angeles County during 1968.
Q A county of 7 million people.
A That is true; approximately 7 million people. But this does not cover the various other law enforcement agencies in the county which have also issued search warrants.
Q We may assume. I suppose, that there were many, many more searches than that.
A Search warrants?
Q No, searches.
A Searches. I think that is a fair assumption.
Thank you.
mr. chief justice warren: Mr. Monroe.
REBUTTAL ARGUMENT OF KEITH C.MONROE, ESQ.
ON BEHALF OF PETITIONER
MR. MONROE: To pursue this same point a little bit on the matter of warrants, I had shortly before coming here contacted the clerk of the Municipal Court in Los Angeles Judicial District, who is one of the few agencies in California, or anywhere, so far as I can find out, who has some statistical information available on search warrants.
To give you an idea of what Los Angeles Judicial District comprises, the entire County is authorized 125 Municipal Court Judges. The Los Angeles Judicial District, which is within that county, comprises 58 of those 125 Judges. So we have something here which is approaching half of the entire country.
In 1931, according to the letters I have, the Clerk of this court commenced keeping separate records of search warrants issued and papers received for search warrants. They were numbered serially, commencing with Number 1. As of March 12, 1969, these numbers had reached 1938 or, in other words, during this period of time, there had been approximately some 50 warrants per year, or something like that, although this is not a fair representation, since in 1968, according to advice I have personally received from the Clerk, there were papers processed in this Judicial District for 179 search warrants.
So the figure has gone up, but it was to me amazingly low for a 38-year period.
Q Will you submit that to us, too please, Mr. Monroe.
A Yes, I will. The 1968 figures I obtained myself. The letter covers the rest.
Q Do you have any idea of the comparable figures in other States?
A I do not, Your Honor.
Q Or the comparable figures in the Federal system itself?
A I do not know.
Turning to Rabinowitz, I think it is necessary to look to the Fourth Amendment itself. I think we can see rather clearly two distinct philosophies in interpretation of the amendment.
Rabinowitz and Harris, and that line of cases, say not in so many words, but in terms of results they say, the Fourth Amendment consists of two clauses, one which prohibits unreasonable searches, and the other clause sets forth the procedure for obtaining warrants.
The opposing line of cases is, of course, Trupiano, Taylor versus U.S., and those similar cases which say this is not true; rather, there is a general requirement in the amendment which points to the use of warrants and, with or without a warrant, any search which is unreasonable does not comply with the amendment itself.
The question which troubles me greatly in the Rabinowitz-Harris philosophy is that if the unreasonable search clause can stand by itself, and if there is not some requirement somewhere for the use of warrants as a general rule, but if unreasonable searches cover the ground, then we have violated a cardinal principle of statutory construction, because the unreasonable search clause really covers the substance of what is in the warrant clause. It is not necessary to have the warrant language there.
On that basis, I submit that there must be something more to the amendment which suggests that under some conditions a warrant is required.
The facts in this case, I think, illustrate with the search of a home, with very ample time, in fact conceded no exigent circumstances, where a question about cause for searching, if this case doesn’t require a search warrant, I ask what case possibly could, and if there is not a case that possibly could require a warrant, then the Fourth Amendment itself is changed.
Q Well, of course, the development of this whole field, like so many areas, hasn’t been strictly logical. If you take the first philosophy, or what you call the Harris philosophy, through to its logical conclusion, and say that all the Fourth Amendment requires is reasonableness under the circumstances, I would suppose, as a matter of logic, it would follow that if a policeman gets a warrant for the arrest of the man at his house, and then finds he doesn’t happen to be there, and he gets lawful access to the house because of his warrant, it would be very difficult to see why logically he wouldn’t be reasonable. That is the only test, for him to go ahead and search the house anyway.
This whole train of development hasn’t been a matter of pure logic by any manner or means, has it?
A Along that line of thought, Your Honor, that, then, would cast doubt on Chapman. It would cast doubt on Taylor. It would cast doubt on all of the cases where there has been a search and not even an arrest. They can’t all be wrong, can they?
Q I am not suggesting that is so. I am suggesting that the law, if it remains perfectly stable, that you can’t search without a warrant except in very limited circumstances, one of which is incident to an arrest and, therefore, it is not quite accurate to say that there are two opposite philosophies as regards the interpretation of the Fourth Amendment as a whole, name, reasonable or, logical, a warrant in every case where you can get one feasibly.
A My purpose in addressing myself to this, Your Honor, was that if the reasonable clause is to be given primary meaning, then there doesn’t seem to be any real, strong reason for having the warrant clause in the amendment at all, for certainly a warrant which was issued without oath or affirmation, or without probable cause, would not, on its face, be reasonable.
Q Well, we have both parts of the amendment.
A I think the amendment must be read as a whole, Your Honor.
mr. chief justice warren: Mr. Monroe, before you take your seat, I just want to say that the Court is conscious of the fact that you are here in the public interest by assignment of this Court to represent this indigent defendant.
The Court is greatly comforted by the fact that lawyers are willing to do that. We consider it a real public service for a lawyer to come to Washington and perform such a service.
We thank you for what you have done, sir.
MR. MONROE: The pleasure and opportunity has been mine.
mr. chief justice warren: I want to say to you, Mr. George, that, of course, we are also as interested in the fair representation of a State as we are in the interest of the petitioner and we appreciate your frank and earnest interest in the State of California. We thank you, as well.
MR. GEORGE: Thank you.
(Whereupon, at 12:45 p.m. the argument in the above-entitled matter was concluded.)