Abel v. United States – Oral Argument – February 25, 1959

Media for Abel v. United States

Audio Transcription for Oral Argument – February 24, 1959 in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 1) in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 2) in Abel v. United States

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Earl Warren:

Number 263, Rudolf Ivanovich Abel, etcetera, versus — Petitioner, versus United States of America.

Mr. Solicitor General, you may continue your argument.

J. Lee Rankin:

Mr. Chief Justice, may it please the Court.

I’d like to address myself first to — in trying to answer the last inquiry from Mr. Justice Brennan.

The — the question was in regard to interviews with Mr. Hayhanen and when he might have been indicated his willingness for the first time to testify as I understood the question.

And —

William J. Brennan, Jr.:

With relation to the — search in relation to —

J. Lee Rankin:

The first time that there was any indication that he was willing to testify in July 21st of that same year, 1957, they interviewed him again after the interviews on the 18th and 19th of June in which he refused.

On July 11th, the first time following June 18th and 19th, he continued to refuse to be willing to testify and then he was interviewed from time to time up to the 21st when he did indicate his willingness to — to testify.

He was then — he was then presented to the grand jury as of the 5th and 6th and the indictment was returned on the 7th of August.

William J. Brennan, Jr.:

As I understood it, the first presentation to the grand jury was after July (Inaudible)

J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

(Inaudible)

J. Lee Rankin:

That’s right.

Now, an inquiry was made by Justice Stewart in regard to prosecution for illegal entry, and there is a statute providing that that is a misdemeanor, but the statute is — has a five-year limitation.

The evidence is that this man entered the country back in 1949, according to his own testimony.

We thought perhaps it might have been 1948.

We checked it back through and found from a manifest that he did enter under the name he gave in 1949 and so, that statute would have run.

Tom C. Clark:

(Inaudible)

J. Lee Rankin:

The fact that he refused to report to the Attorney General’s continued offense.

Tom C. Clark:

So in your own opinion (Inaudible)

Potter Stewart:

Coming from the District of Connecticut.

(Inaudible)

Potter Stewart:

(Inaudible) yes.

Tom C. Clark:

Remember this question of what’s the (Inaudible)

J. Lee Rankin:

Yes.

Tom C. Clark:

The limitation wasn’t here.

I just wondered —

J. Lee Rankin:

Well —

Tom C. Clark:

— being a continuing offence and following the man where he goes under our opinion.

Audio Transcription for Oral Reargument – November 09, 1959 (Part 1) in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 2) in Abel v. United States

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J. Lee Rankin:

It probably could be.

Tom C. Clark:

(Inaudible) limitations apply.

Felix Frankfurter:

So we’d rather to take that off it.

J. Lee Rankin:

[Laughs]

Earl Warren:

Well, is it a different statute that requires him to report to the Attorney General?

J. Lee Rankin:

Yes, and —

Earl Warren:

And that is a (Voice Overlap) —

J. Lee Rankin:

A misdemeanor too.

Earl Warren:

That’s a misdemeanor too.

J. Lee Rankin:

Yes.

Earl Warren:

Did the statute run on that?

J. Lee Rankin:

No, it had not.

Earl Warren:

All right.

J. Lee Rankin:

That would be open, but we would have to have the testimony of Hayhanen to establish that misdemeanor and convict him under it.

Now, at the time that the Latham Hotel was entered for the arrest is the position of the Government that there were — there was probable cause although we didn’t have — we couldn’t have the testimony of Mr. Hayhanen for the trial and therefore, we felt we had no chance to convict.

Nevertheless, there was probable cause on the violation of the statute in regard to the misdemeanor for not reporting to the Attorney General.

There was probable cause with — that’s been conceded here in regard to the violations of the conspiracy to commit espionage.

There was probable cause in regard to the right of deportation.

And if the statute of limitations hadn’t run, there was probable cause in regard to the illegal entry, all of those at the time of the entry into the Hotel Latham.

Before closing last night, I related the evidence in regard to the Immigration Service determining that this man should be deported.

The lower court found that the Immigration Service did make that decision and that the F.B.I.did not make it.

The lower court also found that the good faith of the Government and the Immigration Service throughout in this proceeding of trying to deport this man, and the Court of Appeals affirmed that after reviewing the evidence and the position of the Government that in light of that, unless, there is an error as a matter of law, that should be accepted in this Court and a matter of good faith is peculiarly a — a question of the credibility of the witnesses appearing before the Court and therefore, it is a matter that the Court — this Court should leave unless there is an error as a matter of law.

Now, keeping in mind —

Potter Stewart:

Mr. Solicitor —

J. Lee Rankin:

Yes.

Potter Stewart:

— General, surely in a case of this kind involving a man allegedly with his identity, the matter must have gone pretty high into the Justice Department for a decision, did it not?

What’s the record showing that?

J. Lee Rankin:

The highest that it shows was that there was the information — the examination of it by the Internal Security Division.

And they concluded that without Hayhanen’s testimony, they could not prove the case in a trial under an indictment.

Then it went to General Swing, the Commissioner of Immigration Service, in that the probable cause information for a warrant for deportation was related to him, but the evidence is that Mr. Noto, who is in charge of Special Investigations for Immigration Service, was the one who made the decision to deport and to issue the warrant and he had the authority under the regulations.

Audio Transcription for Oral Reargument – November 09, 1959 (Part 1) in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 2) in Abel v. United States

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J. Lee Rankin:

He did direct that the warrant be prepared and issued and that the order to show cause be prepared and issued.

So, that the problem of the Department had at that time was that here was a man who has many question, who was a colonel in the espionage apparatus, one — the highest man we’ve ever located in this country, that had been working in this country in that service for a period of eight or nine years at this time.

We knew that he had been active.

We had all these evidence to the fact of his activity in this espionage work during this period and corroborating evidence.

But —

Potter Stewart:

My — my last — my question was directed to —

J. Lee Rankin:

Yes

Potter Stewart:

— to your — what you’ve told us about the findings of fact in the Court — in the District Court which were accepted — accepted by the Court of Appeals that this was a good faith decision on the part of the Immigration and Naturalization people to effect this arrest, that there was evidence of corroboration between that part of the Justice Department and between the F.B.I., another part of the Justice Department, but the one was not acting as the secret agent of the other.

J. Lee Rankin:

Yes.

Potter Stewart:

I was wondering if — if there was any effort in addition to that of — of — if there was any evidence in addition to the evidence of cooperation, if there was any evidence of coordination by somebody above each of these Departments using one where it would be useful and the other where it would be useful.

Is there any such evidence out of coordination from above?

J. Lee Rankin:

Not in — in that respect.

I think that the — the inference can be drawn that it was concluded that Internal Security Division had come to the conclusion that they couldn’t prosecute because without Hayhanen, and therefore, the question was, “What could be done to stop this man from continuing as an espionage agent working in this country?”

And that the best thing left was to deport him.

At least he couldn’t keep on working to try to obtain and divulge the securities about the internal security of this country and its defense.

And so I think that it’s apparent from the record and both courts concluded that that was the purpose that they felt they couldn’t prove the others, although they had probable cause and grounds for an arrest, they — they couldn’t go in the Court and prove it and therefore, they want to stop this man from continuing to operate on the country as an espionage agent.

So they proceeded this other way that the statutes give the power to the Attorney General to act, and he proceeded to do it and act in good faith.

And then they came upon this additional evidence, which was not necessary if they had Hayhanen, what was cumulated.

No question about it in regard to the espionage matter.

And it’s a question of whether under the decisions they had to pass that up or whether they could take it as a part of a proper search and seizure and — and actually the deportation.

Did Hayhanen testify at the trial?

J. Lee Rankin:

Yes, he did.

What brought about his change of attitude?

J. Lee Rankin:

Well —

Is that shown on the record?

J. Lee Rankin:

It’s not shown.

Felix Frankfurter:

Mr. Solicitor, may I ask this particularly if you have time to deal with it at the time that you have left?

J. Lee Rankin:

Yes.

Felix Frankfurter:

I would like to know what the relevance of good faith (Inaudible) so the test to the fact of good faith is the question whether or not the Fourth Amendment has or has not in this regard.

What’s the relevance of that?

Audio Transcription for Oral Reargument – November 09, 1959 (Part 1) in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 2) in Abel v. United States

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Felix Frankfurter:

Even —

J. Lee Rankin:

Well —

Felix Frankfurter:

— assuming that the Harris case says so known use to you that the Harris case had been constantly on the trier in this Court raising a constitutional question which can only be opened up —

J. Lee Rankin:

Yes.

The —

Felix Frankfurter:

— if you have time in your —

J. Lee Rankin:

Well —

Felix Frankfurter:

— scheme of argument.

J. Lee Rankin:

Yes.

The Harris —

Felix Frankfurter:

(Voice Overlap) that simple question for me.

J. Lee Rankin:

The Harris case does speak of good faith and the fact that there was good faith in the search and seizure (Voice Overlap) —

Felix Frankfurter:

Which I do not doubt meaning by good faith that it was conscientiously being this is the wise and right thing to do.

J. Lee Rankin:

Yes.

Felix Frankfurter:

Is that a fair definition of good faith?

J. Lee Rankin:

Well, I think there’s also a claim here that we didn’t really want to deport this man, that we were just using it as a subterfuge or device, and that therefore, by such a device, we couldn’t go around and collect evidence in a search and seizure by that means.

And they compared it with a case where the man slipped into the office of a man on the representation we’re just making a visit.

You recall (Inaudible) case.

And in that case, he then proceeded to make a search and seizure in a clumsy manner after he’d gotten in that way.

The Court said that was not a reasonable search and seizure in accordance with the Fourth Amendment.

I think that’s the effort here to try to make it appear to be a subterfuge and not a valid deportation proceeding.

Felix Frankfurter:

But my question didn’t proceed from that assumption.

It proceeded from the contrary assumption.

This was simply the high-minded conscientiously conceived procedure on the part of the enforcing authority.

What I want to bring is what difference it makes from the point of view of the Fourth Amendment whether in a search or a seizure, they are not identical, which if there weren’t some excuse with reference to deportation, would be on the wrong side of the Fourth Amendment.

What difference does it make that on the right side of the Fourth Amendment that — that the steps that were taking or excusable or justifiable for purposes of deportation, but the proof of the enterprise is not to secure deportation but to get a conviction for a capital offense or maybe a capital offense.

J. Lee Rankin:

Well, if —

Felix Frankfurter:

That’s my problem.

J. Lee Rankin:

If it was in a bad faith and a subterfuge, then you don’t reach the basic question, I think, that you’re directing to of whether or not it’s proper to have a search and seizure under a deportation warrant in any event in accordance with the provisions or requirements of the Fourth Amendment.

Felix Frankfurter:

Or — or to have it for purpose of deportation.

Audio Transcription for Oral Reargument – November 09, 1959 (Part 1) in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 2) in Abel v. United States

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J. Lee Rankin:

Yes.

Felix Frankfurter:

Not usable for purposes of a criminal conviction, particularly of this kind of thing.

J. Lee Rankin:

Proceeding to that, it seems to us in examining the cases the question is under the Amendment, what is a reasonable search and seizure?

Because that’s what the Amendment says and that’s what this Court had said.

And when you get the Latham Hotel, the search and the seizure that’s involved in the first part, and I’ll deal with the latter — with the next step a little later, was by the Immigration Service and after they asked for this hearing as to cooperation and they got pass that and they got no cooperation, then the Immigration Service proceeded to make themselves known and that — and present their credentials.

They asked the man what his name was.

And he said it was Martin Collins, which was one of the names on the — was the name on one of the fraudulent birth certificates that he had that was discovered in the search.

They then proceeded, he was not dressed, and they told him to get dressed.

They presented their arrest warrant and their order to show cause and he receded the order to show cause.

They then asked him what clothes he want to take, what he — what — what he want to wear first, and they searched the clothes he was going to wear as to weapons and evidence of nationality or alienage.

And then they proceeded to ask him what he wanted to do about its things.

Did he want to take all his belongings with him?

And he said he did except for certain reservations.

And then they started it from a job of packing up.

Now, the only reason that you allow, as I understand it from the cases, the man to be searched with regard to weapons and anything that he might make an escape with is to protect the officers in carrying out their duty of serving the warrant.

And certainly that is necessary if you assume that a man has to be taken into custody for deportation, and certainly, he has to be taken into custody if it’s in the interest of the protection of the country, which this certainly was within espionage agent.

All right.

When you — when they examined him with regard to weapons and means of escape then the cases have held that if you run across evidence of the fruits of the transaction, illegal transaction, he’s got some money on him, a robbery or anything like that, you can take that.

If he’s got the means of committing other crimes, you can take that.

Now —

William O. Douglas:

If there were three — three different groups of things taken, one — some were on this person —

J. Lee Rankin:

Yes.

William O. Douglas:

— is that right?

J. Lee Rankin:

No, none of them on this person.

William O. Douglas:

But one — one was something up his sleeve.

J. Lee Rankin:

Well, he tried to slip it up the sleeve after he got dressed.

William J. Brennan, Jr.:

Well, that (Inaudible).

J. Lee Rankin:

Well, but that got on later.

He was — he was not even dressed.

William J. Brennan, Jr.:

Well, no — he — he was naked, as I understand —

Audio Transcription for Oral Reargument – November 09, 1959 (Part 1) in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 2) in Abel v. United States

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J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

— when the officers came in.

William O. Douglas:

But one thing was taken from his sleeve, is that right?

J. Lee Rankin:

Yes, that’s right.

William O. Douglas:

Some things were taken from a waste paper basket?

J. Lee Rankin:

That’s later.

Yes, by the F.B.I. after he’d given up the room.

William O. Douglas:

That’s after — that’s after they came back?

J. Lee Rankin:

Yes.

William O. Douglas:

At the original time, one thing was taken from his sleeve and the rest were taken from the room at his request?

J. Lee Rankin:

Well, yes.

They were taken from the room in the process of packing up his belongings.

William O. Douglas:

Was that at his request?

J. Lee Rankin:

Yes, he — he said he wanted to take his belongings with him.

And they helped him pack.

And it’s the position of the Government that it’s unreasonable not to permit them to go through these various belongings and see whether he had any weapons or means of escape or any of the other contraband or any other unlawful means.

William O. Douglas:

Anywhere in the room?

J. Lee Rankin:

That’s right.

The room was only 8 by 12.

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

Some of them were.

William J. Brennan, Jr.:

(Inaudible)

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

Now, one was this — the code message, that’s the one that he was attempting to put up the sleeve.

J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

Now, who took that?

The — the Immigration agents or —

J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

Yes.

J. Lee Rankin:

The Immigration.

Audio Transcription for Oral Reargument – November 09, 1959 (Part 1) in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 2) in Abel v. United States

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William J. Brennan, Jr.:

Immigration.

Then the second group consisted of the false Martin Collins birth certificate, the false Emil Goldfus birth certificate, the vaccination certificate, Mark Collins and the bank book in favor of Goldfus.

J. Lee Rankin:

Immigration —

William J. Brennan, Jr.:

Now, where — where were each of those?

J. Lee Rankin:

Well, those were in his belongings that were being packed.

William J. Brennan, Jr.:

Well, what I’m not quite clear about is when you say “in his belongings,” in the suits of clothes or in —

J. Lee Rankin:

That isn’t clear.

William J. Brennan, Jr.:

— dress drawers or something?

J. Lee Rankin:

That isn’t clear —

William J. Brennan, Jr.:

That doesn’t appear?

J. Lee Rankin:

— from the evidence.

No.

William J. Brennan, Jr.:

But again, who — who was it that — that found them?

J. Lee Rankin:

The Immigration agent.

William J. Brennan, Jr.:

Immigration agent.

Then finally, there’s this trick sandpaper block, which had the cipher pad and a hollowed-out wooden pencil with a microfilm.

Now, both of those were in the wastepaper basket.

J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

Now, those are the two, are they, that the F.B.I. agents recovered from the wastepaper basket after he had left the room?

J. Lee Rankin:

After he’d given up the room —

William J. Brennan, Jr.:

Yes.

J. Lee Rankin:

— and checked out and they got a consent from the hotel to examine the room at night.

William J. Brennan, Jr.:

Well, now, can you tell me —

J. Lee Rankin:

Right.

William J. Brennan, Jr.:

Do you defend the use of these three categories on the same ground or on different ground?

J. Lee Rankin:

Well, on different grounds.

The F.B.I. search, it seems to us, is clearly after an abandonment.

William J. Brennan, Jr.:

That then — that would cover the sandpaper —

J. Lee Rankin:

That’s the wastepaper.

William J. Brennan, Jr.:

— block and the hollowed-out wooden pencil.

Audio Transcription for Oral Reargument – November 09, 1959 (Part 1) in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 2) in Abel v. United States

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J. Lee Rankin:

Yes, he’d thrown those in the wastebasket.

And we thought —

William J. Brennan, Jr.:

Well, now, how about the other two categories?

J. Lee Rankin:

The other two categories are in the ground that they were helping him pack and it was reasonable for them to look through the things that they pack before they gave him to him so that he could do them any harm or use them if they were in violation of law.

William J. Brennan, Jr.:

Now, the birth certificates, the vaccination certificate and the bank book, I take it, would all be relevant to a deportation proceeding, would they?

J. Lee Rankin:

Oh, yes.

They would be a means by which he could maintain his — his fictitious identity as he claimed he was Martin Collins here.

He also used the name Goldfus at his studio.

William J. Brennan, Jr.:

Now, what the — what about the code message?

That would not be relevant, would it, to the deportation as such?

J. Lee Rankin:

No, but that he was trying to slip up his arm and was evidence, clear evidence of espionage.

William J. Brennan, Jr.:

Have the —

J. Lee Rankin:

So it was a means of committing a crime and the courts held that you don’t have to pass up a material of that kind, that you can take it if you run across it.

William J. Brennan, Jr.:

Now, may I get one other thing straight.

You’ve already told us that on the third category, those you — the Government’s position is they’re admissible since they have been abandoned.

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

But on the other two categories, do you rest the admissibility of them as incident to the administrative warrant?

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

And not on any other ground?

J. Lee Rankin:

Well, we — we think there’s no question of what — there is grounds for an arrest, but he’s criminal.

William J. Brennan, Jr.:

But the arrest, their admissibility as incident to a lawful arrest or as incident to the use of the administrative warrant?

J. Lee Rankin:

Well, we urged before the Court the administrative warrant each time and its question whether the fact that there was grounds for arrest otherwise are sufficient under the — the law or not.

They are, in some of the cases the Court has handed down and you might not be willing to recognize it here.

William J. Brennan, Jr.:

Well, I’m — I’m still not quite clear whether the Government is or isn’t resting their admissibility as incident to a lawful arrest.

J. Lee Rankin:

Well, we take the position that the Immigration warrant was a justification of warrant.

Felix Frankfurter:

Is it fair — is it fair to say or to assume that at no time during the period that the administrative warrant — let me rephrase, I mean, that from the time that an administrative warrant was determined upon (Inaudible) that from that time on, there was already reasonable ground, speaking out technically or administratively that there — in the minds of the Department that this is a potential espionage case as well.

J. Lee Rankin:

Yes.

At all times, there was no question of what — there was sufficient evidence that would get — would get him to testify for an espionage case.

Felix Frankfurter:

So that coincident with pursuing means for getting in deported was the hope and desire that he — that he also would be charged with a crime subject to criminal prosecution.

Is that a fair statement?

Audio Transcription for Oral Reargument – November 09, 1959 (Part 1) in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 2) in Abel v. United States

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J. Lee Rankin:

Well, not exactly because if we could have gotten a — an espionage case against them, we certainly wouldn’t have sought an immigration — a deportation case.

Felix Frankfurter:

I didn’t mean that you had sufficient evidence in justifying the Government to go into court and put him to trial but it was in the mind of the authority that this is a potential spy case, is that right?

J. Lee Rankin:

Well, it — it was if we can get Hayhanen to testify, but we couldn’t at that time and so, we —

Felix Frankfurter:

It’s the thought of getting but not abandoned, in other words, the open expectation that it would turn out, as it did turn out had not been abandoned or — in the case.

J. Lee Rankin:

Yes, yes, it had.

Felix Frankfurter:

It had been a —

J. Lee Rankin:

Yes.

Felix Frankfurter:

It had been abandoned.

J. Lee Rankin:

It — it had been in a sense that they had concluded that they couldn’t get Hayhanen to testify and the best thing to do is deport him.

Earl Warren:

I suppose also the Government had in mind if it would locate enough evidence of crime by a search that it would prosecute him for the — the subversion even though Hayhanen didn’t testify.

J. Lee Rankin:

Well, I — I think it would have, but he was very remote that could happen with such a skilled person.

And it’s — they didn’t anticipate they could get the independent evidence that would be sufficient for that purpose.

They always had plenty and more than enough if Hayhanen would testify, but this man was a — a very skilled operator and it was not expecting that he would leave around anything.

Felix Frankfurter:

I think you answered — you answered in — didn’t answer to a question of mine yesterday that it was not feasible to swear out of search warrant on secondary evidence by an F.B.I. agent because there would have been a disclosure which the Government was naturally not — not willing to make, is that right?

J. Lee Rankin:

I think I — that was my answer, yes.

Felix Frankfurter:

That was to that point.

Now, the question I put to you this morning is on a different attack, namely, assuming such a difficulty confronted the Government could had circumvent, that — that carries an odium which I do not need to carry — convey, could the Government, as a matter of the Fourth Amendment, the new construction of the Fourth Amendment, could the Government abandon because of the difficulty of getting the appropriate witness or witnesses, could the Government abandon both of a criminal prosecution and yet proceed, assuming it could legally proceed, by way of deportation and make the administrative enforcer, the administrative warrant in the course of that make a search and make seizure which independently considered would not be warranted in the criminal case, nevertheless, use such products, a proof thereof in, what turned out to be happily, the basis of a criminal prosecution.

That’s my problem that I put to you, and I hope you would have something to say about it.

J. Lee Rankin:

Well —

Felix Frankfurter:

Before you do that, I just want to call your attention to the fact that you naturally enough because the Court’s opinion that even you leave to do so or lead you do to so, the Fourth Amendment doesn’t say there may be reasonable search.

It doesn’t —

J. Lee Rankin:

It says there may not —

Felix Frankfurter:

— say that.

J. Lee Rankin:

— may not be unreasonable search —

Felix Frankfurter:

They may not be unreasonably that goes on as part of the same sentence to indicate what an unreasonable search is, namely, one without a warrant and the warrant specified to carry with it the detailed and the particularity that the Fourth Amendment enumerate and all the rest seizures without any warrant historically was doubtful, but (Inaudible) was talked about.

It was very doubtful whether you could make seizure even with a warrant.

And the Fourth Amendment put in the qualification which illuminated the first half of the Fourth Amendment what it is that constitutes an unreasonable search, namely, one without a warrant, and the case here is a matter of necessity like a fellow running away or there isn’t group time for it, have read into that Amendment the qualifications that I — I insist, if I may respectfully, that it’s very important not to read that Amendment as authorizing reasonable search.

That’s a gloss in — from my point of view and on warrant of a gloss on the Fourth Amendment.

J. Lee Rankin:

Well, of course, we have to deal with the decision of the Court.

Felix Frankfurter:

It takes them to get filed up, I started out by saying you have every warrant to say what —

Audio Transcription for Oral Reargument – November 09, 1959 (Part 1) in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 2) in Abel v. United States

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J. Lee Rankin:

Yes.

Felix Frankfurter:

— you say.

J. Lee Rankin:

And the Court may reexamine Harris and decide that a warrant is necessary if there’s time to secure, and we don’t claim that there was not time to secure it in this matter because there was, but we weren’t trying to search for anything in this case.

We were trying to deal with a very serious problem of an espionage agent and trying to take care of it since we couldn’t have the witness by deporting him.

Potter Stewart:

Mr. Solicitor General, you don’t accept the theory of the petitioner that the record shows that what the Government perhaps really had in mind was the hope that this man, Abel, might cooperate with the Government and become a dual agent for.

J. Lee Rankin:

No —

Potter Stewart:

You say — you say the record doesn’t show that, do you?

J. Lee Rankin:

The only record on that is the claim of the petitioner himself, his affidavit.

He never did take the stand in this matter in support of that.

There’s no other evidence, all the other evidence is to the contrary.

Potter Stewart:

Was the affidavit admitted in connection with the motion to —

J. Lee Rankin:

Yes.

Potter Stewart:

— suppress the evidence?

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

Mr. Solicitor General, before you get to answering Mr. Justice Frankfurter’s question, which I’m also anxious to hear you answer, gets the more on the bright side out of the way.

If you are wrong, the Government is wrong that any or all of this search and seizure cannot be supported on the administrative warrant, are you making any argument as to any of those items and if so, which ones that their admission in face of the fact that you get Hayhanen finally to testify was harmless error?

J. Lee Rankin:

Well, we think it — they were accumulated and the other evidence were so overwhelming that they would not be controlling in the case, but the code book is an important evidence on espionage in identifying Abel with us.

And certainly the code message was.

So those two items was —

William J. Brennan, Jr.:

So if there were any harmless error, you’d limit that to those which are really related to the deportation, I gather, not so much to the espionage and that’s the birth certificates, vaccination certificate and the bank book.

J. Lee Rankin:

Yes, sir.

Could I ask a question?

J. Lee Rankin:

Yes.

(Inaudible)

J. Lee Rankin:

Well, they’ve been used in the Court as — tacitly recognizable that give her 70 years or more.

What were the — was there anything on the record — perhaps the record will say what’s been the practice of these — these administrative warrants.

I — are you opening that warrant by a search by the district?

J. Lee Rankin:

Well, they’ve — they’ve always been accompanied by a search to be sure they wouldn’t kill the man that was trying to serve them.

(Inaudible)

J. Lee Rankin:

Yes, and also the surroundings —

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Surroundings.

J. Lee Rankin:

— because otherwise, they’d be leaving themselves open to the —

What — what I’m trying to get at is whether (Inaudible)

J. Lee Rankin:

No, it was in accordance with the standard practice.

Where —

J. Lee Rankin:

The only difference that there was in this case that I think there might not be in all cases was the inquiry as to whether he wanted to take his belongings because he was in the hotel room and he said he did.

And so that would necessitate the examination of those belongings to see if there was any weapons or anything of that kind in them.

Potter Stewart:

If I may interrupt you.

Is there — where — where can the — are there any materials available anywhere in the Court’s decisions or rules of the Department or anything else as to — to support your statement, which, of course, I don’t doubt that this was in accordance with the standard practice?

J. Lee Rankin:

There is an affidavit by Mr. Farley of the Immigration Service on page 68 of the record.

68?

J. Lee Rankin:

Yes, 68.

And then if you go down to the second full paragraph, the last sentence, this is customary practice after he’s related the search and all, when aliens are arrested by Immigration and Naturalization Service officials on charges similar to those which led to this arrest.

William J. Brennan, Jr.:

What about — what about the (Inaudible)

J. Lee Rankin:

Well, that’s the only maximum security point that the Immigration Service had.

William J. Brennan, Jr.:

Well, what — what did the order to show cause or turn into —

J. Lee Rankin:

In New York, yes.

William J. Brennan, Jr.:

In New York.

J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

(Inaudible)

J. Lee Rankin:

I think it was the 24th, but I’m not sure.

William J. Brennan, Jr.:

(Inaudible)

J. Lee Rankin:

10 days later.

William J. Brennan, Jr.:

(Inaudible) already waiting there?

J. Lee Rankin:

Well, if it wasn’t already waiting, they certainly plan for it, I’m sure.

And he went to that hearing.

He’s represented by counsel.

William J. Brennan, Jr.:

(Inaudible)

J. Lee Rankin:

Yes, sir.

William J. Brennan, Jr.:

And that — that’s the hearing in response to the —

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J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

Provision of the order to show cause?

J. Lee Rankin:

No objection was made.

And he then admitted that he was illegally in the country, that he come across Canada and — and the whole case was admitted right there in regard to deportation.

He was already deported.

Tom C. Clark:

Is it true when (Inaudible) under the law of security if (Inaudible) of the Immigration Service?

J. Lee Rankin:

Well, Mr. Justice, the (Inaudible) has been changed in recent years.

We’ve given that up.

But if it doesn’t involve security, they are provided in — now in hotel rooms or other divisions in the — in the area there in New York.

Tom C. Clark:

New York?

J. Lee Rankin:

Yes, and the statute gives a commission of the discretion.

In many of the cases, they’re not retaining custody at all, but this was one where they didn’t want him to operate another day, another moment on this espionage operation that they could help.

That was the whole purpose of trying to deport him, it was to get him so he wouldn’t be able to operate anymore.

And the only place they had was this one at McAllen, Texas.

Felix Frankfurter:

Am I right in — in calling out cases, I should, after probing, you’re saying there was time that this Court has never held that that — what did you say about it?

That if there is time you must get a warrant, have we ever — have we ever held that as adoption or said merely because there was time, doesn’t exclude consideration of other factors.

J. Lee Rankin:

Well, in Rabinowitz —

Felix Frankfurter:

In the matters of (Inaudible) —

J. Lee Rankin:

It seems to me in Rabinowitz, you express the overrule of the Trupiano case in — in which there was a requirement if there was time to get the search warrant and you expressly overrule that.

Felix Frankfurter:

But that case (Inaudible) doesn’t matter.

The — the Rabinowitz case went on some petition or ground, didn’t it?

J. Lee Rankin:

Yes.

Felix Frankfurter:

It didn’t say it’s an immaterial factor.

J. Lee Rankin:

Well, there — in this case you — we must look at the fact that this wasn’t done for the purpose of getting any search or seizure at all.

That isn’t what they went there for.

They were going to deport him.

Felix Frankfurter:

That’s what I mean but this doesn’t — therefore, you defend this man.

It doesn’t matter whether there was time or not.

You justify the legality of it being an independent ground.

J. Lee Rankin:

That’s right.

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Felix Frankfurter:

And the mere fact that there was time you argued doesn’t displace those other legalizing evidence, isn’t not what the position you take?

J. Lee Rankin:

Yes, because the — the discovery, the search and the seizure were —

Felix Frankfurter:

Within the course of — of illegal enterprise.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

That’s your position.

J. Lee Rankin:

And it was a lawful entry and lawful action, and so the search and seizure were lawfully.

Felix Frankfurter:

And you transfer that which was legal with reference to the pursuit that was made, i.e. deportation, does not bar the use of testimony so secured in what subsequent they became a criminal prosecution and that’s your position?

J. Lee Rankin:

That’s right.

The — all of the reasons for applying those principles in the criminal cases are here in regard to this deportation case.

And so we say that if a person being prosecuted for a crime would not be this — be barred from such a search and seizure.

Felix Frankfurter:

I’m still troubled by what seems to me a necessary (Inaudible) and I’d say he can’t be taken but it does require a transfer.

You argue in the first place that the restrictions as to search and seizure that applied to an unembarrassed or an unequivocal criminal prosecution —

J. Lee Rankin:

Yes.

Felix Frankfurter:

— if this was just a criminal prosecution, for all I know, you wouldn’t be here defending.

J. Lee Rankin:

No, this would satisfy all the requirements of Harris or Rabinowitz in that event.

Felix Frankfurter:

So you don’t — you don’t have to rely on the deportation proceeding.

I thought you do — you do rely on it and say since what you’ve got, you got in the course of a proceeding which is legal because it is for purpose of the deportation, you then had a windfall and you can process by the windfall in the criminal prosecution.

That’s what I call making a jump, that because you would be justified in using this materials under this procedure to be brought in, you’re also justified in using it in order to convict him.

J. Lee Rankin:

Well, I agree with your last statement but I say that if it was a criminal proceeding as distinguished from one for deportation, it would come within all standards and requirements of Harris and Rabinowitz.

Felix Frankfurter:

In other words, you’ve got two grounds and say you — you got this in a legal — in a legal deportation proceeding, therefore, you can use it, there’s no taint to it, but in any event, you say even if you didn’t have that, the search and seizure here were incident, your lawful arrest when you could — you could have made these things to move, legally made procedure and to get the benefit of it, is that right?

J. Lee Rankin:

Well, that’s the question that Justice Brennan asked me, and I said I think that’s true but I don’t think we argued that before in the other two courts and so the Court — unless they will let us argue that here the first time.

William J. Brennan, Jr.:

Well, that’s what I’m — that’s why I asked you the question earlier that I want to be clear that you are resting upon the legality of this — use of this administrative warrant and nothing more.

J. Lee Rankin:

Well, I — I would argue that the arrest was legal in regard to the criminal matters.

There was probable cause for the officers to be there but I’m arguing, I want to clearly understood for the first time in this Court and it was not argued in the Court of Appeals or the District Court to sustain.

Felix Frankfurter:

I don’t think that bar you from arguing anymore to debar me from sustaining their judgment below on a ground which the Court of Appeals didn’t take.

J. Lee Rankin:

Well, you may not be willing to grant it to me but I’m arguing it anyway on both grounds and I think they’re both there.

William J. Brennan, Jr.:

Well, I’m glad now that it came up again because I have the other understanding from your answer to —

As I understand your argument — your answer to Justice Frankfurter is that you say you have a right to search incident to an administrative arrest that the scope of that right to search is certainly no narrower than the scope under Harris, that testing their search by the Harris standards is good as an administrative search, isn’t — isn’t that — isn’t that what you meant?

J. Lee Rankin:

I — I answer it that way and I also add that it was a lawful — there was probable cause for an arrest because of conspiracy to commit espionage and for violation of the statute about reporting to the Attorney General.

In other words — well, that’s Justice Brennan’s question and I have —

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J. Lee Rankin:

That’s right.

— the same confusion that he does.

I understood you to say to him first that if your administrative search defense was not accepted by the Court, you then felt that you would — could not testify this on any other ground.

J. Lee Rankin:

I said we didn’t argue before the other two courts on any other ground.

But you —

J. Lee Rankin:

But I do think that there’s adequate ground here.

There was probable cause for arrest for the criminal matters that I have described.

The reason you don’t argue it, I take it, is because of what we said in the Giordenello case —

J. Lee Rankin:

That’s what bothers —

— that these people did not have a chance to justify the reasonableness of the search on a basis that wasn’t advanced by you there.

That’s the problem and you’re rubbing it.

J. Lee Rankin:

But — yes.

But I still want you to consider it, if you will.

I think —

I understand.

J. Lee Rankin:

— it’s all there and the facts were all there.

Tom C. Clark:

But you’re committed (Inaudible)

J. Lee Rankin:

Yes, that’s admitted.

It’s clear in the record and there is no question about it.

Potter Stewart:

Now, of course, if there had been that kind of arrest by the F.B.I., the arrest would have been followed by immediately under the Criminal Code of Procedure by — by an arraignment and under which this man would have had various protections.

That’s true, isn’t it?

J. Lee Rankin:

Well, yes, but I don’t think that would affect the search or the seizure.

That would affect whether or not the due process from then on.

Potter Stewart:

From then on.

J. Lee Rankin:

I think —

Felix Frankfurter:

But — but wouldn’t it shed a light under justification, if you do not treat — so if you do not treat the seizure as incident to an arrest for which you have probable cause and you do not so treat it because you do not follow the consequences, as Mr. Justice Stewart just suggest, then you can justify it because the conduct negative the justification.

J. Lee Rankin:

Well, if we had done that, you would say it was a mere subterfuge or device to get the evidence for that purpose instead of for purposes of deportation.

Felix Frankfurter:

You mean if we have done what?

J. Lee Rankin:

If we had gone and —

Felix Frankfurter:

(Inaudible)

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J. Lee Rankin:

— and claimed that it was an arrest —

Felix Frankfurter:

But you can claim it’s an arrest for purpose of search and seizure, but not an arrest for purpose of protecting him in a way in which an arrested person is protected.

J. Lee Rankin:

Well, if all —

Felix Frankfurter:

You can’t — I don’t think you can do that.

I think —

J. Lee Rankin:

If there’s probable cause, there is — the question is whether the officers are lawfully there.

Now, if there’s probable cause, they are lawfully there in — in order to make an arrest and the rest of it, the search and seizure follows just like day after night.

Felix Frankfurter:

Yes, but the probability is negative by the fact that you don’t draw the consequences of what — of what you justify as probability for the purpose of seizing and it exhaust itself in seizing and therefore, one has a right to say, you seize because you wanted to seize and not because it was incident to an arrest.

J. Lee Rankin:

Well, if the probable cause is there as admitted here —

Felix Frankfurter:

You don’t say it does evaporate.

J. Lee Rankin:

It doesn’t disappear.

Felix Frankfurter:

All right.

J. Lee Rankin:

And that’s the justification for the search and seizure.

Felix Frankfurter:

To me, all the shed light —

Hugo L. Black:

May I ask you one question to get clarification, I don’t quite understand.

Suppose there had been no so-called administrative warrant at hold, would your argument has been different?

J. Lee Rankin:

I would have argued throughout.

And the Department would argue in the lower courts that there was probable cause in regard at least two offenses, criminal offences, and there was ample ground for search and seizure at all times.

Hugo L. Black:

Without — you do not put and it relies then on the administrative warrant.

J. Lee Rankin:

I rely on both by —

Hugo L. Black:

Oh, how can you rely on it?

J. Lee Rankin:

Because we did have one.

That is the fact.

Hugo L. Black:

But would it comply?

Could — could the F.B.I. issue a warrant like that without going to a magistrate to arrest the man for crime?

J. Lee Rankin:

Yes, they could — they wouldn’t issue the warrant but the warrant was issued under the statute.

The —

Hugo L. Black:

I understand that.

I’m talking about the Fourth Amendment.

J. Lee Rankin:

Well, if it was in regard to a crime?

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Hugo L. Black:

Yes.

J. Lee Rankin:

They wouldn’t have to have the — a warrant.

They had probable cause to arrest the man right there.

Hugo L. Black:

Then I understand that what you are saying is, that’s what I asked, maybe I’m wrong, that they didn’t have to have anyone either from a magistrate or from the administrative officer for whatever that’s worth.

I don’t know what its worth.

You’re saying they didn’t have to have any warrant because they had probable cause to go in and arrest.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

Without a warrant?

J. Lee Rankin:

Yes.

Felix Frankfurter:

Without a warrant?

J. Lee Rankin:

Yes.

Felix Frankfurter:

I don’t understand that.

J. Lee Rankin:

That was a — a crime was being committed right then.

He was not reporting —

Felix Frankfurter:

But when they got on the premises — they got on the premises because in their head, there was a conviction that there was probable cause and if that is true, then they have no business, as I understand it, then they would have to get a warrant for his arrest.

You say they knew they had all this fact in their head, that constituted probable cause.

I suggest it constitutes probable cause for getting a warrant for arrest but not for going in and arresting him.

J. Lee Rankin:

Well, if the — the — there are cases by the Court that if there are acts in their presence that amount to a commission of a crime that that’s probable cause.

Felix Frankfurter:

What — what acts were they permitted in, except the evidence of what the basis on which they proceeded with?

J. Lee Rankin:

He was at that time claimed to be Martin Collins under a fraudulent birth certificate in their presence and that was a — a violation of the statutes.

Felix Frankfurter:

Well, then, the consequences of this is far-reaching, Mr. Solicitor, being that if arrest — if — if the Department of Justice officials have good reasons for getting a warrant of arrest for a man but they don’t get a warrant of arrest, they enter his premises, they ask him a question, they have every reason to believe that he’s going to lie, they now say, “Oh, you liar because we know that isn’t your true name.”

That would make hash of the duty to get a warrant of arrest as well as the duty to get a warrant for search.

Well, as — as I understand your brief (Inaudible) being led to making an argument by the questions of the Court if you don’t make in your brief —

J. Lee Rankin:

That’s right.

— in other words, you do not depend in your brief the search and seizure independently of its being a valid search incident to be administrative arrest.

J. Lee Rankin:

That’s correct.

And you draw assessments from the Giordenello case on another basis, namely, when you come to answering your adversary’s arguments as to the scope of the search you say therefore, closed in raising that up here because they didn’t raise it below and under the Giordenello doctrine, they can’t be heard to argue that when you had no opportunity to depend them on that score in the court below.

J. Lee Rankin:

That’s right.

So that you were —

J. Lee Rankin:

As to dilemma —

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It seems to me you are being — you are being led into an argument here which puts you in an inconsistent position and it’s quite different from the one that you make in your brief.

J. Lee Rankin:

That’s correct, Mr. Justice.

Hugo L. Black:

And I may say that I’m puzzled still.

J. Lee Rankin:

Yes.

Hugo L. Black:

Maybe it — maybe it is contrary to what your argument is as being imposed with me.

Do you think if the Fourth Amendment is justifying no less by for administrative warrant, then it is for a warrant by a magistrate?

J. Lee Rankin:

Well, no.

I think there is a different kind of a problem.

Hugo L. Black:

Well, why would the administration have — administrative agents have more right to bring about the arrest of the man under the Fourth Amendment?

Another circumstance is different to what the courts — through magistrate to him.

I don’t get that.

J. Lee Rankin:

Well, because you have a — a crime involves punishment.

This Court has held that deportation does not involve punishment.

Hugo L. Black:

But the Fourth Amendment, it talks about arrest and seizure.

It doesn’t talk about punishment, does it?

J. Lee Rankin:

Well, I don’t think that this is — rest in that sense, although, it’s taking a person in custody in order to carry out the deportation.

Hugo L. Black:

But was seized.

He is seized by officers.

J. Lee Rankin:

Yes, that’s the —

Hugo L. Black:

Do I understand —

J. Lee Rankin:

— the effect of it.

Hugo L. Black:

— that the Government is — I — I want to get this clearly in my own mind because I have somewhat different ideas about this, the fact of the Search and Seizure Clause of the Constitution and some of the — and some of the other.

Do I understand that the Government is taking the position here that administrative agents can issue warrant to seize a man because they say it’s something administratively where they’re not going to punish him that would — would not meet the requirements of the Fourth Amendment, so far the magistrates are concern?

J. Lee Rankin:

Well, our argument is that you shouldn’t certainly impose a more stricter rule on that kind of a warrant and an arrest where they come in lawfully under such in a warrant than you do in a criminal case and therefore, this at least complies with all of the Court’s requirements in Harris and Rabinowitz for — if this was a criminal procedure.

Hugo L. Black:

Well, my — when this case came up, we brought it here, I suppose the point was the difference between — if there was any difference between the Fourth Amendment’s requirement in connection with administrative arrest or — for deportation or anything else and any other.

Now, I can understand your argument if you are saying that under the Fourth Amendment, you had probable cause to make this arrest and that the circumstances will not search to make it unreasonable to go and arrest him without going — to go magistrate.

But I do not in my circuits, where you can get much help from this so-called administrative warrant, nobody swore anything.

It wasn’t before a magistrate and it just — just an order from one superior to another to go arrest the man and seize him.

J. Lee Rankin:

Well, the same — same factors for the search and seizure are involved in that kind of an arrest that is protection of the man making the arrest that are involved in a criminal arrest.

And so we take the position that you should not apply a stricter rule to that kind of arrest than you do to the other.

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Hugo L. Black:

Well, I can understand that.

If that’s what you’re arguing, then I don’t see whether the administrative warrant had anything to do with it.

If that’s to be given much weight, I — I haven’t yet seen — heard the argument which justifies it —

J. Lee Rankin:

Well —

Hugo L. Black:

— under the Fourth Amendment.

J. Lee Rankin:

If you recognize that he has to be taken into custody in order to deport him like the Court has a number of times in different cases, then you have to — it seems to me, you have to follow out just like you have in the criminal cases that there has to be some search, at least to this person, so that they don’t kill the officer that’s making the arrest.

Hugo L. Black:

You go back to the validity of the arrest —

J. Lee Rankin:

Yes.

Hugo L. Black:

— without a warrant under the Fourth Amendment.

J. Lee Rankin:

Well — but I don’t want you to misunderstand me.

I will — I am the warrant of the Immigration Service and I —

Hugo L. Black:

(Voice Overlap) understand.

J. Lee Rankin:

— which is an authorization to take possession of this man, take him into custody.

Hugo L. Black:

You claim that administrative agent has a right to order somebody seized without going before a magistrate even though there’s ample time, nobody doubts this ample time that they can go grab him whenever they see fit without going before magistrate and seize him and whisk him away.

J. Lee Rankin:

Well, that’s been done for great many years when the Court has tacitly at least in the Carlson case recognized.

The statute of Congress purports to authorize it.

J. Lee Rankin:

That’s right.

Your opponents don’t question this case.

J. Lee Rankin:

No, they admit that the — the arrest was proper.

It was conceded throughout the — the lower courts.

Felix Frankfurter:

In effect of making the so-called administrative office‘s magistrate, is that right?

J. Lee Rankin:

Well, it’s still less than a criminal proceeding.

Felix Frankfurter:

With the Chief Justice’s permission, I must trouble you with one more question, and I think I am praying on your side as on that in this question.

The Giordenello case, let’s get things straight, I will understand that if the Government or anybody else seeks to justify a judgment on a theory which would have involved examination of a witness in order to determine the validity of the theory and those such examination was made or opportunity given because the theory wasn’t advanced, you can’t espouse that theory in sustaining the judgment.

That’s Giordenello.

You got a different doctrine which may or may not be applicable to this situation that if the record that it comes here permits sustaining a judgment which doesn’t require any testimony to contradict or to qualify, but on the face of the record permits the judgment to be vindicated on a theory not advanced for anybody neither counsel or the lower court.

This Court is not debarred, indeed it — its duty to sustain that judgment because we hear review judgments and not talk and therefore, I suggested to you, that you could sustain this judgment on any theory so not advanced heretofore subject to the qualification of the Giordenello case, namely, that it wouldn’t have required examination of witnesses because in the Giordenello case, what was involved for the examination of witnesses in order to satisfy, if it could be satisfied, the requirements of Texas law.

I do not know on this record whether the second theory, the other theory, which you say you advanced here for the first time, namely, that on this record, the arrest and the search were justified, not merely on the administrative process so-called but because a crime was committed in the presence of the arresting officers and the searching officers.

If the record sustains that, then I think you’ll open to sustaining it on that ground and this Court is — is open and entitled to it, indeed must, if it can sustain the judgment below on that ground.

Those are two very different things.

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J. Lee Rankin:

We think that the record so sustains and the record was made by the petitioner, we’re calling (Voice Overlap) —

Felix Frankfurter:

Well, it — it may have been by the petitioner but on the basis of the issue as shaped by the Government.

And that would — if that is so, and the testimony might bring out a — a different result, then you would in Giordenello, but if the record doesn’t present such a situation, then Giordenello has nothing to do with the case.

J. Lee Rankin:

Well, I think the testimony was exhausted on that question.

Felix Frankfurter:

All right.

Then it isn’t Giordenello.

William J. Brennan, Jr.:

Now, what crime was being a crime or crimes that was being committed in the presence of the arresting officer?

J. Lee Rankin:

He was claiming to — trying to maintain a fictitious identify and was not — at that time had not reported and was not reporting at the moment his location in violation of the statute.

William J. Brennan, Jr.:

Now, would that then to say that the possession of the two birth certificates or the vaccination certificate and of the bank book were evidence of the commission in the presence of officers of that crime?

J. Lee Rankin:

And he also stated that his name was Martin Collins.

William J. Brennan, Jr.:

So that — those then were the evidence of the commission in their presence of the crime you just described.

J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

Now, as to the code up the sleeve, what was that?

J. Lee Rankin:

That was evidence of the espionage.

William J. Brennan, Jr.:

Commission of the crime of espionage.

J. Lee Rankin:

Yes.

Earl Warren:

Mr. Donovan.

James B. Donovan:

May it please the Court.

Although I reserved time for a reply, I’ll make no detailed reply.

I believe that most of the arguments that I’d set forth are contained in my reply brief, which I commend to your earnest asserting.

However, I should like to — to make a — a few observations with respect to some of these matters that have been brought out this morning on questioning by the Court.

Mr. Justice Brennan, this discussion of seven items can be very misleading.

If I could direct your attention to page 41 of our brief, Appendix C, Your Honor will find that there are over 40 items involved here —

William J. Brennan, Jr.:

Yes.

So were they all taken from the Latham, Mr. Donovan, or (Inaudible)

James B. Donovan:

Either — either, Your Honor, as you will see, that all of these items were used by the Department of Justice in the case and they were either seized in Latham or else obtained in the studio on a search warrant, which was obtained solely by residing everything found at the Latham.

So that all of these items, we believe under the decisions of this Court, are involved in this case.

That’s point number one.

Our point —

Were they admitted into evidence under those —

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James B. Donovan:

These are all set forth, Your Honor, in Appendix C.

But —

James B. Donovan:

Those —

(Voice Overlap) admitted into evidence of the crime?

James B. Donovan:

Yes, Your Honor.

(Voice Overlap) —

James B. Donovan:

Yes, Your Honor, as exhibits and we’ve — we’ve listed here not only — not only on page 41, not only identification of the record where it was offered but also where received.

Now, second —

Felix Frankfurter:

The exhibit number, if you give the exhibit numbers, those are admitted into evidence.

James B. Donovan:

Yes, Your Honor.

Felix Frankfurter:

All right.

James B. Donovan:

Now, secondly —

Charles E. Whittaker:

Now, I just — are you telling us that this exhibit shown on page (Inaudible) Appendix C.

It all takes it from petitioner’s room on his (Inaudible)

James B. Donovan:

Your — Your Honor, to clarify for the Court, we have divided them into four different categories.

Item C is to the Latham which were introduced as exhibits.

Item C is to the Latham which were used to obtain the exhibits introduced.

Charles E. Whittaker:

Well, talking about derivative matters, now.

James B. Donovan:

Well, Your Honor, these are under the decisions of this Court and of the Second Circuit.

Charles E. Whittaker:

Do you contend that there was taken by the I.N.S. agents from this room anything more than the two birth certificates, the vaccination certificate and the bank book and this numerical coded message?

James B. Donovan:

Do they take from the room, Your Honor, they cleaned out the room.

Charles E. Whittaker:

(Voice Overlap) by I.N.S.

James B. Donovan:

By I.N.S.

They cleaned out the room of everything — everything that was in there, except these items which the Government say he voluntarily abandoned while, believing he was under arrest and surrounded by armed guards and so on, but he voluntarily abandoned these —

Charles E. Whittaker:

Then your argument that what he took, in the way of his clothing, they took.

James B. Donovan:

Well, it’s perfectly obvious —

Charles E. Whittaker:

Are you —

James B. Donovan:

— Your Honor, that —

Charles E. Whittaker:

Are you —

James B. Donovan:

— that someone may — of course, someone may be helping me pack but if he has a gun on me at the same time, which is not a way to describe what he’s doing to say he’s helping me pack.

Audio Transcription for Oral Reargument – November 09, 1959 (Part 1) in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 2) in Abel v. United States

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Hugo L. Black:

Then you’re going to take (Inaudible)

James B. Donovan:

Well, Your Honor, he was naked when he was seized.

[Laughs]

Potter Stewart:

Now —

Tom C. Clark:

(Voice Overlap) couldn’t think anymore than (Inaudible)

James B. Donovan:

With respect to Justice Frankfurter’s question about the Harris case, the point involved here is far more fundamental than relying on the Harris case.

I’ve used the Harris case, the terminology used and it’s simply because that the decision of the Court is applicable.

The point here is far more fundamental.

No matter how we try to get around it, by any kind of elaborate argument, the fact remains that a man was made to disappear in the United States for three days with all its effects based on an administrative process, which is returnable to no one except the man who issues it, makes no provisions for counsel, makes no provision for search or seizure and the man is hold off to a distant place and on this evidence is convicted of a capital crime.

Now, I see that in our time, the only place that criminal procedures have been based on such a process have been in the police states of Nazi Germany, Soviet Russia on their satellites never in this country.

Now, finally, throughout this case, there’s been elaborate discussion of the national defense and how that’s so important with respect to this man’s conviction.

But I wonder if this isn’t a very unwise oversimplification of this matter.

The fact is that — that if we look perhaps 20 years, I suggest to the Court, 25 years, when God willing, the Russian people are really free, perhaps aligned with us against Great China as a common foe.

Looking back with a benefit of hindsight, what will we see as having been the most important weapon in — on national defense?

I think we will see what the benefit of hindsight, how important it was to keep military preparedness, how important it was to use the F.B.I. and other internal security agents to prevent suppression at home.

But I suggest to the Court that it will be found with the benefit of hindsight that the most potent weapon in our arsenal defense turns out to be our way of life.

Best epitomized perhaps in that simple phrase due process of law and it is that maintenance of that way of life, the maintenance of due process of law held before the other peoples in the world that I suggest to you in an age of intercontinental missiles with hydrogen warheads will turn out to have been a strongest weapon of defense.

I close my argument the same words with which I closed my affidavit in the District Court in commencing a proceeding to suppress this evidence, and I quote “Able is an alien charged with the capital offense of Soviet espionage.

It may seem anomalous that our constitutional guarantees protect such a man.

The 0(Inaudible) may view America’s conscientious adherence to the principles of a free society as altruism so scrupulous, that self-destruction must result.

Yet our principles are engraved in the history, in the law of this land.

If the free world is not faithful to its own moral code, there remains no society for which others may hunger.

Felix Frankfurter:

Before you sit down, Mr. Donovan, may I ask you a question?

Sit down — before you sit down, I’ll try to —

James B. Donovan:

Yes, Your Honor.

Felix Frankfurter:

— only to minimize your (Inaudible) by asking a technical question.

Is there any case in this Court, I should have asked this to the Solicitor General, is there any case in this Court dealing with deportation in which this Court considered the scope of the right of search and seizure under the Fourth Amendment in relation to deportation (Voice Overlap) —

James B. Donovan:

I know of none.

Felix Frankfurter:

None.

All right.

Audio Transcription for Oral Reargument – November 09, 1959 (Part 1) in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 2) in Abel v. United States

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Earl Warren:

Mr. Donovan, before you — before you sit down, on behalf of the Court, I would like to express our appreciation to you for the service that you have rendered to the cause of justice by appearing for this defendant because we understand the situation.

He was unrepresented in the District Court and the District Judge requested the bar associations of Brooklyn and of Queens County to recommend names of lawyers who were capable of and who might be willing to conduct the defense of this man as a public service and not for compensation, that the bar associations did recommend you that the — that the Court appointed you that you served during this long and arduous trial in the trial court.

You pursued it in the Court of Appeals and to this Court.

I — I think I can say that in the time I have been on this Court that no man is to undertake him for that reason, for that purpose, a more arduous nor self-sacrificing service.

And we feel indebted to you and to your associate, Mr. Debevoise, for — for having done so.

It gives us a great feeling of comfort to know that judges, trial judges and members of bar associations and members of our bar are willing to undertake this sort of public service in a type of case which would normally be offensive to them.

We thank you very much.

James B. Donovan:

Thank you, Your Honor.

Earl Warren:

And, Mr. Solicitor General, of course, as always, we — we appreciate the — the fervent manners in which you represent the interest of the United States of America.