Abel v. United States – Oral Reargument – November 09, 1959 (Part 1)

Media for Abel v. United States

Audio Transcription for Oral Argument – February 24, 1959 in Abel v. United States
Audio Transcription for Oral Argument – February 25, 1959 in Abel v. United States
Audio Transcription for Oral Reargument – November 09, 1959 (Part 2) in Abel v. United States

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

Earl Warren:

Number 2, Rudolf Ivanovich Abel, also known as “Mark” and also known as Martin Collins and Emil R. Goldfusg, Petitioner, versus United States of America.

Mr. Donovan, you may proceed.

James B. Donovan:

Mr. Chief Justice, may it please the Court.

This case comes before the Court on reargument.

It was argued in February this year.

In March the Court ordered reargument on specific constitutional issues concerning our contention that there was a violation of the Fourth Amendment of the Constitution pertaining to search and seizure.

It will be my plan on reargument to briefly review the facts once again for the Court and then advance to my contention that this case involves issues of great importance to United States, not only with respect to important phases of its national security, but also with respect to what I shall contend of violations of fundamental rights and liberties that affect every person living in the United States.

To briefly review the facts, this case began in May of 1957, when the man named Reino Hayhanen appeared in the American embassy in Paris and stated to the local representative of the Central Intelligence Agency attached to that embassy that for several years, he had been engaged in espionage in the United States, where he operated under a man known to him only as “Mark”.

He described the man with some particularity.

He produced indeed a hollowed out coin which was recognized by the local attaché as a type that could be used in the transmittal of espionage materials.

He was brought back to the United States and turned over to the F.B.I., who then proceeded to go to his home in Peekskill, New York, where a great many other objects which would tend to sustain his story, were uncovered.

Now, meanwhile, he, having identified not only Mark, but also the — the place in which he was maintaining an artist’s studio on Fulton Street in Brooklyn, the F.B.I. commenced a complete surveillance of this individual not only where he operated the artist’s studio in Brooklyn, but also where he lived in the Hotel Latham in Manhattan, across the river.

On June 20th, 1957, the F.B.I. having previously alerted Immigration and Naturalization, both being component parts of the Department of Justice, to the existence of the suspected espionage agent, on June 20th, conferred in Washington with Immigration and Naturalization and requested Immigration and Naturalization to apprehend the man on an administrative warrant normally used by Immigration and Naturalization to apprehend the person with deportation.

Felix Frankfurter:

Had anything come through Immigration and Naturalization to indicate that this presented our case where they have duty of investigation of this?

James B. Donovan:

A memorandum was submitted, Your Honor, to Immigration and Naturalization, which on the one hand identified the man as an alien, living illegally in the United States.

But as Your Honor will find, this memorandum originally came up under seal to this Court.

It since has been declassified, has been made available to the Court.

And as Your Honor will find, the great bulk of the memorandum deals with the man as a suspected espionage agent.

Felix Frankfurter:

But there was a reference to his illegal presence in the country?

James B. Donovan:

Yes, Your Honor, there was.

Felix Frankfurter:

And that was before this meeting, this confabulation between the F.B.I. and Naturalization?

James B. Donovan:

That is correct, Your Honor.

Earl Warren:

But that memorandum was from the F.B.I., was it?

James B. Donovan:

Yes, it was, Your Honor.

Now, at this meeting in Washington, it was agreed then that this procedure should be followed and that evening of June 20th, men from Immigration and Naturalization and from the F.B.I. went to New York where they took a prepared warrant for his apprehension to the acting District Director of Immigration, who proceeded to execute that warrant.

The Immigration and Naturalization officers then spent the night at F.B.I. headquarters in New York.

And the following morning, in accordance with a prearranged plan, proceeded to the Hotel Latham.

Also in accordance with a prearranged plan, instead of Immigration and Naturalization participating in the first discussions with the suspect, the Immigration and Naturalization officers remained outside in the hall and also in a room next door to the suspect which was occupied by the F.B.I.

And in accordance with prearrangement, the F.B.I. agents knocked on the door.

It was 7 o’clock on the morning of June 21st.

James B. Donovan:

When a man opened the door in response to the knock, two agents of the F.B.I. pushed their way in and proceeded to identify themselves to the suspect.

After identifying themselves —

Hugo L. Black:

Inclined as to the forcible entry?

James B. Donovan:

I beg your pardon, Your Honor?

Hugo L. Black:

Inclined as to the forcible entry?

James B. Donovan:

The words that I used, Your Honor, that they pushed their way into the room, a direct quote from the F.B.I. agent’s testimony in the hearing below.

The extent of the — of the forcible entry is neither —

William J. Brennan, Jr.:

They didn’t — they break the door down?

James B. Donovan:

No, Your Honor.

There is no need for that.

He had opened the door in response to the knock.

Felix Frankfurter:

You don’t know how far the door was opened?

James B. Donovan:

Yes.

I believe there was testimony that he slightly opened the door and said, “Who’s there?”

And they pushed their way in and they then produced their credentials and explained that they were agents of the F.B.I., all incidentally, what I’m telling is to the best of my knowledge, undisputed facts, developed from the government witnesses.

They proceeded not only to identify themselves as agents of the F.B.I., but as they explained, their first act was to explain to the suspect whom they addressed as colonel, the jurisdiction of the F.B.I. with respect to internal security matters.

They further more said to him, “Colonel, we have information leading us to believe that you had been involved in espionage.”

They said, “Unless you will cooperate” and this is an important phrase in this context, “Unless you will cooperate with us and tell us what we ask you, unless you do that, you will be put under arrest before you leave this room.”

Abel refused in effect to say anything.

He stated that his name was Emil Goldfus, at one point.

Another point, he stated that he was registered in the hotel under the other name of Collins.

He made some references to having then born in the United States and having principally lived in New York, but he refused to discuss anything else.

Now, after a half hour had been devoted by, now, three F.B.I. agents, where a third have subsequently entered the room, after a half hour of a fruitless endeavor to persuade him to cooperate, the F.B.I. agents went to the door, signaled to the waiting immigration officers, who then entered the room and proceeded to serve Abel with the two warrants, which have been discussed at great length before the Court.

Felix Frankfurter:

Mr. Donovan, may I ask you not to argue, but just to state your conclusion whether what happened up to the time that they signaled that you just put in?

The Naturalization Immigration people to make the arrest, up to that point, did you claim below or do you claim here, there was any violation of any provision of the Constitution or any statute of the United States?

I don’t want an argument, I just want an —

James B. Donovan:

He answered it.

Felix Frankfurter:

— improbable record.

James B. Donovan:

The answer is yes, Your Honor.

It is virtually one book law in law enforcement that before a man can be confronted and questioned, he is to be put under arrest.

Charles E. Whittaker:

I didn’t understand you.

James B. Donovan:

It is — it is, Your Honor, a established law that before a man can be subjected to questioning in this manner and apprehend, if we want to call it that, two armed men, wake you up at 7 o’clock in the morning and push their way in into the room, display credentials, proceed to question you for a half hour.

I’m saying that there is case law to be effect that that cannot be done until a person has been legally put under arrest.

William J. Brennan, Jr.:

But — but Mr. Donovan —

James B. Donovan:

Sir.

William J. Brennan, Jr.:

— if you raised this under most of the threats that constitutes acquittal?

James B. Donovan:

I believe that you will find, Your Honor, that on a motion to suppress, that we’ve raised every conceivable argument that can be raised with respect the entire set circumstances that we’re talking about.

Now, could I for a moment, divert from my narrative to deal with this question.

In the last two briefs that the Government submitted, I find that they have contended that some of these issues that are now before this Court, where never raised for consideration in the United States District Court.

Well, I’ve stated in my brief that these contentions rather belated by the Government are probably attributable to a reluctance to face these issues.

However, first of all, you will find that in the Government’s brief why — what is almost a play on language they have taken out, I believe out of context, some statements that were made in colloquy in the District Court.

Those statements, Your Honor, will find deal with our responses to such questions as, “Do you contend that Immigration and Naturalization had no valid right to apprehend this man for deportation?”

Our answer is, and it still is, no.

I have never contented that this warrants are invalid for oral purposes.

There’s no reason I should, I don’t have a deportation case, I have a case where a man was indicted, tried and convicted of a capital crime on this process.

And there’s no reason why I have to go beyond.

What I’m arguing, my defendant did not receive due process of law.

These questions about whether or not they could be valid with respect to deportation are hypothetical questions that aren’t in this case.

Now —

That means that qua deportation, you concede the validity of this warrant, is that right?

James B. Donovan:

If Your Honor would like that, I will assume it arguendo.

Let me put it that way.

Conceded — he’s accepted —

Well (Voice Overlap) —

James B. Donovan:

I’m explaining, Your Honor, I’ve never even researched the point.

The Government —

But the point is you do not rely —

James B. Donovan:

That is correct.

— on — in your case on the — any alleged infirmity of the warrant qua a deportation warrant.

James B. Donovan:

That’s correct, Your Honor, because that is not the gravamen of my province.

James B. Donovan:

Now —

Yes, I’m wondering (Voice Overlap) —

James B. Donovan:

Now, these until recently, it had seemed to me that my original affidavit put in, in United States District Court and which is printed in the record before this Court, made so clear these fundamental contentions that I’m making that it would be perfectly evident that there is no ground to say that some new issue is being raised before this Court.

However, in the last brief of the Government, you will find at least a half dozen references to these new contentions and these new issues.

Now, it maybe that the Government never fully understood my contentions, but so far as saying that they weren’t advanced in the District Court, this is simply nonsense.

Felix Frankfurter:

Mr. Donovan, may I suggest this, I think I’m — he claims for breaking into your narrative, I just want to (Voice Overlap) —

James B. Donovan:

Well, all right, Your Honor.

Felix Frankfurter:

May I suggest, instead of presenting that — wouldn’t you say that the one of apprehension for illegal presence in the country, a deportability on that ground was not an illegal — that apprehension for that purpose was not illegal, then a question may arise, I do not say it does arise, it may arise, whether certain consequences on the basis of that legal apprehension do not cloak in relation to the seizure — of a search and seizure of Government.

I’m not suggesting you should argue that —

James B. Donovan:

This —

Felix Frankfurter:

— I’m merely suggesting that that makes it irrelevant as I understood it of the question put by my Brother Harlan.

James B. Donovan:

This — this, Your Honor, would be highly compartmentalized thinking.

Felix Frankfurter:

Im not saying it is but —

James B. Donovan:

Furthermore, may I point out that if you go down that road and you try to examine each one of these propositions in its own little compartment, the rule of law laid down by this Court to govern the procedure in future cases of suspected alien espionage agents, obviously will permit the end of any criminal warrants being obtained.

Obviously, these warrants are very handy little instruments.

Felix Frankfurter:

The other side —

James B. Donovan:

If — and —

Felix Frankfurter:

— the other side is, Mr. Donovan that the fact that a man may also be an espionage suspect, ought not to preclude the Immigration and Naturalization Service in carrying out the law against illegal residents in this country.

I’m not suggesting either of these your proposition of mind answer the problem of this case.I merely suggest that they’re involved.

James B. Donovan:

They certainly are involved, Your Honor.

But, while I have said to Justice Harlan that I’m perfectly willing to assume arguendo, the legality and validity of those warrants with respect to deportation, I again want to emphasize that I have not researched this question and indeed in my judgment, in certain cases of deportation, I would think that lacking fundamental procedural safeguard for the lacking and the present form of these warrants that there could be great question as to their constitutionality even in that (Voice Overlap) —

Well (Voice Overlap) —

James B. Donovan:

But isn’t my case.

That’s not your case —

James B. Donovan:

Well —

— I just want to be — make sure I understand specifically.

James B. Donovan:

Now, in —

In relation to the questions put by the Court or some of the questions put by the Court in the order for reargument, as I understand it, you do not contend in this case that the administrative warrant was invalid under any statute which governed its issuance.

James B. Donovan:

The administrative warrant, Your Honor, is valid in the sense that it can conforms to the statutes.

Yes.

What I mean, I’m not talking about the consequences that throw him the warrant.

I’m just taking about the validity of the warrant itself.

James B. Donovan:

The warrant complies with the statute, but I’m explaining, if instead of being assigned to an espionage case that put aside to a deportation case, I might have made other arguments (Voice Overlap) —

I’m talking about the validity of the warrant within the confines whatever they are the deportation case.

You’re not questioning the validity of the warrants.

James B. Donovan:

Not before me, it’s a hypothetical question.

And that includes no attack on the validity of the warrant qua deportation from the point of view of the Fourth Amendment.

James B. Donovan:

Your Honor, insofar — again say as this case is concerned, I claim the entire process is invalid with respect to how it would come up under rather circumstances in a deportation case, where they did deport the man, as I say that — that’s a separate question.

But I agree with you that my argument does not necessarily rest on this invalidity.

Now, with the Court in of course reviewing my case, concludes that these warrants are invalid for all purposes.

That’s within the province of the Court.

But such a contention is not essential to my case and my judgment.

We’d be going outside the four corners of the argument, if we viewed the case in that standpoint.

James B. Donovan:

Well, it’s a matter of opinion, Your Honor.

Felix Frankfurter:

You say, you do not want him to discover the immigration warrant from the brutality of the arrest, trial and conviction, an affirmative conviction of the petitioner for the crimes for he was which —

James B. Donovan:

It would be absurd to do so, Your Honor.

It’s like writing a series of seven different Law Review articles, each dealing with it.

You take the Government’s brief, the latest Government brief and you will find that they talked about the arrest over here as though it were a separate subject and the search and seizure over here as an entirely separate matter, this is absurd.

The search and seizure I’m complaining about is not with respect to the how it — perhaps a short wave radio, I’m talking about the seizure and search of a human thing.

A man who was held incommunicado for at least the Government can say three days.

The search and seizure and the arrest whatever we wish to quote, they’re all part and parcel or inextricably entwined.

The part of process used in this case.

Now, because in the Government’s last brief, there are a half dozen references to these new issues that have come up before the Court that the Fourth District judge never had a chance to consider and which might have bravely all to mistakenly suggest, this showed such as a monumental lapse of memory on the part of Department of Justice that it began to give me some concern for my own.

So, accordingly, notwithstanding the presence in the record of my affidavit, last Friday, I went over to the United States District Court for the Eastern District of New York and dug out of their files and borrowed from them, a copy of the first memorandum of law, which I submitted in this case.

In other words, when I brought this action to compel the suppression of this property as evidence, I not only supported it with that affidavit which is printed in the record, but I supported it with a memorandum of law.

Now, I’d like to read to the Court the last couple of paragraphs of this memorandum of law.

And I do this not only because it will show the Court that there is nothing to the Government’s contentions that these are new issues, but also because it happens to be as able a summary of my entire case today as I possibly could make.

This is page 15 of the original memorandum of law, “From the foregoing, it is clear that an immigration warrant issued by agents of the Department of Justice, is not a warrant charging the alien with the commission of a crime.

Therefore, it cannot be the basis of the lawful search and seizure,” cf. Robinson against Richardson, 13 Gray 454, cited with approval by the Supreme Court of the United States in Boyd against the United States, supra.

An executive procedure such as that employed to obtain an immigration warrant in which the Attorney General is accountable only to himself without any of the safeguards discussed above, cannot and should not be the basis for a lawful search and seizure to procure evidence for use in the prosecution of a capital crime.

James B. Donovan:

Petitioner’s property in Room 839 of the Hotel Latham was search and seized on June 21, 1957, without legal warrant.

The Constitution of the United States in Rule 41 (e) of the Federal Rules of Criminal Procedure, are clear in providing that such property must be returned and suppressed for use as evidence in any criminal proceeding under the Laws of the United States.

In other words, what you’re saying is that if the Court sua sponte so to speak, wants to inquire into the validity of this warrant, leaving aside the question of the search following from the warrant, has stated the record as such that the Court is not foreclosed in considering it.

James B. Donovan:

I believe so, Your Honor.

Now, with respect to matters of this sort first of all, to be practical about it, it is very difficult in the course of the heat of the trial of this magnitude to make every legal contention the trial counsel makes, with all the learning and the accuracy that he might — the following — some are spend in an article for the Harvard Law Review, that’s axiomatic.

And secondly —

But first, you got to go down.

James B. Donovan:

Secondly, it’s been my experience that counsel on any given point, becomes a little more articulate on it the longer he lives with it.

However, in all planners not withstanding those, what I’m saying is based on the original memorandum of law, the only embarrassment that I find in this entire matter, is that, it’s quite evident that I haven’t had a new thought on this subject in the past two years.

Felix Frankfurter:

As I understand you’re argument, to get a — you’re arguing your case not ours, but it is my case.

As I understand your argument a little differently, it is that you’re not here to challenge (Inaudible) the arrest, the apprehension under the administrative warrant for legal cases.

You’re not here to challenging what inquiredly under such authority of the arrest — for arrest.

Either didn’t the search and seizure of documents relevant to — exclusively relevant to deportation, you’re saying things that right here has travelled far outside what an administrative warrant or any implied right from search and seizure would have justified.

James B. Donovan:

The simplest way to state my position is that insofar as anyone of these procedures is pertinent to my case which is the conviction of the man for the capital crime of espionage, I challenge it insofar as it’s not pertinent to my case and there is no need for me to go beyond it, I’m assuming, I’m arguendo.

Felix Frankfurter:

The question is whether you challenge it, whether you not challenge it, it maybe very important to whether — it maybe very important whether or not, being (Inaudible) or whatever reasons you chose not to challenge the legality of arrest for deportation, you just challenged that.

Now, as Justice Harlan said the consequences of that maybe another case, but you can’t come here as far as I’m concerned and say you now have a challenge, the warrant for apprehension for deportation, restricted to that legal act on the consequence of that legal act.

James B. Donovan:

Ordinarily — ordinarily, Your Honor, it’s my understanding of the rules of this Court indeed, that the Court doesn’t pass on hypothetical questions and I have simply studied this and challenged it and did in the District Court, as I believe this memorandum showed there’s no change from my —

Felix Frankfurter:

I’m suggesting that a missing hypothetical to consider whether it is relevant that if the warrant of arrest or deportation not challenged impliedly in law to authorize and use — make certain doctrine of — and it didn’t challenge that, that maybe relevant to the consequences of that as far as the criminal prosecution.

I’m not saying it is, but it’s made it.

James B. Donovan:

Your Honor, I do — Your Honor, I do believe that to the extent that — that it was in this case — I challenged it on every one of those grounds.

Now, I’ve pointed out to Justice Harlan and indeed, have pointed out not only in my oral argument the last time, but you will find in my petition for certiorari that I pointed out with respect to this warrant itself that it — it is quite totally lacking in normal procedural safeguards.

I pointed that out.

I furthermore, pointed out that there’s a legislative history to these warrants and that I gave citations to how at one point in the past, procedural safeguards were created with respect to these warrants, but then, that that was removed.

So, that all — all of these arguments, Your Honor, I did make.

The only thing I do again come back to is that if the Court finds that I have not treated the deportation phase of this in the sanctity that I have everything else, it is for the simple reason that I have never felt I was handling a deportation case.

The man was not deported.

The man instead was indicted, tried and convicted of a capital crime.

Felix Frankfurter:

In the question regarding your petition, in state what I believe to be that the States are correct (Inaudible) namely, whether the Fourth and Fifth Amendment of the Constitution are violated when Article 12 (c) are unrelated.

The point you make is that — that even though you may have said I’m not challenging the validity of our administrative warrant and the legal implication to their problem, I do challenge their travelling outside what such a warrant authorized.

Is that what you said in you’re (Inaudible) that factor is pertinent to your case.

Felix Frankfurter:

(Voice Overlap) —

James B. Donovan:

Yes.

I did —

Felix Frankfurter:

— your present argument.

James B. Donovan:

I did, I did, Your Honor, but could I point out that — that my first question in the petition for certiorari was far broad and more fundamental.

The first question is, whether the Fourth and Fifth Amendments of the Constitution of the United Stated are violated by a search and the seizure of evidence without a search warrant.

After an alien suspected and officially accused of espionage was been taken into custody for deportation pursuant to an administrative Immigration Service warrant, but is not been arrested for the commission of a crime.

And this Court granted me certiorari with respect to that first basic question.

This second question, Your Honor, is related, but is separable.

Felix Frankfurter:

I’m having a hard time to find anything but I’m with your statement and your position.

James B. Donovan:

Your Honor, if you can win this case for me [Laughter] I hope it was more than appreciative.

Felix Frankfurter:

I mean (Voice Overlap) —

James B. Donovan:

[Laughs]

Now, at the same time that this man was served with these warrants in Room 839 of the Latham, at 7:30, the morning of June 21st, he then had all his effects in his room seats this by Immigration and Naturalization, but in the presence of the F.B.I. officers.

They then took Abel and his effects to immigration headquarters where he’s fingerprinted.

And then that afternoon was taken to north airport, placed in a special plane with two Immigration and Naturalization agents and flown down to McAllen, Texas, where for three days, he was questioned repeatedly, continually by agents of the F.B.I. and immigration officials.

Two of the men who had been in on the original seizure of Abel in the hotel room were flown immediately down to Texas and participated in what transpired.

Now, I won’t go into what has never really been contradicted by the Government and which Abel has sworn to in an affidavit to the effect that he was offered every kind of inducement to cooperate and come over with the United States including the offer of the position in the Federal Government.

But, suffice to say that for that period of time, and until he was given a deportation hearing which is a departmental hearing, which he had local counsel down in Texas, it was six weeks later that for the first time upon his being indicted back in Brooklyn, it was six weeks after his seizure that for the first time this man appeared in a Unites States court.

Now, this is the set of facts with which we have to deal.

Now, what is the significance of the issues that are before the Court?

Is this just another case such as those that the Government has been citing in their brief of (Inaudible) against the Commissioner and whether or not, he should have used the bread knife when they apprehended him for deportation.

Is that all that’s involved in this case?

Definitely not.

This case involves tremendous problems of great importance to the United States.

These problems are very old problems in world history.

They happen for reasons which I will explain in a moment, to come for the first time before this Court, because they couldn’t quite have come in the present context before this Court until 1947.

Now, what are these problems and what are the basic issues that this Court should resolve?

The basic issue is the measure to which it — a — those possessing power of internal security in any country are permitted, in the interest of internal security, to infringe the constitutional rights of people living in that country.

Now, this is a very old problem.

James B. Donovan:

It existed back with the Roman emperors as to who controlled the praetorian guard.

It existed under the Medicis.

It existed in England for centuries, existed under Richelieu, France.

It existed in our own date, culminating in the Gestapo in Nazi Germany and the Cheka in Soviet Russia.

This is a tremendous problem to what degree in the interest of internal security do you permit?

Those living in the country to be deprived of basic liberties.

We will have seen in our own time examples of these.

Of both phases of what I have mentioned actually, we not only have seen the manner in which a tyranny can keep itself in power by the control of its internal security forces, we have also seen when Korea became premier of Russia, how he who controls internal security can assume the throne.

Now, in the United States, until the National Intelligence Act of 1947, the United States had never had a true intelligence and counterintelligence setup.

In England, they’ve had it since the time of Queen Elizabeth.

But in the United States, we never did.

Actually, during war time, officers would be assigned to G2 or O&I normally as anyone with service experience knows at that time, peak on the ground, they’re either too young or not properly fitted to command troops or command a ship.

And G2 and O&I, and these various set of forces actually worked all alone — it is very little communication between them.

For the first time during World War II, a coordinated United States Intelligence Service was created.

Now, at the conclusion of World War II, with the dissolution of the Office of Strategic Services, this tremendously important problem was reviewed by Congress.

It’s perfectly evident that in a day of intercontinental missiles armed with thermonuclear warheads, it is vitally important to the United States that we — the — the decisions that we make are policy decisions by the President, by the State Department, be informed decisions.

This is very important.

To what extent can we ascertain the — not only the capabilities of foreign nations, but their intentions toward the United States.

If for example we had reliable intelligence that the Communist world did not intend military conquests, but were relying on economic warfare and propaganda, think of the tremendous impact his would have on the day-to-day economy and tax problems in the United States.

Now, bearing all these in mind, in 1947, after several years of study of this problem, Congress acted and Congress created the Central Intelligence Agency.

Now, citations to all these appear in my briefs.

You’ll find no reference to any of these matters in any of the Government’s brief.

But the Court will find when it examines these statutes and the legislative history of them that while on the one hand, Congress was very determined to — to create a permanent Central Intelligence Agency such as now exist.

It was equally determined to see to it that that agency did not operate within the continental borders of the United States, where it could become an agency in which the internal security functions began to transcend the rights of our individual residents in the United States.

Accordingly, the Court will find that just as Congress caught out this area for the Central Intelligence Agency, they reserved all domestic problems to the Federal Bureau of Investigation within the Department of Justice.

Now, this is what this case is all about.

This is not a simple deportation matter.

These are matters of fundamental importance.

Now, in my principal briefs, on page 12, I caught the Court’s attention to an extraordinary statement.

And I would like to read this statement to the Court because it is so pertinent to what this case is really all about.

James B. Donovan:

And I want to read it for the simple reason that although this statement was included in the first affidavits I submitted in the United States District Court, from that day to this, no reference to this statement has ever appeared in any Government brief, nor any reference by the District Court, nor by the Circuit Court of Appeals.

Now, what does this say?

First of all, it is taken from a bestseller which by now has been read by hundreds of thousands of the United States citizens.

The title of the book is, “The FBI Story” by Whitehead.

And as I point out, the foreword is authoritative.

It’s by J. Edgar Hoover, Director of the F.B.I.

He states that the F.B.I. has complete confidence in the author’s integrity, ability and objectivity and the facts reported are supported by the Bureau’s record.

Now, with respect to how this law enforcement agency which has these counterintelligence powers is operating today with respect to a suspected espionage agent, what do they say?

“The F.B.I. conducts two types of security investigations, one-to-one cover admissible evidence, to be used in the prosecution of an individual or group in federal court.

The other for intelligence purposes only.”

The intelligence investigation is intended to identify and determine the activities of individuals who are potentially dangerous to the nation’s security, thereby supplying information on which to — base preventive or counter espionage action.

Often clandestine methods are necessary to uncover clandestine operations.

As for example, obtaining an espionage agent’s diary for secret papers, the evidence in the diary maybe inadmissible in federal court, but it may contain information which would enable the United States to protect itself at a later date.

This is in contrast to a case where legal evidence admissible in court has to be obtained to convict the espionage agent of violating the laws of the United States.

This is a full statement that investigations of searches and seizures are regularly conducted in — in this area and that’s the area of this case, in violation of the Fourth Amendment.

Felix Frankfurter:

There are a number of official statements — official documents or the rule of signature in which he directly commands constructive agent could use it to obey the law of the United States and not to — by indemnity.

James B. Donovan:

Your Honor, I am not being critical of Mr. Hoover in any manner.

Felix Frankfurter:

I’m not being obligatory.

I’m just (Voice Overlap) —

James B. Donovan:

No.

And I — the last objective in the world I have in getting into this is in anyway to — to embarrass his grey evidence.

However, all I am pointing out is, this is the most important part of this case.

Now, I’m not saying that this statement should be disavowed by the Government or explained by the Government.

All I’m saying is that either case where this Court is dealing with fundamentals charting a cause of action as to this entire vital area, surely the Court is entitled to have it discussed.

At least we’re entitled to know more about these clandestine operations.

Maybe I’m obtuse, but I don’t understand what substance you get out of this statement to your case.

James B. Donovan:

Well, it’s perfectly evident that — that if they wish to — to seize articles which they must show were seized in compliance with the Federal Constitution and laws, the statement is that they operate one way and that otherwise —

You mean —

James B. Donovan:

— that they operate in what they term, a clandestine way.

Earl Warren:

You mean, you read this as saying that where they’re interested in internal security, they’re lawless and where they’re interested in getting evidence for use in Court, they behave themselves?

James B. Donovan:

This is not my statement; this is a statement of a man —

Earl Warren:

Is that — is that the way you want — want this read.

Is that —

James B. Donovan:

That’s the — that’s the [Laughs] only way I would construe with this use of the English language.

Now, all that I am saying is at least this should be discussed and I’ve pointed out, it’s been ignored in every Government brief.

Now, with respect to Mr. Hoover, to me, this is the forthright direct statement of a forthright man.

All I’m saying is that these forthright qualities in Mr. Hoover, which I find quite admirable, the Government seems to find rather disconcerting.

Felix Frankfurter:

But Mr. Hoover doesn’t make these statements.

James B. Donovan:

Mr. Hoover gave his unqualified endorsement to these statements, Your Honor, in the preface to the book.

Now, while we’re on this subject —

Felix Frankfurter:

(Inaudible) fact of order of the Court, I’m not here to defend or overall I’m saying is —

James B. Donovan:

These are facts.

Felix Frankfurter:

— don’t get me followed (Inaudible) and the serious propounding (Inaudible) [Laughs] of the newspaperman writes a book and gets it to be a bestseller, for me that type of book is the bestseller doesn’t authenticate it more than this.

James B. Donovan:

Do you think, Your Honor, it would’ve been a bestseller if — if Mr. Hoover in the — in the preface had not said that the F.B.I.’s complete competence and his integrity, ability and objectivity and the facts reported as supported by bureau’s record?

Felix Frankfurter:

What makes the bestseller beyond my coverage?

[Laughter]

James B. Donovan:

Your Honor, we’re in an area where there is not too much material on this preside subject for rather obvious reasons which I could present to the Court.

I regard it as my duty to bring before you anything that is pertinent to the controversy.

Felix Frankfurter:

No one has suggested you’re not (Inaudible)

James B. Donovan:

Now, I have further argued at my brief, Your Honor, that precisely this clandestine method of operation is an accurate description of what happened to the petitioner in this case.

It’s perfectly evident, incidentally, that throughout this entire controversy, the Court will note that on oral argument the last time.

I carefully stated that I was not quarreling with what was done in this case in that prospectively, it obviously is in the best interest of the United States instead of arresting him for the misdemeanor of being illegally in the country.

That since his confederate had already come over to our side, prospectively, it is obviously in the best interest of the United States that an effort be made to secure a man who is said to be the chief of all Russian espionage in the United States and try to induce him to follow his subordinate and come over to our side.

If this can be done, it’s a triumph in counterintelligence.

At a minimum, you obtain complete information on the enemy’s spy apparatus.

Felix Frankfurter:

You’re not talking about the (Inaudilbe)

James B. Donovan:

I beg your —

Felix Frankfurter:

I don’t think it’s in the best interest of the United States ever of what any — to be violative of the constitutional law.

James B. Donovan:

I haven’t suggested that, Your Honor.

I haven’t suggested that.

James B. Donovan:

I am saying —

Felix Frankfurter:

What you have suggested when you’re saying, you’re not up — looking on this side and to think this maybe —

James B. Donovan:

No.

Felix Frankfurter:

— for the interest of the United States.

James B. Donovan:

Your Honor, this actually gets back to the discussion I was having with Justice Harlan.

What I’m saying is that in this case — in this case, I do not find it necessary to criticize what they did in making the effort to convert an enemy intelligence agency.

All I’m saying is that having gone down that road and spent six weeks down in Texas without public disclosure in this endeavor, what I’m saying is that having taken that gamble and failed, that they cannot come back up to New York, indict him, try among all the evidences that they seized is in that manner and then pretend to give lip service to due process of law.

Felix Frankfurter:

It couldn’t answer to a question of mine, when you said, I construe you that they violated the Constitution, what they did intend.

Since they violate the Constitution, I cannot believe it’s for the best interest of the United States.

James B. Donovan:

They violated in this case, Your Honor.

Felix Frankfurter:

But they did it down in Texas by giving anything (Inaudible)

James B. Donovan:

Your Honor, I think — I think that we can —

Felix Frankfurter:

(Voice Overlap) —

James B. Donovan:

Well, let me answer it this way, Your Honor.

I think that we can assume that these administrative alien warrants served many such handy purposes and that a great many similar gentlemen wind up in Mexico.

All I’m saying is that I’m defending due process of law in the United States in this case and I’m saying it was violated in this case and that if this Court permits this to — to continue and lays down a rule of law, that this can be done, it’s perfectly evident the Department of Justice no longer will obtain criminal warrants and alien espionage cases.

They’ll simply use methods of this type and I’m saying I do not believe that the Court should sanction this kind of thing when a man is prosecuted for a capital crime and convicted on the evidence thus obtained.

The premise of that argument is and what they did is illegal which is the thing we’re here to decide.

James B. Donovan:

Well, Justice Frankfurter and I were debating really more the morality of what was the — that the legality.

I’m trying as best I can to say that in this case, the man’s legal rights were violated and in the other hand that that obviously is enormously in the national interest to have effective counterintelligence.

And I’m saying that it’s up to this Court in this case, in my judgment, on these issues to lay out the pattern of conduct as to what is constitutional and what is not.

And until this Court speaks, all I can have are personal opinions.

Now, with respect — again, to what I am describing as the jugular vein of this case, since the oral argument, further light has been shed on this field and this time Justice Frankfurter, on this specific case and under the signature of J. Edgar Hoover.

A new book has been published which currently is a bestseller which is entitled, “Masters of Deceit – The Story Of Communism In America And How to Fight It.”

And I pointed out in my supplemental brief that on page 298 of that book, Director Hoover has made the following statements.

And I suggest that they’d be read very carefully.

Such was the case of Colonel Rudolf Ivanovich Abel of Soviet Intelligence, who was arrested by the Immigration and Naturalization Service in June 1957, at the request of the F.B.I., after we had identified them as a concealed agent.

After his indictment in August 1957 on espionage charges, information was made public concerning him, which the F.B.I. could not previously disclose.

Now, what does this mean?

This means that it is exactly as though I asked Director Hoover who as I have repeatedly said, is a very forthright individual, two questions, one, “Mr. Hoover, did the Immigration and Naturalization Service take the steps which they did using these warrants, getting him onto the plane, throwing him into solitary confinement in McAllen, Texas, did they take their actions at your request?”

James B. Donovan:

Now secondly, and perhaps more important, “Mr. Hoover, was it your best judgment at the time that until the man was indicted, that information concerning his activity should not be made public?”

And his answer is, yes.

Now, I am just pointing out that here are two statements which — of which in my judgment, this Court will take judicial notice.

Here are two statements on this precise field and this precise case.

And on what is the big issue in this case, which is the extent to which this Court is going to tell our law enforcement officials, the extent to which they can use this new counter-intelligent powers which they’ve invested in the United States and where the borderline must be drawn with respect to the constitutional liberties and rights of those who live in the United States.

Felix Frankfurter:

May I ask you a question?

Which domain — certainly it’s hypothetical, but I don’t think here that is here to answer.

Suppose the F.B.I. in the course of its information gathering finds out that John Smith is a deportable alien.

And suppose up to that time, the Naturalization and Immigration Service had never known the existence of John Smith or it’s his illegal presence in the country.

Suppose they then issue an administrative warrant for his arrest, let’s call it that and he is — that the court order following it was deportation.

Is that a risk, if there’s nothing more, took the facts until your assumptions are made, is that a risk and court order for deportation invalid as that any informant, because all that was done was done at the request if you please, or at the suggestion of the F.B.I.?

James B. Donovan:

Well, Your Honor, first, I’ve never had such a case and I’m not sure I’d take it if I were offered it, but —

Felix Frankfurter:

Is that the counterable case?

James B. Donovan:

But, in answer to you question, it would be my best judgment that the bureau possessing such information has indeed a duty to transmit it to Immigration and Naturalization.

But with respect to whether I could successfully protest the steps that followed —

Felix Frankfurter:

I — I’m given no steps except that they’ve acted on it —

James B. Donovan:

Yes.

Felix Frankfurter:

— and the —

James B. Donovan:

But —

Felix Frankfurter:

(Voice Overlap) —

James B. Donovan:

— but they did use — but they did use, Your Honor, under your hypothetical, they did use these administrative warrants.

And as I explain to Justice Harlan before, in a case where it did become very important to go in to every phase of those, I believe I would develop the point which I did make in my petition pertaining to the lack of procedural safeguards in these warrants.

In other words, Your Honor, if you recall, we discussed this at some length in the last argument.

It lacks virtually every —

Felix Frankfurter:

But the fact that the information on the basis of which administrative action for deportation was taken, came to information no matter how vigorously worded the — are the F.B.I., that wouldn’t be the basis according to that non-concentrate —

James B. Donovan:

Not at all, Your Honor.

I — as a matter of fact, if — if Immigration and Naturalization can’t rely in information they kept from the F.B.I., I don’t know on what else they could act.

Felix Frankfurter:

What you’ve said (Voice Overlap) —

James B. Donovan:

And the two are agencies — should cooperate together, but all I’m explaining is that there is a degree here and this entire case shows us that in which in my judgment, this man was denied due process of law.

Felix Frankfurter:

I’m not going beyond the — I’m not going beyond the — it’s a very difficult — that’s what you — that’s why we’re here in — that’s why you brought the case.

Felix Frankfurter:

It’s very different.

But I do want to make it clear, I just want to have it clear end from you who have done as that if — that the fact that Naturalization and Immigration moves at the stimulus of F.B.I., doesn’t touch the legality —

James B. Donovan:

No.

Felix Frankfurter:

— of their country.

James B. Donovan:

That’s correct, Your Honor.

And — and couldn’t, because actually under the Federal Reorganization Act, Immigration and Naturalization, it should never be forgotten and the F.B.I. of both component parts with injustice.

In other words, at least as a matter of law, the director of the F.B.I. does report to the Attorney General of the United States, as does the director of Immigration and Naturalization.

Felix Frankfurter:

He isn’t forbidden to go cross the hall and talk to the head of the other bureau who’s part of the — both of them being subordinate or one higher official did —

James B. Donovan:

As a citizen, I would — I would hope that many such conversations take place, Your Honor, on matters of mutual interest.

But this does not mean that the procedures available to the one for certain purposes can’t be used in another way.

Accordingly, for all the reasons which I’ve set forth before the Court and with the authorities that I have set forth in the briefs that have been submitted to the Court, it’s my contention as it was in the District Court, that the seizure of this man, seizure of all its effect, using these administrative warrants, taking him down to Texas, and six weeks after he was seized, first seeing the inside of a court and then on that background, that the man be indicted for a capital crime, tried and convicted on the massive evidence produced in that manner is my contention that the rights granted to all in the United States under the Fourth Amendment of the Constitution, have been violated that this judgment must be reversed, the matter remanded to District Court for further proceedings, not inconsistent with the decision of this Court.

Thank you.

Tom C. Clark:

Mr. Donovan, do you have a copy of (Inaudible) —

James B. Donovan:

I’m sorry, Your Honor, I didn’t hear you.

Tom C. Clark:

Do you have a copy of your charge, first memorandum?

James B. Donovan:

I have this, Your Honor, but this belongs to the Eastern District Court and I promised to return it, but I can if Your Honors would wish this, I — I frankly assumed that copies of these came up with the entire record.

I only found yesterday afternoon that there comes up to this Court only what’s on the docket and they don’t docket these.

I will be very happy to have this reproduced and properly furnished and its sufficient member to the Court.

Earl Warren:

I think we can — we can relieve you of that responsibility, Mr. Donovan, if you would leave that with us, we’ll — we — we can post that (Voice Overlap) —

James B. Donovan:

I’m very glad to, Your Honor.

Earl Warren:

— that are necessary.

Thank you Mr. Donovan.

Mr. Solicitor General.

J. Lee Rankin:

Mr. Chief Justice, may it please the Court.

While it’s pressuring the minds of the Court for the argument of counsel for the petitioner, I’d like to deal just for a moment, with the question of whether this particular issue is properly before the Court and later I would like to develop that at length, but since it’s been called to the attention of the Court, I’d like to call attention to the evidence on that question and there’s a —

Felix Frankfurter:

Would you be good enough to circumscribe exactly what you mean by whether this issue that you redefine the issue that you think is not —

J. Lee Rankin:

The issue that I think is not properly before the Court, is whether or not the arrest, under the administrative warrant was legally valid and —

William J. Brennan, Jr.:

For what purpose?

J. Lee Rankin:

For the purpose of taking him into custody and incidents in relation to that.

William J. Brennan, Jr.:

Well, to those who prove the indictment?

William J. Brennan, Jr.:

Everything that talks —

J. Lee Rankin:

Well, I don’t want to claim too much in that regard because I think he was very specific about saying that he thought the arrest was legal and they were not attacking the arrest.

There are problems as to how far that carries you in the case that I think are involved —

William J. Brennan, Jr.:

I may, but it’s on the — but I had the impression in effect, but in this context, it’s not — would have been the arrest.

J. Lee Rankin:

Well —

William J. Brennan, Jr.:

Related to everything else that the warrants, whatever use they might have — valid use for other purposes was not to be relied on to support the use of the evidence here, against him in the — under the espionage indictment.

J. Lee Rankin:

That’s the way I would construe his remarks Mr. Justice Brennan.

But I think in — involved in that position is the problem that he assumes that evidence once legally obtained or instruments of a crime, or a contraband, or — or weapons that might be used for escape, once they’re legally obtained in any kind of a legal proceeding, are not available for any kind of a prosecution.

I don’t think that’s the law and I’ll try to show the Court that its spoken on that’s a question a number of times.

But I — I think involved in the particular questions the Court has asked us as to whether these questions are properly before the Court, is the question of whether or not the — the arrest was legal.

And there are some problems that I think get in a shaded area which he could properly have before this Court and I think they’re in the questions that he had before the Court in the other argument.

But I want to call attention to how explicit they were about this arrest being legal as they viewed it, so that the — the trial court tried to find out that very thing on page 19 of the Government’s supplemental brief.

Earl Warren:

Mr. Solicitor General, before you get to that, you — you stated the issue in response to Mr. Justice Frankfurter’s question.

Now, does that include the — the right to the search that was made here on the basis of the administrative warrant?

J. Lee Rankin:

Well, Mr. Chief Justice, I think that the first you — despite what counsel says you have to comport (Inaudible).

You first have to —

Earl Warren:

Well, there’s a legal — and to the legal principle, as the legal principle in this — in this case, does the administrative warrant itself, support the search that was made here?

J. Lee Rankin:

The Government thinks it does.

Earl Warren:

That is your position?

J. Lee Rankin:

Yes, Mr. Chief Justice.

And I want —

Earl Warren:

That is part of this issue as you have — have stated it in response to Mr. Frankfurter’s question — Mr. Justice Frankfurter’s (Inaudible) —

J. Lee Rankin:

Yes, Mr. Chief Justice.

Earl Warren:

Yes.

J. Lee Rankin:

In this way that we — the Government takes the position that if the arrest is lawful, then, there are certain rights that the officers have by reason of being a lawful arrest.

And that by the decisions of this Court permits certain things and it permits a search of the person, of the person taken into custody and for any contraband, for instruments of crime, for weapons or other means of escape.

Earl Warren:

And that without regard to whether it is arrest — an arrest for a crime or for deportability under — under a warrant of this kind?

J. Lee Rankin:

Well, yes.

That’s our position.

Earl Warren:

Without regard?

J. Lee Rankin:

Yes.

And I — I think it is important in that concept — I’m not relying upon what you said as the Court prior to this time, for this last statement of, yes.

But I think it’s important to examine what the nature of arrest is in regard to whether you would find properly that the incidence of arrest that you recognized in criminal proceedings should attach.

And the — the reason that that has been permitted in the past in regard to arrests, to take into custody for criminal purposes or for several things that you’ve discussed in your opinions over the years.

And I think in this particular area, there is not much division in the Court as to — assuming this was a crime, an arrest for a crime, what were the proper things that could be done in — in regard to a search.

When you get away from the person or what’s immediately in his presence, then there is — has been a difference in the Court in some of the opinions as to how far you could go in regard to the search.

And Harris permitted it and even so far as four rooms.

But the reason that has been traditionally recognized in this Court, as long as this subject has been discussed by the Court’s opinion, has been that you can’t expect a man to be an officer — to arrest a man without giving him a certain basic authority to protect himself.

Now, so you always permit, if you’re going to let him take somebody in custody and I say this is always — this is only been applied to criminal cases up to date, but I — I’m trying to show that it applies properly to an immigration case to where you take him into custody.

Because you have the same problems of whether the man is going to try to escape and whether or not, if you find on this person and looking for anything that he might try to use in — to escape, like a physical weapon of that kind or a blunt instrument or anything else, that knife that he could use, then if you find instrumentalities of a crime, or if you find contraband on this person, it seems to me that the Court has been generally in agreement over the years that you could take those as a part.

Now, it’s the same problem that the officer has in regard to taking the man into custody for immigration purposes that it is for taking him into custody for a crime.

And that — if you don’t — you can’t accomplish anything, if a man is going to be able to keep his gun and get away right away or a knife or other instruments.

And it’s always been recognized that once that if you can do that, then if you run across instruments out of a — a crime or contraband, that the Government just doesn’t have to say, “Well; we he won’t pay any attention to those” and has been — been permitted to take them.

Earl Warren:

May I ask you just one more question and I’ll try not to interrupt you anymore, but does your argument depend at all upon the character of this search as to whether it was a — a limited search or as to whether it was a general search of the premises?

J. Lee Rankin:

Well, I think if you get in to the question of whether it’s the general search, it’s a much more difficult problem than it is if it’s a limited search under the decisions of the Court.

Although, I think Harris and Rabinowitz goes a great place in regard to permitting a — a general search.

Always, you can’t search for evidence so that’s conceited.

Earl Warren:

And what — what was this?

Do you (Voice Overlap) —

J. Lee Rankin:

This — I will — I’ll — Mr. Chief Justice, we — the Government takes the position that these — every one of these seven items that are in issue here, were instrumentalities of crime.

Earl Warren:

You think I’m talking about the search now.

All I’m interested in —

J. Lee Rankin:

Oh, I’ll —

Earl Warren:

— in the search.

Was this a general search or was this a limited search?

J. Lee Rankin:

The Government takes the position it was a limited search.

Earl Warren:

Now, you can argue that on your own time —

J. Lee Rankin:

Yes.

Earl Warren:

I just want to get the point in my — in my mind.

Felix Frankfurter:

May I — before you elaborate your argument, see if I have the — what seems to me a clear issue between Mr. Donovan and yourself.

Felix Frankfurter:

Mr. Donovan’s argument — Mr. Donovan’s position is that he’s indifferent.

He’s indifferent with the determination whether the administrative warrant of arrest was legal and he’s indifferent to that because he says “None of the subsequent — none of the things that flowed from that arrest are thereby legalized.”

And you say if I get your argument that you can’t tell whether what was done after the arrest was legal or not, until you determine whether the arrest is legal.

J. Lee Rankin:

Yes, Mr. Justice Frankfurter.

Also, if this was an illegal arrest, we would concede that you have no right to search or seize.

That all of the proceeds from first determining whether the parties or officers were legally there.

Tom C. Clark:

Well, your contention is that was admitted to himself?

J. Lee Rankin:

Yes, Mr. Justice Clark.

It was so explicitly asked, they were asked several times when we set it out on page 19 of our brief and they said they weren’t even so far as to say, we are not contesting that at all, we thought — we agree that it was their duty to arrest this man.

Now, I don’t mean to say by that but they were saying that there was a — a right to arrest and make all the search because they claimed the search was in bad faith.

That was their basic claim in this case.

That even though the arrest was legal, the Government was trying to get this evidence all the time from the beginning for the espionage case and was not in good faith in trying to get this man arrested and take whatever was properly a matter of search in connection with that purpose.

Now, that question —

Felix Frankfurter:

If the arrest — if the arrest doesn’t bear on what was done in Texas?

J. Lee Rankin:

No.

Felix Frankfurter:

But the arrest is from your point of view, bears on whatever search and seizure may have taken place at the hotel and in Mr. Latham’s — in Mr. Donovan’s view, is irrelevant to that.

J. Lee Rankin:

I think that’s a —

Felix Frankfurter:

That’s the clash —

J. Lee Rankin:

— clash Mr. Justice.

Felix Frankfurter:

All right.

J. Lee Rankin:

Now, we think that the fact that the two courts have decided this question below in regard to the good faith of the matter and we’ve tried to present that in our last argument in our briefs in great detail should be a great weight before this Court.

So, we then — I’ll followup later where this issue was properly before the Court, but we then turn to the questions that the Court asked now as to rearguing.

And bear that as we understand it, the first question is, was this warrant properly issued in the first place?

And we think that means whether or not, it was properly issued under the statute and was lawful.

Now, then whether or not it was a valid warrant for the arrest and further whether before the search and seizure.

I’d like to treat that first as to whether or not, it was lawful under the statutes.

And I think that involves first, the assumption that the Fourth Amendment does not apply, then I’ll proceed next to the fact that if the Fourth Amendment applied, we satisfied that.

And last, the effect on the search and seizure.

Now, the statute for great many years, some 75 years and then you go back to the alien and sedition laws clear back to 1798, provided for the warrant of arrest or the right to take into custody a person who was to be deported, to be a matter of executive action and has not provided at anytime throughout our history for a judicial review — or a requirement that the warrant be issued by a magistrate as distinguished from the executive officer.

Now, the statute we have set out in — as if in the appendix to our brief, prior brief, not this last supplemental brief, provides explicitly that the Attorney General shall have the authority to issue such a warrant.

J. Lee Rankin:

And then there’s authority for the Attorney General to delegate his duties and there is a provision in the regulations for how that shall be done and then there are special instructions.

And the instructions provide that deportation shall be brought in a certain manner and that it provides for a requirement that the warrant shall be issued only upon the — being developed, the prima facie case or the District Director or a deputy director to be satisfied that there was a prima facie case just by a deportation.

And then —

Hugo L. Black:

Which regulation is that?

J. Lee Rankin:

That is a — the appendix to our supplemental brief, our last brief on page 52.

And that’s the instruction —

Hugo L. Black:

That’s to show cause why he should not be deported?

J. Lee Rankin:

Yes.

Hugo L. Black:

That’s not for the arrest?

J. Lee Rankin:

No.

The arrest is covered on page 64.

Hugo L. Black:

63 and 64 of the original brief.

J. Lee Rankin:

Yes, of the original brief.

And that authorizes the taking into custody under a warrant of arrest, when it appears necessary or desired.

Hugo L. Black:

Well, what purpose did it say?

There’s some (Inaudible) there.

J. Lee Rankin:

Yes.

Hugo L. Black:

I don’t know what just comes into that.

J. Lee Rankin:

Well, I think that’s implied.

I don’t recall the language after but — but, I think it’s implied in connection with the deportations at the commencement that if you — Mr. Justice Black on page 63, I think refers back to the deportation procedures.

Hugo L. Black:

Subject to supervision?

J. Lee Rankin:

The supervision is directed because it’s left in the hands of the District Director at that level and presumed to be an act with the Attorney General.

There is no supervision of a court or a magistrate involved.

Hugo L. Black:

If it’s your argument, I’m not quite clear whether — if it’s your argument that when arrest of this kind for this purpose, the rules that courts have worked out with reference to search and seizure as an arrest for crime are equally applicable to this so called arrest for deportation purposes.

J. Lee Rankin:

Well, it’s — it’s our argument that they should be, because the same problems are involved in taking a person into custody for this purpose and the reasons that the courts have allowed such as search and seizure in criminal cases pertaining to this kind of a proceeding in like manner.

Hugo L. Black:

Well, what then would be — they have a right to search and seize here under an arrest of this kind?

J. Lee Rankin:

Well, if you relate it to criminal proceedings, what you — permit (Voice Overlap) —

Hugo L. Black:

This is not criminal.

J. Lee Rankin:

This is not criminal and the Court said it’s civil.

And the Government takes position that there should be greater latitude in the civil proceeding than in a criminal proceeding.

J. Lee Rankin:

But separate and apart from that, you — and if the Court has — the courts have recognized that when a person has to be taken into custody, there are certain searches allowed in early English times down through the years because of the problems involved in taking them into custody.

And amongst those are — are that you search this person.

Hugo L. Black:

For what?

J. Lee Rankin:

For —

Hugo L. Black:

Weapons?

J. Lee Rankin:

Weapons and instruments that might be used to escape or to destroy the officer.

You can also search him for instruments of criminality and contraband.

Hugo L. Black:

Well, that would — the criminality, but there is no criminality here.

J. Lee Rankin:

Well, these particular —

Hugo L. Black:

In this kind of a warrant.

J. Lee Rankin:

These particular evidences or these particular things that were secured by the search were directly connected with crime.

Hugo L. Black:

That’s right.

But — but that has nothing to do with the deportation, is it?

J. Lee Rankin:

Well, no.

But if — if the officers properly on the premises, lawfully there, you don’t say to him if he finds a body there or some instruments, the tools of a burglar that he can’t take those into his custody.

It’s always been.

Hugo L. Black:

Do you mean — you mean that in the old days, when they could arrest a man to death, for instance?

They did arrest him for death?

The officers would’ve had the same rights to search and seize both what he had in this possession and all around in his room and house as they would if they arrest him for — for (Inaudible)

J. Lee Rankin:

Well, I don’t know why would — I think that Davis and Zap would hold that.

I think they’re — they were locally making an examination into the records in the one case and they discovered these coupons, gasoline coupons, ration coupons and the Court held they could lawfully take those.

And in Zap, you can have the case where they have discovered a check and the majority of the Court held that was an instrument of the crime as a majority of those sitting and held that even though that was not in that particular matter, a criminal inquiry that the evidence of instrumentality of crime itself could —

Hugo L. Black:

Could they arrest him there?

J. Lee Rankin:

As I recall, they had a warrant in one of the cases, but —

Felix Frankfurter:

I — I have two separate questions if I may suggest, Mr. Solicitor, namely, how far you may search the person upon a legal arrest for the things in his possession and it’s totally different — for me, a totally different question, is what the range of what is called a search of person?

What may you take that’s physically not on this person or not visible?

J. Lee Rankin:

I think that’s —

Felix Frankfurter:

Well, that’s two very different questions.

And I think — and I think the proposition you’re tendering as I understand you is that if there’s a legal arrest, you may search the person in order to be sure that the arrested person isn’t going to do violence or have means of escape to avoid the arrest.

And if in the course of searching a person, you find for instance, a pocketful of narcotics, illegal narcotics, illegally possessed, you may take also those off.

Felix Frankfurter:

That’s your position.

J. Lee Rankin:

That’s right, Mr. Justice.

Felix Frankfurter:

But no matter what the — no matter what he’s arrested for, if the arrest is legal, then you may search this person.

But I suggest there’s a totally different question and that’s the one that was raised in Davis, in Zap, Harris, et cetera, all the rest of them namely, what the range of that implication is.

J. Lee Rankin:

Mr. Justice Frankfurter, I — I agree with that except that I — whether the Government takes Davis and Zap and Harris and Rabinowitz as the law in regard to criminal proceedings.

Felix Frankfurter:

I didn’t mean to imply that you shouldn’t.

J. Lee Rankin:

And I — I recognized that, Your Honor, as the difference in regards to those, but I was trying to take first to the question of search of the person and then the Court has in Davis and Zap and Harris and Rabinowitz recognized that that search of a person could be extended to what was reasonably within his control.

And Harris has gone so far as to recognize in the four rooms that he — he had that — those were under (Voice Overlap) —

Could I ask you an interstitial question before you go on.

J. Lee Rankin:

Yes, Mr. Justice.

Was there an immigration offense — offense under the immigration law as distinguished from the events of espionage that was involved here?

J. Lee Rankin:

The — yes.

The — the same acts of not reporting the address of the petitioner to the Attorney General was an offense under the immigration law.

What was the offense?

J. Lee Rankin:

It was a misdemeanor.

What — what was the offense?

J. Lee Rankin:

It was a failure to report his address was —

Failure to register.

J. Lee Rankin:

That’s right.

And that identical act without more was — so that the very same thing that was a deportation offense and for which he was arrested was also a misdemeanor (Voice Overlap) —

And do you — do you argue that some of the things that were seized here were instrumentalities of that immigration offense?

J. Lee Rankin:

Yes.

We — this position of the Government of the four items in regard to alien issue that is the — the fictitious birth certificate about Martin Collins, this spurious birth certificate about Goldfus, the savings bankbook in the name of Goldfus and the vaccination certificate that’s the four items were all involved in his trying to preserve or establish that he was lawfully within the United States when he wasn’t.

To that extent, you don’t have to go beyond whatever rights if it’s the man in search, if he or if there are any, we don’t have to go beyond the case of those under the immigration laws.

J. Lee Rankin:

That’s right.

Now, beyond that, the other three items, two of them were taken out of the wastebasket and thrown away by the petitioner before the search ever occurred.

And the other one, he was slipping up his arm at the time and they caught him all he was doing.

And that seems to us that those are clear items, the two that he abandoned the wastebasket were certainly items that the — the officers could search for and if they got a permission from the only man that could have any control of it, which was the hotel owner or the hotel manager.

So those two items were — and they were evidence and there was more than evidence.

They were instrumentalities for carrying on the crime of espionage.

J. Lee Rankin:

One of them was a sandpaper block that was so made that it could be cut — it could be opened up, it was cut apart and it conceals some microfilm that revealed the time of radio broadcast that could be received in regard to espionage and the Defense Department checked that and found that there were communications of the exact type that was — were contained in one of these receptacles that was a code, special code in red and black letters of five inches.

Hugo L. Black:

You mean those are sufficient to give the officers reason to believe he was guilty of espionage?

J. Lee Rankin:

No.

The evidence beyond that was overwhelming that they had without these items.

And if they had raised the question in the manner that — of objecting to the arrest and saying that these items were not admissible for that reason and the Court — and the Court could then in the — in the lower court could either have decided that this kind of an arrest was subject to the Fourth Amendment if it had and if it was — had come to the conclusion that we have not — the right to search and seize these items because of that.

They could have eliminated — eliminated them and we would’ve had overwhelming proof against this petitioner of his espionage activities.

Hugo L. Black:

What about 1357 (Inaudible) to get a warrant?

J. Lee Rankin:

If —

Hugo L. Black:

1357?

J. Lee Rankin:

If he was — that —

Hugo L. Black:

(Voice Overlap) —

J. Lee Rankin:

— that’s in regard to the crime.

Well, that is something that was not done.

But, it’s the position of the Government that you don’t go back of the point of the search and seizure, but whatever — whatever wrong occurred was at that point and the action with that question would be — it would have to be raised and would not affect the validity of the search and seizure or the arrest prior to that time.

Hugo L. Black:

(Inaudible)

J. Lee Rankin:

No.

It would have to be squarely raised in regard to that.

Now, he — he could’ve made a motion and say — said that he had not been taken before a magistrate.

I think the Mitchell case would have some bearing on that because even though — if you recall this — the defendant or petitioner in — in Mitchell was kept — a period of time as recognized is unlawful, after his confession.

Nevertheless, the Court held the confession having occurred properly even though they kept him — they didn’t take him to an officer for a long time later, the confession was admissible.

And I don’t think that — I think you’d have to — compartment this case in order to examine the various steps and you don’t go back of where the error occurred to condemn the evidence.

Earl Warren:

Mr. General, just to get back to the search again.

Suppose this man’s home instead of being just one room and one small room and a bachelor has been a 10-room house, would this warrant have supported searching through his entire home has — that was done with this man’s entire home?

J. Lee Rankin:

Well, I — Mr. Chief Justice, I don’t think that this Court has ever spoken beyond four rooms so far —

Earl Warren:

Well —

J. Lee Rankin:

— and —

Earl Warren:

— well, let’s take it forward (Inaudible) I — I didn’t pick that in my (Inaudible)

J. Lee Rankin:

In — in Harris, the Court found that there was sufficient control to permit the — a search and seizure over the whole four rooms.

Earl Warren:

Yes.

Well, I’m speaking of the administrative warrant to (Inaudible)

J. Lee Rankin:

Well, if you’re going to apply the Fourth Amendment, if — I would seem that you have — you want to apply it so that it permits the same latitude because certainly, this deportation case is no worst than a criminal case if you’re going to apply it.

You — it would be as extreme a rule as the Court has to require that they have — they’d be there lawfully in order to make the search.

And once they are, they can exercise the search and seizure within the area that the — that is within — that is under the control of the petitioner.

Now, under that kind of an assumption, I think it’s very proper that with the administrative warrant, you wouldn’t apply any — any worst rule than you would if it was a criminal action.

Felix Frankfurter:

May I — may I arrive at Mr. Chief Justice’s question?

J. Lee Rankin:

Yes, Mr. Justice.

Felix Frankfurter:

That’s before you sit down, can you speak and answer, could you, suppose Harris have been decided contrary wise, suppose it would — that’s in — that’s in a reversal there instead of an affirmance (Inaudible) would that —

J. Lee Rankin:

Control this case?

Felix Frankfurter:

Would that make it different at least, not — would that make a difference?

Or what would be the — let me put it this way, what will be the bearing on the Government condition that Harris had been reversed instead of what’s now?

Well, you couldn’t answer.

Those are now —

J. Lee Rankin:

Yes.

Felix Frankfurter:

— you wouldn’t, of course, in your own arranged doctrine.

J. Lee Rankin:

No.

I’d — I’d like to try to answer that.

Felix Frankfurter:

All right.

J. Lee Rankin:

First — first, Mr. Justice, if the position in Harris was the minority position and I don’t think that would control this case.

In the first place, we didn’t search any four rooms.

We searched those that — the only room that was right there under his control and I think the difference between the control is very real, where he had a small hotel room like this as the evidence shows and four rooms of the house that include a kitchen, a bathroom, as well as a living room and a bedroom.

But beyond that, I don’t think that we have a comparable situation, because what the only items in issue here were the — these alienage, four items that I referred to and the three items, two of which were in the wastebasket and the one is slipping up his sleeve.

Now, that the Government, we think that the wastebasket that was abandoned was clearly outside of any — of the — the most extreme position.

In the Harris, the other way, would not affect in any way our right to take that.

Then when we take what was up his sleeve, we say that’s a special case.

And all the cases, if you’re going to let us search at all of his person would permit an instrument of — of criminality if you’ve taken out of his sleeve.

Then, when you get to the items of alienage, it isn’t clear just what part of his things those were taken from.

We think that burden was on the petitioner to show exactly where they were taken in order to be able to say, “He couldn’t do this or that.”

But beyond that, we say that the — this man was asked, “Are you going to keep your things here, in this hotel room, or you — you want to go?”

He says, “I want to take my things.”

If you’re going to go and I told him where, they were going to take him and arrest, “I want to take my things with me.”

J. Lee Rankin:

Now, they — they then — and he said he wanted to leave a few things.

He wouldn’t take them.

He was going to throw them away.

Then they proceeded to help him pack.

Now, it seems to me that its — under all of those rules regardless of the dissent in Harris and Rabinowitz in other cases that its unreasonable to ask these officers to — if they were going to help him to not — when they put — picked up a piece of apparel or some other thing and help him put in the suitcase, it was wrapped around a gun and say, “Oh, we forget about that.

Maybe he can’t get to the suitcase as fast as we can and we don’t have to — we can’t touch that and the other things.”

So, it seems to me, its quite different when you pick up these things to move it and by the very nature, they have to be picked up pretty much his items and put in the suitcase to see whether there’s any instruments of criminality or contraband in connection with him, than if you’re going around and pulling suit files or if he wasn’t going to move from there, if they’ve gone through all the covers and search his things and handled in that matter.

Now, that’s what —

Felix Frankfurter:

If I understand you to answer Justice Harlan a little earlier that all the four items, the other four items, were — were tied to or related to or relevant to his deportability?

J. Lee Rankin:

Yes, Mr. Justice.

Now —

Felix Frankfurter:

(Voice Overlap) —

J. Lee Rankin:

I’ll repeat what those were.One was a fictitious birth certificate in the name of Martin Collins and that was the evidence otherwise shows very clearly that the Government knew long before this and these immigration officers knew that that was one of the aliases he used.

Another was a spurious birth certificate.

One of them, there was the Martin Collins, there was someone in existence and I think that was when it’s forged.

The Goldfus one was the — for a child that had died and the parents by very curious situation had named the second child by exactly the same name, which he didn’t know but he developed this spurious in the name of Goldfus which was another one of his aliases.

And then he had a fraudulent vaccination certificate that he would need in connection with maintaining his position in the country.

That was in the name of Goldfus as I recall.

And the fourth one was a savings bank of the East River Savings Bank, a bank deposit book that was in the name of Goldfus.

Earl Warren:

We’ll recess now.