Andresen v. Maryland – Oral Argument – February 25, 1976

Media for Andresen v. Maryland

Audio Transcription for Opinion Announcement – June 29, 1976 in Andresen v. Maryland

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Warren E. Burger:

We will hear arguments next in 1646, Andresen against Maryland.

Mr. Andresen, you may proceed whenever you are ready.

Peter C. Andresen:

Good morning Mr. Chief Justice and may it please the Court.

Initially, Your Honors, I would like to set the scene, involved in the search and its fruits which are complained of in this petition.

There existed between petitioner and a local bank, a dispute as to application of payments, which were forwarded, to the bank to extinguish a particular lien, which encompass several properties in a subdivision in Montgomery County.

It was the basis of this dispute that provided the hearsay evidence and information upon which the affidavits of the police officers were based which was used to obtain the search warrant to search the petitioner’s offices.

The dispute arose because the indebted party for whose benefit the payments were being forwarded to the bank was the credit — was the debtor on two separate debts, one of which was a lien debt, the other which was a personal debt.

And although the checks in their accompanying letters and releases which were mailed to the bank in each instance were forwarded by messenger, stipulated that the money was to be applied to a particular debt.

The bank instead was applying the money to the personal rather than the secured debt and this came to light later in a civil case involving the same subject matter, in which it was held that the bank was erroneously doing so and in fact the lien complained of had been extinguished some months prior to the acts complained of which lead to the search.

However, this was a scene upon which the information was related to the investigators who swore to the affidavit contained in the warrant upon which the Circuit Court Judge issued and found probable cause and issued the search warrant.

Now the warrants, there were two in number, called for the search of petitioner’s law offices and also another office which was occupied jointly by petitioner for storage of his files and with some corporate offices of which the involvement is not completely clear, but the petitioner did have some involvement.

There were two separate warrants based upon the same affidavits.

The majority of the affidavits were the same.

I think one of the affidavits had some additional information and that was the search of the corporate offices, it had some additional information to establish that petitioner’s legal files were maintained in storage and that some of his employees did work in part of that office.

Now, the law office itself, picture if you will, a reception room with a secretary and other chairs and one desk, a large office type room which was entered into, through the reception room, contained several file cabinets along one wall, completely in line with one wall, other file cabinets, approximately five to seven desks with their contents.

Piles of papers on each of this desk, a conference room and two lawyer’s offices of which there were book cases containing papers, credenzas with papers, a desk, completely average legal office.

Papers from everywhere and contained in every desk drawer.

The auxiliary office was containing even more files and title files, was occupied in part by petitioner and his law clerk and used for reference to these files when preparing title abstracts information because petitioner was a Title Attorney and heavily engaged in not only real property practice, but handling transfers of real estate in Montgomery County.

Petitioner had handled at the time of the search, according to his files, over 5,000 property cases since he conceived this practice, all of which files are maintained in these two locations.

Now, some of the files are very voluminous, some of the transfers were dependent on prior transfers, and therefore, the files were not so voluminous.

But the files comprised so much space that even though petitioner’s office was a 1,200 to 1,400 foot category and in a neighborhood of five to seven employees beside himself in it, that he had to have additional space in order to store the balance of the records.

That is the scene upon which the officers entered with the warrant.

The affidavit contained in the warrants, contains mostly interviews with individuals and the results of these interviews.

And in part two of the petition, petitioner complains that because there were no direct observation or personal knowledge as to the things sought in the affidavits that it was necessary for the affidavits to spell out reasons why the hearsay evidence was reliable.

We maintain that there was no such information contained in the affidavit.

That the information was sought and obtained from individuals who were involved with the petitioner in the dispute which I earlier recited to the Court.

As a matter of fact, one of the investigators at page 36 of the brief says that he knew at the time of the affidavit that the bank officer had told him that he had received the payments complained of, but in fact applied them to another debt.

Warren E. Burger:

Are you referring page 36 of your brief?

Peter C. Andresen:

Yes sir, Your Honor.

Potter Stewart:

Mr. Andresen, where is the affidavit reproduced in these papers?

Potter Stewart:

In one of these (Voice Overlap)

Peter C. Andresen:

That would be in the appendix, yes sir.

Potter Stewart:

Appendix to the petition?

Peter C. Andresen:

The second, right, the second appendix which should be —

Potter Stewart:

The appendix to the — the petition of for certiorari or to the —

Peter C. Andresen:

Yes sir.

No, to the brief on the merits.

The beginning of the — the application in affidavit begins at page 897 which is the — on the first pages of a —

Potter Stewart:

Page 897?

Peter C. Andresen:

Alright sir.

Potter Stewart:

I have it.

Thank you.

Peter C. Andresen:

A very lengthy application going on for several pages, but the important thing that I intend to point out at this part of the argument is that the information was not fully set out to the issuing Judge as he was only presented with the disputed information on the side of the dispute that the officers choice to side and that this information was unreliable.

Warren E. Burger:

Are you suggesting that an application for a warrant must contain a balanced presentation of the facts?

Peter C. Andresen:

I think you must present all the facts Your Honor, instead of withholding facts which are pertinent to the issues such as these officers did as they admitted under cross examination.

Warren E. Burger:

I was not directing it to withholding facts, but it is your view that it must present both sides of the question?

Peter C. Andresen:

If it is important to the issue, yes sir.

Again, the Court of Special Appeals felt that it was not necessary to provide information as to why the sources were reliable because they were thought to be dissenters to the citizens.

However, as I stated it could hardly be considered dissenters to the citizens when they were deeply involved in the complained off problem and that the ops — that the allegations were later proven to be false or erroneous.

Next, I would like to turn to the warrant itself, which appears at page, beginning at page 894.

On page 895, it is set forth, the descriptive phrase of the things sought to be seized.

And if I may, it begins towards the end of the first paragraph, saying the following items pertaining to a particular piece of property and then the warrant sets forth virtually every type, that is general category of paper or document in existence in anyone’s files or papers that could possibly relate to any particular source.

Memoranda, settlement statements memoranda, correspondence, disbursement memoranda, etcetera, etcetera, etcetera, and all books, records, documents, paper memoranda, and correspondence showing or tending to show a fraudulent intent and/or knowledge as to elements of a certain crime or false pretenses and then the final sentence is together with other fruits, instrumentalities and evidence of a crime at this time unknown.

Potter Stewart:

The word time is supposed to be in there.

It is not in my copy on page 896.

Mine just says, that this unknown.

Peter C. Andresen:

Yes sir, the word time should appear, that is a typographical error.

As maintained by petitioner that the general language as to the types of papers sought was as general as the one struck down by this Court in Stanford versus Texas.

In Stanford, Mr. Justice Stewart speaking for the Court used the terms when referring to books and papers were that contained ideas or thoughts expressed that they must be described with, “the most scrupulous exactitude” and we maintain that the description as set out was very similar to that used in Stanford.

William H. Rehnquist:

In Stanford, you had some First Amendment implications, did you not, whether or not a bookstore search?

Peter C. Andresen:

Yes sir, Your Honor.

There were several books seized in that particular search.

In the language and also the language used in the warrant set out in the VonderAhe versus Howland case which is set out in the brief by a warrant struck down as being general.

When referring to papers, it is not sufficient to just describe every kind of paper.

Let us say letters, books, memoranda, it is not particular nature to the items sought to be seized and then especially when you add the language of other evidence of crime at this time unknown, which means that the officers were empowered by this warrant to use their judgment, make legal conclusions, arrive at decisions as to what should be seized and what should not be seized.

Now, especially when they even had the authority to seize evidence of crimes that they did not even know about at the time that they entered the premises and one must also look at the extent of the search.

In Stanford, the search comprised approximately five hours.

In the instant case, there were two offices being searched simultaneously and comprised approximately five to six hours.

Potter Stewart:

Who two — different lawyers offices or two offices in this suite of offices?

Peter C. Andresen:

No sir.

One whole suite of offices plus at another location, there was a small office that was contained in overflow of files were —

Potter Stewart:

Also belonging to this petitioner?

Peter C. Andresen:

Right sir.

Potter Stewart:

In the community?

Peter C. Andresen:

Just a couple of blocks away.

Potter Stewart:

Blocks away, thank you.

Peter C. Andresen:

In Stanford, the officers carried away approximately 2,000 books and pamphlets.

In petitioner’s case, the papers were never counted.

Nobody ever in the record expressed, how many papers were seized.

We come upon a lot of different expressions as to description of the amount of paper seized.

That is because petitioner feels there were many more than could be readily counted.

At one point, the prosecuting attorney stated at page 372 of the transcript of motions that the papers comprised three file cabinet drawers full that were seized.

In other words, the officers did not carry away boxes, the type of cartons you get in a grocery market, with them carried away papers and when they got back to the office with them, they filled up three file cabinet drawers.

I measured one of the file cabinet drawers, it is 28 inches deep, and I also measured the stack of papers and I found 240 pages in each inch of paper.

So the 28 inches of file cabinet drawer would handle between six and seven thousand papers.

In three drawers then it would be an excess of 20,000 papers which were carried away and most of these papers were enclosed in large files which were enumerated as to what the file contained.

Therefore, we contend under that part of our argument, the warrant for general allowed the searchers to do too much, and therefore, should have been struck down.

That is under our part 2B of the argument.

I am quoting from Coolidge v. New Hampshire in the brief, stated by this Court that distinct objective is that the search is deemed necessary, it should be as limited as possible.

That is the purpose of the particularity of description which is required.

Peter C. Andresen:

And the day following the search of the premises, petitioner was arrested in front of his office and charged with four counts of false pretenses which were basically as to subject matter contained in the affidavit for the warrant.

He was incarcerated, then released on bond approximately two weeks later.

After a thorough study of all the papers seized, he was indicted by the grand jury in Montgomery County on approximately fifty other counts all of which were subject wise extracted from the seized papers.

At the time of the hearing on the motion to suppress the evidence seized, as pointed out in part 2A of the argument, even though the warrants were discussed in great detail and passed around and a matter of fact the hearing held comprised approximately a day-and-a half of argument and testimony, they were never — the warrants were never actually formally introduced and as pointed out in 1A, although a technicality, we feel that the non-introduction of the warrants a technicality under our laws of evidence that cannot be dispensed with or at least some reason be shown why they were not introduced.

Potter Stewart:

That — that is the rule of Maryland Law is it that whenever anything that has been seized under a warrant is introduced in evidence, the warrant itself also has to be introduced with evidence?

Peter C. Andresen:

Yes sir or an explanation to be made as to why the warrant is not available.

Potter Stewart:

And that is true even if there is no objection to the introduction of it?

Peter C. Andresen:

Yes sir, Your Honor and I believe, in Bumper this Court referred to a very similar case in North Carolina where —

William H. Rehnquist:

What is the reason do you know for that requirement of Maryland Law is that the jury would not pass on the sufficiency of the warrant?

Peter C. Andresen:

It is just I believe is basic, is back to basic best evidence rule that if you intend to prove that a certain document exists and that it was used in the auspice of it were heart of the proceeding that that it is necessary to introduce that article into evidence or explain why it cannot be produced.

William H. Rehnquist:

Does the State quarrel with the language of the warrant that you have set out in your own appendix?

I mean, is there a dispute about it?

Peter C. Andresen:

State does not quarrel with the theory of law there just to expounded to you, Your Honor.

They just feel that the non-introduction was overcome by certain things which are set out in the Court of Special Appeals opinion.

Now, following that, the suppression hearing, the Trial Court required the state to establish a nexus under Warden v. Hayden, that is a connection between the articles, the individual papers seized and the crimes or the intent or the mens rea behind the crimes.

Now, at this point, the state went back into a huddle, stayed overnight and completely went through the papers, disregarded approximately 75% of them as pertaining to other indictments which they were not pressing at that time.

Of the balance, because of the necessity of opening the file and looking at each paper rather than establishing the connection of the complete file and why the officers seized it, went through the papers and eliminated the majority of what was left.

So that when they got through, they had only a handful which could easily be held in one hand.

Again, I do not know the count, but only a handful of papers upon which the Trial Court did not suppress.

At this point it is important to point out the argument in part 2B which refers to the motives, excuse me 2D, and I will refer it to 2D, the motives of the prosecutor as espoused by Warden v. Hayden, at page 34 of petitioner’s brief, the language in Warden v. Hayden, referring to mere evidence states, and I so quote, “that probable cause must be examined in terms of cause to believe that the evidence sought would aid in a particular apprehension or conviction.

In so doing consideration of police purposes will be required.”

At this point, I think it is evident from the facts as to what the prosecutor’s motives were at this particular point.

They used the facts as espoused in the search warrant to obtain a warrant, search the premises, waited two weeks of sifting through the material seized, not even knowing, as is obvious from the testimony of the investigators involved, what the papers were, then using these as a basis, obtained 50 additional indictments based on the information in the paper seized.

Then consolidated the original Bill of Information with one of the indictments which contained about 17 counts for a trial at the same time.

And then at time of the trial, even though he failed to establish a prima-facie case throughout the entire case and the judge, trial judge refused to allow admission at that time, was able to admit this evidence under the proving allegations and the testimony which applied to the additional indictments which in fact were obtained under the search.

The indictments could not have been attained, had the search not been performed and the extent of the search has been so general that they could seize all the papers involved, with all these other indictments.

We, therefore, say that under Warden v. Hayden, an examination of the prosecutor’s motives should have caused the non-introduction of this evidence.

Byron R. White:

I think the basic defect that you claimed was not cured by the extent to which the Trial Court suppressed evidence?

Peter C. Andresen:

No sir.

I do not think the evidence even though not suppressed could have ever been introduced had it not —

Byron R. White:

Handful of papers that were left over —

Peter C. Andresen:

That is right sir.

Byron R. White:

— that was left over that you talked about, you say was tainted evidence?

Peter C. Andresen:

Yes sir.

Byron R. White:

Because?

Peter C. Andresen:

Because — I am not referring to each and —

Byron R. White:

Because it should have been obtained by (Voice Overlap)

Peter C. Andresen:

It had been obtained under the search and —

Byron R. White:

— under a general warrant?

Peter C. Andresen:

— and used to — not only a general warrant which is part of the argument, but the papers were used to obtain indictments.

They had nothing to do with the subject matter of the search, but they were obtained because of mens rea and it was that the prosecutor maintains that these papers showed a criminal intent prior to the time that these acts were permitted, and therefore, even though they were from years past that the criminal intent maintained, was maintained by petitioner at the time he committed the acts which was the subject to the warrant.

Then while obtaining the information because it had to do with the mens rea, he then went and obtained 50 additional indictments for the crimes which he said were part of the criminal scheme.

And then at the time of trial, I know it is difficult to follow this, at the time of the trial, when he is attempting to prove the initial counts of the causation of the probable cause to search the premises, he could never get this information introduced because the trial judge never felt that a prima-facie case was established under the evidentiary rule so that the only way you could get them into evidence was through the major part of this case referring to those particular indictments and my argument is that his motives are so obvious to low the jury with evidence of papers of various and a multitudes of crimes and numbers of counts in order to obtain a conviction.

Byron R. White:

Yes, but the trial was on the original counts, was not it?

Peter C. Andresen:

Plus a consolidated indictment which contained 17 of the later obtained counts, in other words, it was at 21 counts.

Byron R. White:

But do you think that indictment can — that was consolidated with, contained 17 counts?

Peter C. Andresen:

Yes sir.

Byron R. White:

Now you — were any of those counts obtained, do you claim based on the evidence that was seized?

Peter C. Andresen:

All of them, all 17 in additional counts.

Byron R. White:

Or was a — how about the evidence, that handful of papers?

Peter C. Andresen:

There still would have been healthy handful hands.

Byron R. White:

Alright healthy handful of papers, but to which counts did the Trial Court say they were relevant?

Peter C. Andresen:

They said they were relevant to the criminal scheme of intent.

Byron R. White:

So that would have been true whether the case was, whether there had been a consolidation with another indictment or not.

Peter C. Andresen:

They never would have been able to have been introduced.

Byron R. White:

Why not?

Peter C. Andresen:

They are not because the trial —

Byron R. White:

So, they just tried on the original four?

Peter C. Andresen:

The prosecutor attempted over and over to have them introduced, but under an evidentiary rule in Maryland, McKean v. State, you cannot introduce evidence of other crimes or criminal intent until you have first established a prima-facie case on the major part of your case.

And the Trial Judge ruled over and over that this prima-facie case had never been established and only when the prosecutor turned to the proofs of the additional indictments was he able to get the evidence in.

Peter C. Andresen:

And that is the what — the maintenance of — Turning then to the last part of the second section — second question and it is at 2C which had to do with the nature of the crime which is that it was complained off which is a completed act and even that the issuing judge found that it was being committed at the time and we complained that it could not have been committed because under the facts if there was such a crime that had been complete months before and that the information used was stale as well and turning to the time of the suppression hearing the —

Warren E. Burger:

(Inaudible)

Peter C. Andresen:

It was objected at the time of the suppression hearing that under the Hill v. Philpott case that petitioner’s privileges under the Fifth Amendment applied to his business and personal papers which were seized, and therefore, has set forth in argument Section 1, the papers, even if the warrant were held to be reasonable, could not be introduced over petitioner’s objection because they will violate his Fifth Amendment rights against self incrimination.

Now, at the time that these articles were in fact introduced at the trial, petitioner continued to object and he is finally reminded by the Trial Court that it was not necessary to continue to object if the record would show that the objection was sustaining against all the article seized.

Potter Stewart:

What was the compulsion involved in this evidence with respect to your argument about the Fifth Amendment?

Peter C. Andresen:

Well, this comes down to the distinction between the cases as to how you define compulsion.

Now, Black says —

Potter Stewart:

You concede of course that there must be some — that the defendant must be compelled to incriminate himself?

Peter C. Andresen:

Definitely.

Potter Stewart:

Now what we want was — what was the compulsion exerted in this case?

Peter C. Andresen:

Well, the compulsion was the taking of the papers from him.

Now —

Potter Stewart:

Well, somebody else did that.

The defendant was not compelled to do anything?

Peter C. Andresen:

That is the ruling of the O’Brien case that the one, if the searchers do all the work, then the defendant does not have to hand over the papers, that he is not compelled to do anything and that is — we say that is wrong.

Yes sir.

Potter Stewart:

Well, what cases have you got for that, that indicates it is wrong?

Peter C. Andresen:

We got —

Potter Stewart:

That of course of the Hills case.

Peter C. Andresen:

Yes sir.

Potter Stewart:

What else?

Do you have any cases in this Court?

Peter C. Andresen:

Well, there are no cases at least upon my examination of all the cases.

Potter Stewart:

Well, tell me what compulsion there is then?

Peter C. Andresen:

I would — we feel that the —

Potter Stewart:

They were not writing on a clean slate, tell me what compulsion was the — what was the defendant compelled to do himself?

Peter C. Andresen:

That is a question as to what would the framers of the constitution meant when they said that he shall not be compelled to give evidence which will tend to incriminate him.

Potter Stewart:

Well, that kind of an argument with me would go for any kind of evidence, would it not?

You could never —

Peter C. Andresen:

Well, it is obvious if somebody is tortured and compelled to testify that this less obvious —

Potter Stewart:

Let us assume — let us assume the searches in this case had not only seized papers, but it seized, let us just assume that a gun was relevant to the case, just assume that, they seized papers and a gun.

Now, would you say that the defendant was compelled to — in contrary to the Fifth Amendment to incriminate himself by not only the papers, but by the gun?

Peter C. Andresen:

No not the gun because —

Potter Stewart:

You would be compelled to furnish it, would you not?

Peter C. Andresen:

However, he is not testifying by the gun in my impression.

Potter Stewart:

How is he testifying with the papers?

Peter C. Andresen:

We feel that Boyd and other cases, Bellis and other cases, Couch have set forth that one’s personal papers are protected and taking evidence form one’s papers is the same as from his own mail.

Warren E. Burger:

What if instead of a gun, Mr. Andresen, the things taken were papers, namely, obviously and admittedly forged promissory notes and mortgage papers.

Let us assume that they were later established to be forged papers, forged by the person from whom they were seized.

Now, they are papers as distinguished from guns, would you say that there is a compulsion that that is compelled testimony?

Peter C. Andresen:

Well, I have to contend that mainly that we need examination of papers first to decide whether or not it is compelled testimony.

If their thoughts and ideas expressed in the opinion of the Trial Court or the Appellate Court whoever —

Warren E. Burger:

Let us change (Voice Overlap), he forged promissory notes or mortgages, counterfeit money?

Peter C. Andresen:

On counterfeit money, I do not think it is a —

Warren E. Burger:

(Voice Overlap) money.

Peter C. Andresen:

Could be a thought, I mean I think that that is more of an object such as a gun or something in that nature.

I think that —

Warren E. Burger:

Is Promissory note an object?

Peter C. Andresen:

But it —

Warren E. Burger:

It was written in the hand, forged by the hand of the person from whom it was seized?

Peter C. Andresen:

Well, the question is, if it contains his thoughts and ideas.

Warren E. Burger:

Maybe.

Peter C. Andresen:

If we look at the paper, and all I am asking is that the Trial Court look at the paper, when the objection is interposed you say that this paper is not a private thought, it is not communicative with testimonial nature, and therefore, your Fifth Amendment privilege is not protected.

Potter Stewart:

You are suggesting, I suppose, that if what was seized was a diary written in the handwriting of the petitioner which was self incriminating that that would constitute — the introduction of that would constitute a violation of the Fifth and Fourteenth Amendments and at least it was incumbent upon the trial judge to look and see if these material was (Voice Overlap)

Peter C. Andresen:

That is our only request that they look at it, instead of what the Trial Court did and the Appellate Court did and say, we do not care what the paper was, the search was reasonable, and therefore, there is no compulsion attached.

They can take anything they please, be it diary, be it personal, be it business, no matter what it is because the search was reasonable.

Warren E. Burger:

(Inaudible) concerned about what it is until it is offered and received in evidence?

Peter C. Andresen:

No sir.

But the — this times it was offered and received in evidence, the objection was interposed continuously again and again that the paper —

William H. Rehnquist:

What standard does the Trial Court apply when it looks at it, if it were to require to do that the way you suggest?

Peter C. Andresen:

Well, it must be a factual standard and that would have to be set out by cases dealing with the papers.

Now, obviously —

William H. Rehnquist:

What would you focus on?

I mean, your response to Justice White’s question indicated that you did not certainly contend there was any physical compulsion here.

What should the Trial Court look at?

Peter C. Andresen:

I think this is much — I know and I did not mean to say that.

I do not think there is much physical compulsion attached in a force seizure of one’s papers from his premises, being under warrant or not, that there is and be forced to testify.

William H. Rehnquist:

Well, but the compulsion is not on the defendant?

Peter C. Andresen:

He is not performing, but my explanation of compulsion is there is the force and that is what Black and Valentine say it is.

That is the force which makes you move or the force which makes you do which maybe unavoidable.

Byron R. White:

This — this warrant, this seizure did no make you — make the defendant do anything.

Potter Stewart:

Made you stand aside (Voice Overlap)

Peter C. Andresen:

And made me stand aside and let them search and I objected over and over again to the search.

Byron R. White:

(Voice Overlap) have been there, would there have been compulsion?

Peter C. Andresen:

There is still would have been a breaking on my doors and taking of my files and that is the force compelling me to give up the papers.

Excuse me sir.

Lewis F. Powell, Jr.:

Mr. Justice White, idea for –

Peter C. Andresen:

Thank you.[Laughter]

Lewis F. Powell, Jr.:

I was going to ask Mr. Anderson, however, if petitioner’s telephone had been tapped pursuant to a warrant by order of Court.

Peter C. Andresen:

I do not know it.

Lewis F. Powell, Jr.:

You would feel the compulsion were equal or less or nonexistent?

Peter C. Andresen:

Well, that is a question that has been forwarded by the Federal Government.

As to tapping of phones, and I really, I think that is why the rules as to authorizing such search warrants are getting stricter and stricter.

That the question is as to conversations between peoples and I do not know the answer to that and I was able in my own mind due to shortness of time I had to answer the Federal brief which I just received, feel that because I was talking about papers I did not really fully research it.

I cannot really answer that.

Again —

Warren E. Burger:

Reserve any time for rebuttal, you are now into your last five minutes.

Peter C. Andresen:

Alright sir.

I will reserve this five minutes.

Thank you sir.

Warren E. Burger:

Mr. Oster.

Jon F. Oster:

Mr. Chief Justice and may it please the Court.

Before I get into the statement of the case and the facts because the facts are so important in this type of case, I would like to refer to the Solicitor General’s appendix which gives you an example of the type of exhibits which were seized from Mr. Andresen’s office.

And if you will — if the Court has that and if you will look at page 7, it is very faint, but if you will find it, you will find a settlement statement for buyer, property, Lot 7, Block T, Section 10, Potomac Woods, it is dated July 9, 1970.

It is Clark King Construction Co., Inc.–

Potter Stewart:

What color is that thing you are —

Jon F. Oster:

It is the yellow.

Potter Stewart:

At what page?

Jon F. Oster:

It is page 7, Mr. Justice Stewart.

(Inaudible)

Jon F. Oster:

It is very faint.

Now, that you are turned to this small print and if you will also turn to page 12 and hold page 12, you will see also a settlement statement there for seller and if you will look closely you will see that both pertain to Lot 7, Block T, Section 10, Potomac Woods.

The seller and the purchaser are the same, the date is the same and the case number is the same, Case #70-307.

Now, if you will look at the columns, you will notice in the debit column on the first one on page 7, it is 48,000 and then you will notice on the credit on page 12 it is 48,000.

But after that there is a great variance.

You will note for instance that the buyer’s copy makes no reference to the payment of any prior liens or mortgages.

And you will note in fact, that the buyer’s copy shows that the first mortgage is $38,000.00 whereas if you look on page 12, you will note that the seller received notice that the first mortgage was $35,000.00.

He also received notice that the trust to the State National Bank in the amount of $1,000.00 was paid off.

The State to the Lumsden Trust in the amount of $1,333.00 had been paid off.

The fourth trust, Foday (ph), $2,000.00 have been paid off.

Federal Line Trust had been paid off.

As a matter of fact if you look at the totals for the two settlement sheets, you will see that the first settlement sheet on page 7 is $50,487.61 and you will see that the total for page 12 is $50,746.06.

Now, those same exhibits in the petitioner’s handwriting are also on pages 65 and 66 of the Solicitor General’s appendix, and the the handwriting and you will see that there is a different settlement statement for the buyer, it is identical to the one on page 7 and it — and day — on page 66 you will see the handwriting for the seller’s settlement statement and again the seller statement does not correspond with the buyer’s.

Potter Stewart:

Difference of about three, less than $300.00?

Jon F. Oster:

That is right, Your Honor.

But the information I think more significantly was that the seller was being made aware that certain liens, prior liens were being paid off.

The buyer had no notice whatsoever.

But the information of course received by the buyer was that all liens had to be paid off.

As a matter of fact under the terms of the first mortgage from the Equitable Life Insurance Company, they would never provide a first mortgage unless they were sure that all prior liens had been paid off.

Harry A. Blackmun:

May I ask to what issue in the case is this all relevant?

Jon F. Oster:

This eventually has to do with the nature of the records that were seized.

If we get into the question as to whether or not were these testimonial or communicative or whether these were business records.

I wanted the Court to be aware of the nature of the records.

I thought it was good to have the records in your context before I presented the case.

Warren E. Burger:

You say these are traditional business records?

Jon F. Oster:

Yes, Your Honor and I think these are representative of the records which were seized in this particular case.

Warren E. Burger:

This is in the regular course of business?

Jon F. Oster:

Yes, Your Honor.

Now, if I may proceed, I only have about five minutes, I will try and get into the basic statement of the case and then after lunch I will return to the facts which setup the probable cause for the application for the search warrant.

The petitioner, Mr. Andresen is an attorney at law in Montgomery County specializing in real estate.

He was suspended from active practice by the Court of Appeals of Maryland on June 9, 1975.

On November 1, 1972 an information was filed against him, charging him with four counts of false pretenses.

On November 16, 1972, he was indicted by the Montgomery County Grand Jury on 17 additional charges.

The indictment and the information were consolidated for trial.

The petitioner’s case was removed upon his motion to Frederick County for trial.

There had been a lot of publicity in the newspapers in the Washington Metropolitan area.

He elected a jury trial which was presided over by Judge Samuel W. Barrack of the Circuit Court for Frederick County and this trial lasted over one week.

It began on May 21, 1973. Before the trial however, on April 11 and April 12 in 1973, a two-day hearing was conducted on the petitioner’s motion to suppress the evidence seized from his law office.

As a result of that hearing, the state was left with 17 items of evidence of which it chose to introduce five exhibits into evidence and those five exhibits are the exhibits which are listed in the Solicitor General’s appendix.

I should point out here so that there is not any confusion that their — the search — there were two searches, conducted on October 31.

One of the petitioner’s law office located at 3700 Decatur Avenue and the other located at his corporate offices.

He had a number of corporations.

Among them Mount Vernon Development Corporation and Kensington Corporation.

And these records are — the location of these corporations was about five blocks away, 3514 Priers Mill Road.

Both searches commenced at the same time.

And 52 items or exhibits were seized from the corporate offices at 3514 Priers Mill Road.

Only one of them was eventually introduced.

All the rest were either suppressed or they were returned by the State.

I think, however, pretty clearly under the Bellis case which Mr. Justice Marshall wrote that these were corporate offices and were not dealing with the same constitutional problems.

The petitioner was convicted of three counts —

William J. Brennan, Jr.:

But as I understand that — that relates to only one exhibit that actually got into evidence (Voice Overlap)

Jon F. Oster:

That is right Your Honor.

And that is — that is the first three Exhibits B, C and D on the first three pages of the Solicitor General’s appendix.

William H. Rehnquist:

And again, how many exhibits were or admitted in evidence as a result of all these searches?

Jon F. Oster:

They are the exhibits which are listed in the table of contents.

And there are few handwriting exemplars which have not been included, but they are basically 2, 3, 4, 10A was — while 10A was introduced — it had to do with a charge concerning the misrepresentation of the stamp tax that was due to Montgomery County, and that was withdrawn so that is really not relevant.

William H. Rehnquist:

But Exhibit 2 for example is made up I see of 13 letter subsections?

Jon F. Oster:

That is right.

That was a file.

That was one file and this was the contents of the file.

William J. Brennan, Jr.:

(Inaudible) that one real estate transaction with Clark, can you do?

Jon F. Oster:

On that one, Clark King.

William J. Brennan, Jr.:

(Inaudible)

Jon F. Oster:

Yes.

That was their purchase and that relates to the settlement sheets that I have brought to the attention of the Court when I started.

The petitioner was convicted of three counts of fraudulent misappropriation by a fiduciary in contravention of Article 27, Section 132 of the Code of Maryland and five counts of false pretenses.

He received eight concurrent 2-year sentences.

After appealing to the Court of Special Appeals of Maryland, that Court reversed the petitioner’s convictions on four of the five counts of false pretenses because the necessary element of the offense, the intent to defraud had not been alleged in the indictment.

The Court of Special Appeals rendered its decision on January 10, 1975.

Cert was denied by the Court of Appeals of Maryland on March 31t, 1975 and thereafter this Court granted cert.

As the case comes to this Court, the petitioner seeks reversal of conviction on one count of false pretenses relating to Lot 13T in Section 10 of Potomac Woods.

This is a development in Montgomery County and all of the charges flow out of Section 10 of Potomac Woods and three counts of misappropriation of funds by a fiduciary relating to Mr. and Mrs. Richard Pullets, Mr. and Mrs. Seth Moorefield, and Mr. and Mrs. Robert Holtsclows (ph) who purchased Lots 12S, 25R and 7T respectively in Section 10 of Potomac Woods.

Warren E. Burger:

We will resume there at 1 o’clock.

Jon F. Oster:

Thank you Your Honor.[Luncheon Break]

Warren E. Burger:

Mr. Oster you may resume.

Jon F. Oster:

Mr. Chief Justice and may it please the Court.

I was simply finishing up a statement of the case.

The evidence seized from Mr. Andresen’s law office pertains only to the false pretense charge relating to Lot 13T and the misappropriation of funds by a fiduciary charge relating to the purchase of Lot 7T by the Holtsclows.

Furthermore, most of the items of evidence relating to Lot 7T which were seized from the petitioner’s law office are duplicates of evidence from other sources which were introduced at this trial through other witnesses.

So this means that there could be the possible application of the concurrent sentence doctrine, if the Court wish to apply it because only two of the possible charges —

Out of how many?

Jon F. Oster:

Out of four, two relate to independent testimony and independent exhibits of evidence totally unrelated to the —

(Inaudible)

Jon F. Oster:

The counterpart relates to one of the charges, the Holtsclows, fraudulent misappropriation.

That was Lot 7T and that was the example of the two settlement sheets that I showed you.

But that — they also introduced identical exhibits through the Holtsclows themselves.

Byron R. White:

(Inaudible) you say that the — that any — any of the arguments that are presented relate only to certain counts?

Jon F. Oster:

That is right.

Byron R. White:

Other counts on which they were given concurrent sentences had — do not have the — this clause?

Jon F. Oster:

The other counts relate to test?

(Inaudible)

Jon F. Oster:

Yes, if it is a flaw, the other counts relate to fraudulent misappropriation charges and the evidence in the testimony there are totally unrelated to the search and seizure of the evidence of the petitioner.

Byron R. White:

(Voice Overlap) are those counts independently affirmed in the State Courts?

Jon F. Oster:

Yes they were.

William J. Brennan, Jr.:

(Inaudible) that this clearly in mind, the Holtsclows documents?

Jon F. Oster:

Yes.

William J. Brennan, Jr.:

Are those to which you address our attention before lunch, are they not?

Jon F. Oster:

Yes, Mr. Justice Brennan.

William J. Brennan, Jr.:

And what you are telling me now is that — you are telling us now is it counterparts of these, those in the possession of the Holtsclows were introduced in evidence through the Holtsclows?

Jon F. Oster:

Yes.

William J. Brennan, Jr.:

And thus you did not — and were this also — this also –those also seized ere also introduced (Voice Overlap).

Jon F. Oster:

Well, I think if you look at the bottom of page 7 you will see that a copy of this document was also introduced as part of the State’s Exhibit 29 from Robert Holtsclows’ record, transcript 131 and if you look at page —

William J. Brennan, Jr.:

Identical copy, is it?

Jon F. Oster:

Yes sir.

Byron R. White:

(Inaudible) how about the separate forms — I take it you say that there were — that the evidence on certain counts did not include any of this material —

Jon F. Oster:

That is correct.

Byron R. White:

— that was seized from the office?

Jon F. Oster:

That is correct.

The material that was seized from the — from the office applied principally to the false pretense counts against Lot 13T.

Byron R. White:

But principally, let us — let us get it — give me a count that the evidence on which it did not rest at all or completely unrelated to any?

Jon F. Oster:

The counts relating to the Pullets and the count relating to the Moorefields.

Byron R. White:

The evidence did not include any of the evidence received from the —

Jon F. Oster:

That is correct.

That, that evidence was introduced by the — by the Pullets and Moorefields themselves.

They testified and they introduced their documents.

And —

William J. Brennan, Jr.:

(Inaudible) affirmed by the Court of Appeals?

Jon F. Oster:

Yes.

I think — well —

Byron R. White:

(Inaudible) it does bar?

Jon F. Oster:

No it does not.

No.

I think it was in Benton versus Maryland that — it certainly does not bar your consideration of the substance issue here.

Byron R. White:

Do you — point this out — on your — to response to the petitioner?

Jon F. Oster:

No I did not, Your Honor.

We — I overlooked it. However, it is very clear that — is that the option of the Supreme Court is to whether or not you wish to apply this doctrine.

I think that I am going to have to go into somewhat into the factual background which led to the search and seizure of this — because the petitioner has rested so much his testimony as to the issues of probable cause and the background of it and I feel it would be helpful to the Court.

In early 1972, the Washington Posted did some expose articles on real estate settlements in the metropolitan area.

There was some evidence that there had been abuse in the Montgomery County and Prince George’s County area and the state’s Attorney’s offices of those two counties setup a Bi-county Fraud Unit, as initially set up it consisted of three people, a Mr. Moyers, a Mr. Lawrence and a Mrs. Knowles.

Mrs. Knowles started working in the record office at Montgomery County and among the persons that you —

William H. Rehnquist:

Hen you say the record office, would that be the County record (Voice Overlap)

Jon F. Oster:

That is right, the County Record Office and they were looking at some of these real estate transactions.

The Pullets who were — one of the charges here the fraudulent misappropriation charge, were going to sell their house in July of 1972 and discovered that there were several liens on the property which had never been released.

Of course they had been led to understand by the petitioner who handled their real estate settlement that all the liens had been released and of course they would not have received their first mortgage, if the liens had not been released.

A complaint was given to the state’s Attorney’s Office and to the Bi-county Fraud Unit and they did start investigating both the Pullets and the Moorefields and the Holtsclows because they were basic deeds of trust which covered all of the Section 10 of Potomac Woods so that they did have some evidence that there were deeds of trust outstanding and that they had not been released.

These deeds of trust would be a basic financing situation where a financial institution would loan $37,000.00 to a builder and the builder would give a deed of trust which covered a great many lots and of course as a lot was sold — was sold you would pay a portion of the — of the lot of —

William H. Rehnquist:

Did the Trust provided for partial releases?

Jon F. Oster:

Yes it did, all of them.

As the background of this, in 1967, Clark King who was the builder and who is using the petitioner exclusively as his real estate attorney for handling settlements, was having difficulty paying off his contractors.

The petitioner agreed with Clark King, this is the name of the company, it is Mr. Clark, to maintain a running account whereby he would ostensibly lay out money for Clark King, so that a free and clear title could be delivered.

Jon F. Oster:

Clark testified at the petitioner’s trial that he thought this was a lending arrangement under which the petitioner would be repaid once sales improved.

Clark thought that the debts secured by the deeds of trust on the various lots were being paid off so that good titles were being delivered at the time of settlement.

The deeds of trust and other encumbrances were listed on the seller’s settlement sheet as I have already illustrated to you.

However, the evidence at the trial indicated that the encumbrances were frequently not being released.

There were two deeds of trust covering Lot 13T, that is the false pretenses charge, the principal one against the petitioner.

As security on a note for $31,000.00, Clark King executed a deed of trust to State National Bank on a number of Potomac Woods lots, including Lot 13T.

This deed of trust was recorded on August 2, 1968.

A security on another note in the amount of $24,000.00, Clark King executed the deed of trust to Author Dale Lumpstien (ph) in the amount of $24,000.00 on a number of Potomac Woods lots.

This deed of trust also included Lot 13T, so there were two deeds of trust.

Actually there was an — was a third one as well.

Excuse me, there were two on 13T, two deeds of trust.

The second deed of trust was recorded on October 9, 1968.

Mr. Andresen, the petitioner, was the trustee on the deed of trust to the State National Bank and was personally responsible for signing any releases for individual lots.

Warren E. Burger:

(Inaudible) you are giving us now go to the question whether this is a business record originally (Voice Overlap).

Jon F. Oster:

No, it does not.

I thought if the Court is interested I will go to that Your Honor but I thought since the —

Warren E. Burger:

I am not sure with the limited time you have, what is the purpose of this (Voice Overlap).

Jon F. Oster:

I realized that the Solicitor General, the Solicitor General will discuss the Fifth Amendment and I will get to that, but I was concerned about the probable cause arguments that had been registered by the petitioner and that is why I was going into it.

(Inaudible)

Jon F. Oster:

Yes they have.

I will move into the — if the business records — if it is the wish of the Court.

Byron R. White:

Well, I am not (Inaudible) the remaining Fourth Amendment argument though was it — it was just a shotgun warning?

Jon F. Oster:

Well, there were a number of issues.

Byron R. White:

Whether probable cause are not, just warrant —

Jon F. Oster:

That was one of the arguments that it was a general warrant because of the language attached to —

Byron R. White:

(Inaudible)

Jon F. Oster:

Well, I would say first that the Court of Special Appeals pointed to the great particularity and I think if you look in the record, you will see the great particularity that is recited in the warrant and I do not think that you can attached any significance to those last three or four words that — we are on the — I think it is page 90 — I think that is — 96 together with other fruits instrumentalities and evidence of crime at this time unknown.

Time is —

Byron R. White:

(Inaudible) that any of the evidence that was not suppressed was specifically listed?

Jon F. Oster:

I am saying that all of the evidence, all of the evidence related to either Lot 13T or it related to the Holtsclows’ Lot which was 7T and the Holtsclows’ lot was secured by a deed of trust which also secured 13T, so there was a relationship.

Warren E. Burger:

And none of this fell under catch all clause at the end of the warrant, is that your position?

Jon F. Oster:

No, no.

There are two wherefore clauses in the application for a warrant and in the second — in the second wherefore clause they specifically refer to the State National Bank deed of trust and that deed of trust covered both Lot 13T and the Holtsclows’ lot which was 7T.

Byron R. White:

What we are asking is that perhaps all of the evidence or at least the evidence that was introduced at trial, all of that was specifically listed on the warrant?

Jon F. Oster:

Yes.

My —

Byron R. White:

None of it was (Voice Overlap)

Jon F. Oster:

There was to rummaging and searching.

Byron R. White:

(Voice Overlap) general clause?

Jon F. Oster:

There was no rummaging or searching.

The proceeding on the motion to suppress took two days.

There was a — it took about two-and-a-half, it started at 10:30 in the petitioner’s office, but if they waited another half hour for the —

Byron R. White:

(Inaudible) were any of the documents suppressed, suppressed for the reason that they were not specified on the warrant?

Jon F. Oster:

They were — many documents were returned by the State’s Attorney. Other documents were suppressed by the Court because there was no nexus.

Byron R. White:

So your answer is, my question is —

Jon F. Oster:

Well, my answer to your question is that the search and I — that the search was conducted in conformance with the —

Byron R. White:

None of them was suppressed because they were not listed with specificity on the warrant?

Jon F. Oster:

No.

The only reason for suppression was that there was no nexus or that they were irrelevant, but as far as the specificity is concerned, I think in the record of the suppression hearing —

William J. Brennan, Jr.:

(Inaudible) specify those that were suppressed?

Jon F. Oster:

Did the warrant specify?

No.

I do not thing it did.

The warrant was very, very carefully drawn.

The warrant was extremely carefully drawn and they were looking —

Byron R. White:

(Inaudible) Did the warrant list any of the documents that were suppressed?

I thought you indicated to me that the warrant listed all of that was suppressed.

If there was no nexus between them (Inaudible)

Jon F. Oster:

There was a return on the warrant with 29 items and they are listed on the return.

Of those items, eleven items were either suppressed by the Court or they were returned by the State leaving seventeen items and out of those seventeen items, the state elected to introduce five and those five items are listed in the appendix of the Solicitor General’s brief.

Warren E. Burger:

In other words, they are all specifically identified in the warrant, is that what you are telling us?

Jon F. Oster:

Well, to the extent —

Warren E. Burger:

(Voice Overlap) an application?

Jon F. Oster:

Mr. Chief Justice, to the extent that they relate to Lot 13T or to the extent that they relate to the deed of trust to the State National Bank —

Warren E. Burger:

(Inaudible) identified specifically?

Jon F. Oster:

They are specifically identified.

John Paul Stevens:

Mr. Oster, may I get something straight?

I am a little bit confused.

In answer to Justice White, if I understood you correctly, you said that some documents were suppressed because they had no nexus?

Jon F. Oster:

Yes, Your Honor.

John Paul Stevens:

Nexus with what?

Jon F. Oster:

They had no nexus with Lot 13T or —

John Paul Stevens:

Then would that not also be true, they did not have a nexus with the particular descriptions in the warrant, and therefore, probably were seized pursuant to the catch all clause of the warrant?

Jon F. Oster:

Well, there is testimony in the suppression proceedings in which — which they go into great detail as to how they were trying to identify the material.

They went into a law office and they found files, a lot of files on tables.

Some files, there is testimony that the filing system was something that the investigators were not familiar with.

There was one comment, it was helter-skelter.

Some files related to Section —

John Paul Stevens:

The documents were seized pursuant to the catch-all clause rather than pursuant to the specificity?

Jon F. Oster:

No.

In the cross examination of the investigators, the attorney for the petitioner went into that in great detail and they emphasized that they were trying to relate it to, they knew about three deeds of trust and they also knew about Lot 13T which is set out in the affidavit, and everything that they attempting to seize related to those items.

Now, they did make mistakes as they were pulling certain files.

But they had to make some kind of a cursive research of certain files.

For instance, they knew that most of the lots they were concerned with, that they knew that there were deeds of trust that had not been released were in Section 10 of Potomac Woods and —

Thurgood Marshall:

Please tell me what the Judge said when he suppressed them?

Jon F. Oster:

What he said?

Thurgood Marshall:

Yes.

Jon F. Oster:

I cannot — I do not think that I can —

Thurgood Marshall:

(Inaudible) I do not know what he said.

How do I find out why the Judge suppressed certain documents?

Jon F. Oster:

If I had the time, I can certainly find them for you, Your Honor, in the proceedings.

It is in the proceedings.

There is a 450 word transcript, 375 pages of which relate to the motion to suppress the — to the —

Thurgood Marshall:

And he thought it was important enough to pick it out?

Jon F. Oster:

I regret —

Thurgood Marshall:

That is alright.

We will find it.

We will go through the pages.

Jon F. Oster:

I regret that and I am —

Thurgood Marshall:

We have time enough.

If you do not, we do.

Warren E. Burger:

(Inaudible)

Jon F. Oster:

I did not bring the case Mr. Chief Justice.

Warren E. Burger:

Let me be sure.

You have said to us if I understood you correctly, that all of the five exhibits submitted were identified in the warrant and were not taken pursuant to the catch-all clause at the end?

Jon F. Oster:

That is right.

They were papers relating to Lot 13T or they were papers that related to the deeds of trust and both of which are set forth in the application to the warrant.

Warren E. Burger:

And your position would be, even if you took 500 documents erroneously, but did not have them go into evidence, it is irrelevant to this case now?

Jon F. Oster:

Well, I think under the factual circumstances that when you go into a law office, it is got to be expected that you are not going to be able to readily identify something right away.

They tried —

Byron R. White:

(Inaudible) yes, that is just yes.

Jon F. Oster:

Yes.

Warren E. Burger:

(Inaudible) We do not care about the things that were not admitted at least I, speaking for myself that is not in the case.

It is what was admitted that we are concerned about?

William H. Rehnquist:

Well, I think, I take that you are also saying that where there were mistakes made, it was not, at least a testimony to suppression hearing indicated it was not in reliance on the catch-all clause, but in the mistakes as to the meaning of the more specific language of the warrant?

Jon F. Oster:

That is right and the State recognized and the state at the suppression, at the suppression proceeding the State returned a lot of documents voluntarily.

The real reason for the length of the suppression hearing is that they went through every document.

They would go through, they would go into a file and take each document one by one, the Judge would rule.

I only have a few minutes more and that I will just take a minute to refer to the Fifth Amendment.

The State feels that under Couch and under the Blank case that these are business records, I would point out that this was not a subpoena.

Jon F. Oster:

This was a valid search and seizure and that we believe that the nature of the records are such that they are not testimonial or communicative that those terms do not seem to be applied.

Byron R. White:

Let us assume they were, are you as a state in trouble?

Jon F. Oster:

I do not know that this Court has said that if they are testimonial and communicative, they are barred.

Byron R. White:

Where is the compulsion?

(Voice overlap) Where is the compulsion?

Jon F. Oster:

Well, I would say the compulsion applies when there is a subpoena and the petitioner is required to come and identify the documents himself.

I do not think that there is any compulsion when there is a valid search and seizure and the search and seizure is, you know, is conducted in accordance with the mandates of the Fourth Amendment.

Thank you.

Warren E. Burger:

Thank you Mr. Oster.

Mr. Randolph.

Randolph:

Mr. Chief Justice and may it please the Court.

The United States is here to argue the question arising under the Fifth Amendment privilege.

It is our position that a defendant has no Fifth Amendment privilege to bar the admission into evidence of items seized, in this case business records from him, so long as the items were seized in compliance with the Fourth Amendment.

The purpose of my argument, I will assume that the Fourth Amendment has not been violated in this case, the petitioner suggested in his oral argument that documents, papers, books, ledgers are accorded and should be accorded special treatment.

That is that when such items are seized, apparently the Trial Courts review them to see if they contain ideas and petitioner contends that if they do contain ideas, then he can properly invoke his Fifth Amendment privilege to bar their introduction.

Presumably, petitioner is referring to only his ideas it seems, would seem incredible that a book found on a — in a bomber’s apartment that said, how to make bombs which contains ideas would fall under his rule.

But in any event, what petitioner is contending now really sounds more like a First Amendment claim and the claim under the Fifth Amendment.

Why the fact that a document contains ideas, implicates the Fifth Amendment is hardly clear and is hardly clear where the Court would go, what the — where the path would lead if the Court adopted such a doctrine.

Would it mean for example, that it would, you could seize a robber’s mask, but not the note that he showed to the teller or the schematic drawing that he made of the bank prior to the robbery or that you could take the typewriter from the kidnapper’s apartment, but not the half completed ransom note that is contained in it or indeed even closer to a case decided by this Court that you could not seize a coded message on a piece of graph paper which was what was seized in the Abel case and introduced into evidence and upheld by this Court.

Presumably, most telephone calls, one likes to think contain ideas and yet this Court has upheld under proper circumstances in compliance with the Fourth Amendment, the seizure is such cause.

As far as petitioner’s case is concerned, it is doubly difficult to see why the Fifth Amendment is involved.

Certainly, petitioner was not compelled to take the stand in this case and in fact he did not.

He was not compelled the right.

He was not required to speak.

He was not forced to admit anything in this case.

As a matter of fact, the documents that are contained in our appendix in the bright yellow volume were all documents that petitioner created himself or that someone in his employment created presumably for him.

Petitioner seems to contend that because he was the source of evidence, and so do incriminate him, he was compelled to be the source because he had to subject himself to a search, that therefore, his Fifth Amendment privilege bars the introduction of the evidence obtained.

The Court has rejected just such an argument in the Schmerber case and it rejected it again, I think in Dionisio and in the Mara case only a few terms ago.

The test in every case must be testimonial —

You believe that the document’s question is open though?

Randolph:

In Mara, there were doc — they were handwriting exemplars and the — I do not think the Court has ever directly faced the doctrines question.

That is (Voice Overlap)

Potter Stewart:

I thought there was a — at least one case here where the question was explicitly left open.

Schmerber.

Randolph:

Well, I do not — I do not know whether it is accurate to say the question was left open.

What Schmerber — Warden and Hayden — what Warden and Hayden said is we do not have to decide that issue here.

I do not think that implies —

Byron R. White:

(Voice Overlap) whichever came last, cited the former and at least they were tied together so the reservation is there on documents.

I do not know that the reservation relates to whether there is a compulsion or not?

Randolph:

Well, the question of whether there is compulsion on the one hand and the question on whether the document seized is testimonial on the other seemed to me not to relate to one another.

It is not very much different in saying in the month of May more babies are born in Denmark and also in the month of May more storks fly over Denmark.

Therefore, the conclusion is obvious is it not?

Storks bring babies.

No, it is not obvious.

Just because there is compulsion, if you define it as having to stand aside while the police search and just because the document is testimonial, it does not mean that the Fifth Amendment privilege is in anyway implicate because —

Byron R. White:

Well, there are cases, there are several cases in the Court that say that if the Fourth Amendment is violated, so as the Fifth?

Randolph:

Yes, Boyd said that and I think —

Byron R. White:

(Voice Overlap) a whole line of cases said that, and the only way that Fifth could have been violated is if there are some element of compulsion in a search warrant?

Randolph:

I think the Court is moved away from —

Byron R. White:

Is it not so, is it not so?

Randolph:

I think that is true, yes, but I think the Court has moved away from that.

In Mapp versus Ohio, I agree it was only four Justices and Justice Black expressed that view in his concurring opinion in Mapp, but in Mapp v. Ohio the Court arrested the exclusionary rule it seems on the Fourth Amendment I think Calandra makes it even clear that it rests on the Fourth Amendment not the Fifth.

When Mapp was decided, the Fifth Amendment was not made applicable to the states.

It was not done so until Malloy v. Hogan I think two years later.

Was it not Gilbert against California left this question open?

Randolph:

It was Warden and Hayden.

Potter Stewart:

No, I just read Warden and Hayden, I was settling now for Gilbert.

I thought that is what I had in mind I think.

Randolph:

Now, there has been some talk about the analogy here to a subpoena duces tecum in the cases that Court has decided under that.

Petitioner seems to argue that simply because a document maybe, that he may invoke his privilege to bar production of a document pursuant to a subpoena, therefore, it follows that the document cannot be had pursuant to a search.

Randolph:

And he assumes that he could have barred the production of these documents in this case by, if they have been sought by a subpoena duces tecum.

I will assume the premise, but the conclusion that he reaches from that does not follow because he has failed to take into account the reason why the Fifth Amendment is implicated when a subpoena duces tecum is issued to an accused or to a suspect in a case.

The Court said in United States v. White, it repeated again in Couch, said it again in Bellis recently that the Fifth Amendment privilege is designed to prevent the use of or to prevent the use of legal process “to force an accused to produce and authenticate any personal documents or effects that might incriminate him.”

As far as the subpoena is concerned, the Court has not drawn a distinction between documents on the one hand or effects on the other.

The Fourth Amendment certainly does not draw such a distinction.

It talks of persons, homes, of papers and effects.

All the items are on an equal plane.

So if petitioner’s argument were accepted, arguably it may mean and since the Government may not be able to subpoena even tangible items like a gun or the bag in which weapons were carried, therefore, it could not validly search for such items.

And I think the history of this Court’s decisions under the Fourth Amendment is enough to refute that contention, but that brings me to what I think is the critical point, what the Government thinks is the critical point in this case, that is when a subpoena duces tecum is issued to an accused, it forces him to respond.

When a search warrant is issued, there is no such compulsion to respond.

In the forced response from the subpoena duces tecum, the Court has found implicit testimony that is that the item demanded is the item produced.

If you look at a subpoena and the Federal Rules are set out, the subpoena says, you are hereby commanded, that sounds very much like compulsion and the command is directed to the person that receives the subpoena.

A similar language in the search warrant, you are hereby commanded, but the command goes not to the person who is subject to the search, it goes to the person, the officer of the law who executes it.

As far as the person subject to the search is concerned, his only — the only restrain on him is to stand aside to let the search proceed.

He is compelled to do nothing.

Although, that is rather ambiguous phrase, but in those circumstances it seems odd as an initial matter that the Fifth Amendment would be violated by telling someone to stand aside. You are thereby compelling him to be a witness against himself.

Now, petitioner’s argued and Boyd itself seems to say throughout, and I think what is left after this and I will address Boyd in a moment, the dictum in Boyd, is really a generalized claim of privacy that, well, petitioner ought to be allowed to invoke his Fifth Amendment privilege because after all, his privacy would be invaded.

We think, properly understood, privacy is not involved in this case at all, at least as far as the Fifth Amendment is concerned.

The rule, the general rule, I think the Court has referred to it as the Ancient Rule, is just the opposite.

In a criminal case, the public has the right to every man’s evidence, whether that evidence is private so long as it is related to the question before the Court or before the Jury.

The rule applies to newsman, the Court so held in Branzburg v. Hayes, it even applies to the President of the United States.

The framers of the Constitution, if they designed the Fifth Amendment to protect privacy committed an incredible blunder because if they designed it to protect the privacy of the citizens of this country, they left out all the innocent people here who could never claim the Fifth Amendment or that they would be incriminated by producing a document.

I think what I have just said has been repeated by the Court recently in a footnote, in Nobles, in the Nobles case, footnote 7 specifically, where the Court quotes Mr. Justice White concurring in United States v. Mara, I think it was where Mr. Justice White said the purpose of the relevant part of the Fifth Amendment is to prevent self-incrimination not to protect private information.

Now, as far as Boyd is concerned, there is dictum to be sure that seems to point in the other way.

The Court could find no difference between on the one hand a search for evidence and compelling a man to incriminate himself.

But the premises on which Boyd rested we think are undercut and have been undercut for quite sometime in this Court.

First of all, one premise, there are four basic premises for that statement in Boyd, the first is that a search and seizure of mere evidence is not permitted, Warden v. Hayden overruled that doctrine.

The second is that a subpoena duces tecum which was the fact situation of Boyd is the equivalent of search and seizure.

Since Oklahoma Publishing Company v. Walling, the Court has not followed that doctrine, they are not equated.

The third resting point of Boyd is the one I have already mentioned.

Randolph:

That evidence seized in violation of the Fourth Amendment violates the Fifth Amendment privilege if introduced, an exclusionary rule.

I think that decisions of this Court for Mapp versus Ohio on recognized the exclusionary rule rests on the Constitutional basis on the Fourth Amendment only.

And finally, the final point of Boyd is that compelling a person to final premise of Boyd is that compelling a person to be the source of incriminating evidence violates his Fifth Amendment Privilege.

That was rejected in Schmerber which involved the taking of a blood sample from an individual under compulsion.

That was rejected in Wade, which involved the lineup.

It was rejected I think in Dionisio which involved the voice exemplar, and it was rejected in Mara.

So, they are four basic pillars to the foundation of Boyd.

One, the search and seizure of mere evidence; two, the subpoena is equal to a search; three, evidence seized in violation of the Fourth violates the Fifth exclusionary rule, and four, compelling a person to be the source of incriminating evidence violates his Fifth Amendment privilege.

Not a single one of those doctrines stands anymore.

We think, therefore that what was only dictum in just a few lines in the Boyd opinion is no longer a good law and should not be followed.

Thank you.

Potter Stewart:

That means that or perhaps I just sing out loud, as I recollect Mr. Justice Black’s concurring in the opinion in Mapp against Ohio was based upon those doctrines of the Boyd case?

Randolph:

Well, his concurring opinion in Mapp versus Ohio is — would not — if it were accepted would not affect my argument because his concurring opinion was that if evidence taken in violation of the Fourth Amendment is introduced, it violates the Fifth.

The premise of his argument is that it violates — that the evidence has been taken in violation of the Fourth, and of course, I am assuming that it has not —

Byron R. White:

But it could also have to be that there was compulsion?

Potter Stewart:

There had to be?

Randolph:

Well, of course.

The Fifth Amendment says that it is compelled a witness against himself, but as I said I do not think the Court has accepted that doctrine.

Warren E. Burger:

As you pointed out a number of expressions since then and within the Courts have gone the other way?

Randolph:

And your dissenting opinion in the Bivens’ case I think details this development.

Thank you.

Oh! I am sorry I have been asked since I have a few minutes to — in answer to Justice Marshall’s question where in the transcript the page reference — the transcript of the suppression hearings, the page references are page 162.

Warren E. Burger:

That is the transcript or the appendix?

Randolph:

The transcript of the suppression, 162.

Warren E. Burger:

Mr. Andresen.

Peter C. Andresen:

The principles of Boyd, I do not agree, have been rejected by Schmerber and Gilbert, as a matter of fact both cases were cited and maintained the Boyd rule.

Gilbert used the language as to relating to a hand writing exemplar that in contrast to the content of what is written, like the voice or body itself is only an identifying characteristic and Schmerber on the same rationale — Mapp did not reject the Fifth Amendment holdings.

I do not have a definite citation in front of me.

The question is, is whether we are talking about the content of the testimony or the communication from it or whether it is as to what is written there itself.

In Dallas, Boyd has been reiterated by the words of Justice Marshall and quoting from Boyd, “it has long been established that the Fifth Amendment privilege against compulsory self incrimination protects an individual from compelled production of his personal papers and effects as well as compelled oral testimony.”

Warren E. Burger:

Was there any search warrant in the Boyd case?

Peter C. Andresen:

Boyd case was a subpoena, Your Honor.

It was a bill of lading that was seized which was held to be testimonial and going on further from Boyd and Couch and Hill versus Philpott, the words in Bellis continue to say that privilege applies to the business records of the sole proprietor or sole practitioner as well as to the personal documents containing more intimate information about the individual’s private life.

Now, the character of the papers was never raised or decided below.

This is being raised by both the State and the Federal Government for the first time here.

The Fifth Amendment contention was rejected solely on the basis of the Blank case and the Fifth Amendment contentions at the time of the trial were rejected solely because of the reasonableness of the search warrant.

Now, the question is now going through the appendix, I certainly disagree as to most of the contentions of both the State and the Federal Government as to the items here.

Beginning on page 44 through 60, are all handwritten items, which were established to be in petitioner’s handwriting in which the Court of Special Appeal as I point out in the brief, were among the most important items.

Byron R. White:

(Inaudible) fundamentally is that even if you comply with the Fourth Amendment, you have a perfect search warrant and even though the search is a reasonable one, it nevertheless violates the Fifth Amendment if the search warrant has named the papers?

Peter C. Andresen:

If the papers are of the type which is protected by the Fifth Amendment, yes sir.

William H. Rehnquist:

What type of is that?

Peter C. Andresen:

Testimony on communicative papers.

William H. Rehnquist:

How can a draft of a settlement statement come within that definition?

Peter C. Andresen:

Oh! Very importantly, a matter of fact, this was the sole amount of the evidence, the fact that the draft and the finished copy were different.

William H. Rehnquist:

Well, fact that is incriminating though, is that the test, if it is incriminating, it is covered?

Peter C. Andresen:

The test were that these thoughts expressed on this paper were never expressed to anybody else that these were kept by the petitioner.

As matter of fact some of these papers were taken from my desk, these notations were never in finalized form, but with the thoughts and working out the figures which was used to incriminate the fact that it changed and that items were deleted at the time of settlement was the whole crux in mens rea argument as to the — self — the self incriminating acts of — they totaled up to more and they were reduced to take care — be taken cared of an approach to this, that was the liens exceeded the sale price.

William H. Rehnquist:

Well, but then that simply makes your definition of documents coextensive with the notion of incrimination?

You do not need to show anymore about documents other than they incriminate you?

Peter C. Andresen:

You need to show that it is your own self creation being put down on the paper or something that you are maintaining for your own personal ideas.

William H. Rehnquist:

A draft of a settlement statement has the same standing as a personal diary?

Peter C. Andresen:

Yes sir.

Now, the important thing to reiterate is that these questions were never considered as to the Fifth Amendment and that Court relied solely on the Blank case.

Now, as to the compulsion question, just incidentally, it was never established as corporate offices.

As the matter of fact, the testimony, as pointed out in the brief, showed otherwise that the investigators plus the affidavit in the search warrant both show that they were my files maintained as an auxiliary.

That in both VonderAhe in the concurring and dissenting opinion and in Shaffer in the dissenting, it is pointed out just how much compulsion is involved in a search and Hill versus Philpott also does that.

Byron R. White:

Mr. Andresen, do you agree with your colleague saying that the conviction on some of these counts did not rest at all on any of the evidence that was introduced and which you challenge?

Peter C. Andresen:

Not at all sir.

I could point to specific act.

Warren E. Burger:

Thank you.

Warren E. Burger:

The case is submitted.