Camara v. Municipal Court of the City and County of San Francisco

PETITIONER:Roland Camara
RESPONDENT:Municipal Court of the City and County of San Francisco
LOCATION: Camara Residence

DOCKET NO.: 92
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: State appellate court

CITATION: 387 US 523 (1967)
ARGUED: Feb 15, 1967
DECIDED: Jun 05, 1967

ADVOCATES:
Albert W. Harris, Jr. – Assistant Attorney General of California, for the appellee
Marshall Warren Krause – for the appellant

Facts of the case

An inspector from the Department of Public Health of San Francisco asked Roland Camara to be allowed to search his residence. The inspector claimed that the occupancy permit for the property did not allow residential use of the first floor. The search was a routine annual inspection. Camara refused to let the inspector enter the building without a warrant. The inspector returned two more times without a warrant, and Camara turned him away. About a month after the first visit, Camara was arrested and charged with violation of the San Francisco Housing Code (SFHC) for refusing to allow the inspection. Camara sought a writ of prohibition, arguing that the section of the SFHC that authorized the inspection violated Fourth and Fourteenth Amendments. The Superior Court of California denied the writ, the District Court of Appeals affirmed and the Supreme Court of California denied a petition for hearing.

Question

Do §503 of the SFHC, which authorizes inspection of private dwellings without a warrant, and §507, which makes it a crime to refuse such an inspection, violate the Fourth and Fourteenth Amendments?

Earl Warren:

Number 92, Roland Camara, Appellant, versus Municipal Court of the City and County of San Francisco.

Mr. Krause.

Marshall Warren Krause:

May it please the Court, Mr. Chief Justice and Associate Justices.

This is a health inspector case and involves with the meaning of the Fourth Amendment which is the vexing an important problem which has been with us for a long time.

The appellant in this case believes that the Fourth Amendment is more than written of mere words.

It was written of the long experience of the colonists under the English rule in framing the Fourth Amendment.

It was written as its very word state to protect the security of the citizens and residents of this country.

It was not meant to be a nose of wax to be twisted to the convenience of petty government officials.

This case arose when an official wish to inspect the apartment of the appellant because he had learned that the appellant was living in an apartment which he did not believe was covered by a certificate of occupancy in an apartment house.

He went to the appellant, asked him whether he as living in this apartment, the appellant said, “Yes, he was”.

The health inspector then said, “May I come in and inspect.”

The answer was, “Do you have a warrant?

Do you have a complaint?”

The answers to both of those questions were, “No.

This is a routine inspection.”

And it was a routine inspection, permission was denied.

Again, the health inspector came back —

(Inaudible) inspection required by the statute?

Marshall Warren Krause:

The appellee claims that that was the power that the inspector was pursuing at the time, yes.

But it was not done as it was in Frank versus Maryland, it’s a relevant complaint by an individual?

Marshall Warren Krause:

No.

There was no complaint at all.

The only reason which has ever been offered is that the apartment may not have been the covered by the certificate of occupancy but that was sufficiently answered when the appellant said, “Yes, I do live here”.

And then the inspector came back two more times and on the second — third visit, November 22nd, 1963 in the afternoon, the inspector again required — said that he wanted to enter the apartment.

It was denied, permission under exactly the same circumstances and for this offense on November 22nd, the appellant was charged with a crime.

We attempted to prohibit that crime through California procedures in the California Courts but that prohibition proceeding did not succeed because the courts below relied on Frank versus Maryland.

Now, the inspection was done under Section 503 of the San Francisco Municipal Code which provides that any city employee in the performance of his duties may inspect any premises at reasonable times as long as he is performing his duties.

You will note that the statute does not require any warrant.

It does not require any probable cause.

It was — it does not require any complaint and no appointment is necessary.

Potter Stewart:

Now, the way you worded that, the way you said that was worded, that presumably I suppose with apply to a policeman looking for a contraband in a house or looking for a criminal?

Marshall Warren Krause:

It says any city official in the performance of his duties.

It’s not limited in any way.

Although, it is a part of the Municipal Code the — however, I would point out that the Municipal Code does contain criminal sections which punish certain acts as crimes.

Potter Stewart:

Well, do you — does it — that wording it would seem to give blanket authority to the police department of the city to enter any house at anytime so long as he was looking for a criminal or looking for anything to do with the criminal offense without any warrant at all.

Is it — as your — has the State of California construed it to mean that?

Marshall Warren Krause:

No, they haven’t.

In all fairness I should say, that I know of no instance where a policeman on his own in searching for some criminal evidence has used this statute as you say the wording of the statute as any city employee and certainly the policeman are city employees.

As of yet, no policeman has tried to use this section to my knowledge.

We have no guarantee that they wouldn’t try it.

William O. Douglas:

How about your Welfare Department?

Marshall Warren Krause:

The Welfare Department has not tried to use this section but we certainly maintain and there is a case in California called the Parrish Versus Alameda County where the Welfare Department does claim the right to come in to people receiving welfare and inspect to see if the regulations are being followed.

And we think that if this case should be affirmed that the welfare people would certainly take advantage of it as well as property tax people, urban development people, anyone who thought that they had a reasonable interest in coming into a home.

William O. Douglas:

Do you cover the welfare angled, and this is in your brief?

Marshall Warren Krause:

Just mentioned it.

We don’t — we cite the Parrish case.

We don’t discuss it fully.

We mentioned these examples that there and — now, the —

Earl Warren:

Is there any other cases interpreting this section other than this one?

Marshall Warren Krause:

None your — none at all.

Potter Stewart:

Oh, I suppose since this — you’re talking about — we’re talking about Section 503, aren’t we?

Marshall Warren Krause:

Yes.

And then Section 507 —

Potter Stewart:

And —

Marshall Warren Krause:

— makes it a crime punishable —

Potter Stewart:

Yes.

Marshall Warren Krause:

— by six months in prison.

Potter Stewart:

This is under the San Francisco Municipal Housing Code and I don’t know about how your Supreme Court construe statutes but I would think that an ordinary — at least to some accepted (Inaudible) construction as it would — thought — be thought to be limited to duties under that code.

Marshall Warren Krause:

Well, there are criminal violations under that code and policemen (Voice Overlap) —

Potter Stewart:

But I understand that.

Potter Stewart:

But I’m going back to my question about giving blanket authority to the police in San Francisco.

Marshall Warren Krause:

Yes.

Potter Stewart:

I wouldn’t think that this would —

Marshall Warren Krause:

I would (Voice Overlap) —

Potter Stewart:

(Inaudible) hearing from you about that?

Marshall Warren Krause:

I would doubt it and we don’t claim that the police are using this to search for narcotics, peddlers or anything of that sort.

Potter Stewart:

Yes.

How about welfare?

That’s not part of the Housing Code is it?

Marshall Warren Krause:

No, but the — the why — the reason I asked — answered Mr. Justice Douglas’ question the way I did is that this case obviously is going to be setting the trend for all such inspections.

And now under the law, if a health inspector is allowed to come in without a warrant certainly welfare inspectors, property tax people, other people interested in performing their duties officiously are not —

Potter Stewart:

Why is that so certain?

Why if you let an elevator inspector come into a building once a year to inspect the safety of an elevator, does it necessarily follow that welfare inspectors could knock on dwelling doors in the middle of the night.

Marshall Warren Krause:

Oh, I don’t think the elevator inspector is an example which causes me any trouble because there’s a public building and each elevator is licensed.

And we would contend that the elevator inspector has the right to come in and look at this license premises to determine whether it’s safe.

And we contend that the health inspector has the right to come in to the public areas of an apartment house.

The fire inspector can look at the fire escapes.

It is only —

Potter Stewart:

Why?

Marshall Warren Krause:

— the private area —

Potter Stewart:

Why if you’re right?

Why can he without a warrant?

That building belongs to somebody even the public areas.

Marshall Warren Krause:

Yes.

That the reason that he can’t without a warrant is that the Fourth Amendment says that the people shall be secure in their homes.

Potter Stewart:

So I say why can he without a warrant?

Why can —

Marshall Warren Krause:

Oh!

Potter Stewart:

— the elevator inspector come in annually?

Marshall Warren Krause:

Because this is the business premises open to the public and —

Potter Stewart:

Business premises are protected by the Fourth Amendment I think?

Marshall Warren Krause:

This is premises to the extent that they’re not open to the public —

Potter Stewart:

— to the extent that the Fourth Amendment protects them they’re protected, aren’t they?

Marshall Warren Krause:

Well, persons, papers, effects and houses.

Now, whether the business premises come within those words or not is a question we don’t need to answer.

Potter Stewart:

I thought it had been long since decided by this Court that it had been answered —

Marshall Warren Krause:

Well —

Potter Stewart:

— that business offices are protected?

Marshall Warren Krause:

Yes.

There —

Potter Stewart:

Is it (Voice Overlap) —

Marshall Warren Krause:

There are protections for —

Potter Stewart:

These structures, they belong to somebody.

It maybe a grasping landlord but he’s a human being too, wasn’t he?

He’s protected?

Marshall Warren Krause:

Yes.

He’s protected in the private areas but I don’t think that if — this Court has decided that if a man holds out his premises open to the public that he can object because a policeman walks in or because a health inspector walks in.

Those people have the right to enter just as any other member of the public or the premises’ license such as a restaurant.

It has to maintain its license and as a condition of that license submits to inspection which all restaurants and other places do.

Then the inspectors may come in but homes, apartments, are not licensed and there is not that granting of consent.

Now, the Frank case is of course extremely important here.

We want to point out that the Frank case was decided before Mapp versus Ohio and the Frank case in its terminology and its discussion is all Fourteenth Amendment due process reasonableness.

We think that Mapp versus Ohio in deciding unequivocally that the Fourth Amendment contains the exclusionary rule binding on the states changes the complexion and the view in which this Court should view a search and seizure case coming from the state courts.

We think now that there’s no question that the full power of the Fourth Amendment applies to such cases.

The Frank case found two kinds of security protected under the Fourth Amendment.

They found the security to be protected against the search for criminal evidence, to be protected by the warrant procedure but it said, when there’s no specific search for criminal evidence then only test is reasonableness and no warrant is required.

That was the dichotomy drawn by Frank.

We don’t think that this dichotomy is acceptable anymore now that the Fourth Amendment is fully applicable to the States.

But we point out that the Fourth Amendment is not limited in terms in any distinction between a criminal search and a noncriminal search.

It is drafted to protect security and does not mention the Fourth Amendment.

Marshall Warren Krause:

Does not mention the — any dichotomy between criminal and non criminal.

It is true that when we’re considering what effect the Fifth Amendment has when considered with the Fourth Amendment then we consider the protection against self-incrimination then we consider the criminal elements of this.

There is no historical evidence that we have found to satisfy the idea that there should be a distinction between an intrusion into ones home or criminal evidence purposes and for not criminal evidence purposes.

Both are intrusions.

Both I think were objectionable in England on the right controversy over general warrants ensued and the idea in England as it should be here today in America is that warrants are required for all such intrusions.

The colonist had experience with the intrusion of government officials attempting to enforce laws, basically smuggling laws.

The colonist objected and I would say that John Adams and James Madison objected to the searches of homes not because some smuggled goods might be found and some goods might be forfeited or someone might be convicted of a crime but because of the insult that the intrusion into ones home causes.

The insult that a knock on the door is a statement that we have the right to enter and you don’t have the right to keep us out and we don’t have to even tell you if there’s something wrong or if there’s some complaint.

This is the insult —

Abe Fortas:

I’d like to — I beg your pardon.

I’d like to know what if any sort of entry as you believe would be permit — constitutionally permissible under this ordinance.

You started talking about that.

Now this particular inspection wasn’t it annual — apartment houses inspection for the purpose of issuing an occupancy license, is that right?

Marshall Warren Krause:

That’s what the claim is, yes.

But the particular inspection of my client’s apartment, the only reason given is because the apartment may not have been covered in the permit of occupancy because it was on the ground floor rather than on the second or third floor.

Abe Fortas:

But there was a store on the ground floor of this apartment building and the claim was that your client lived in the rear of the store, is that right?

Marshall Warren Krause:

Yes, he did live in the rear of the store.

That’s what he told —

Abe Fortas:

Alright.

Marshall Warren Krause:

— the inspector and that’s the fact.

Abe Fortas:

Yes.

Now, do you believe that its cons — it would be constitutionally impermissible for the inspector to enter this apartment building at all?

Marshall Warren Krause:

No, sir.

I don’t.

I think that it’s permissible for the inspector to enter the common areas of the apartment house such as the hallways and the fire escapes which are open to anyone to contact the manager to see that his license is being enforced.

Abe Fortas:

So that you would confine this to areas to which the public does not have access.

Marshall Warren Krause:

Yes, sir.

I think the home is that bastion of privacy which not only the framers of the Fourth Amendment meant to protect but that we must protect to preserve the security and privacy which is so significant today, the home, yes.

Abe Fortas:

Yes.

But on the ground floor there was a store and that — the rear of that store as I understand the fact, perhaps I’m wrong was being used as your client’s home.

Marshall Warren Krause:

Yes.

That was a separate apartment and there’s no dis — no problem with that.

Abe Fortas:

Now would you — you would — you’d have no difficultly with the proposition that the inspector could enter your client’s place of business?

Marshall Warren Krause:

Anyone can enter that place of business.

Abe Fortas:

But you say —

Marshall Warren Krause:

The door was open.

Abe Fortas:

You say that when the —

Marshall Warren Krause:

He was selling books there.

Abe Fortas:

But when the inspector demand a warrant to enter the rear of the store which is being used as residence by your client then he needed either a warrant or a some probable cause, (Voice Overlap).

Marshall Warren Krause:

Some emergency or something of that sort, yes.

And there was a distinction there.

As a matter of fact the only objection to the health officer’s presence came when he demanded to enter the resident’s part of the appellant’s premises.

Abe Fortas:

Suppose a rat infestation survey were being made of the four square block area and let say, in your judgment, would it be necessary for the inspector to obtain a search warrant applicable to each house in that area?

Marshall Warren Krause:

Well, first of all, the procedure of the health inspectors would be to seek consent and we think that he should seek consent.

Not only should he seek consent but he should educate the public as to the value of his inspection as to what he is doing.

He should let people know in advance that he will be there and this will induce consent on the part of many people.

And now, if there are — then people who resists, the question comes, is there sufficient facts to give to a magistrate under oath so that the magistrate may issue a search warrant under the Fourth Amendment to allow the inspection of that premises.

A search warrant would describe the premises to be searched, what was being searched for.

It wouldn’t be just a knock on the door, an unexpected knock on the door.

Abe Fortas:

In my situation, the police officer could — only could say is that he’s searching for migratory rats?

Marshall Warren Krause:

Yes.

And I think under that situation, any house in any city could be inspected because there is at least one rat in every city, if not, many more.

Potter Stewart:

You mean that you think it could be with a warrant?

Marshall Warren Krause:

It could be in — if this judgment is affirmed.

Potter Stewart:

No.

But how about your position, what do you think?

Marshall Warren Krause:

In my judgment, there must be probable cause under oath given to a magistrate that there are some reason to inspect these premises.

Potter Stewart:

Well, would a single migratory rat would be the sufficient reason in your opinion?

Marshall Warren Krause:

Of course, that’s a factual thing mainly to be balanced —

Potter Stewart:

Well, that’s the word you (Voice Overlap) —

Marshall Warren Krause:

— by the magistrate.

Potter Stewart:

— the facts.

Marshall Warren Krause:

If it comes out of the house and if the health inspector can say when we see a rat coming out of the house, we know that they’re likely to be more that there are — that these creates health problems then, yes.

One rat could be sufficient.

Potter Stewart:

One rat, one house?

Marshall Warren Krause:

One rat per house?

I —

Potter Stewart:

No.

Marshall Warren Krause:

I think —

Potter Stewart:

I want to get another word to your answer to Justice Fortas’ question which I don’t think at least — I haven’t understood that you’ve answered yet?

Marshall Warren Krause:

Alright.

Potter Stewart:

Let’s say that the Health Department wanted to carry out a two square block inspection of dwellings in a city for the purposes of exterminating rats and other rodents which carry diseases.

Now, what would they have to do under your submission?

Marshall Warren Krause:

They would first have to go and see if they could make this inspection on the basis of consent which —

Potter Stewart:

Well, let’s assume they did all that and every household said, no.

Marshall Warren Krause:

Alright, they had two blocks and now — then they would go to a magistrate and they would say —

Potter Stewart:

What would they say?

Marshall Warren Krause:

They would say depending on the facts.

If they said, we know that there are rats in this neighborhood.

We’ve seen them —

Potter Stewart:

No, but there — we’re searching to see if there are rats.

Marshall Warren Krause:

No.

Then that’s not sufficient Justice Stewart.

That’s just the mere suspicion and they could search — they could say that there might be rats in any home and any one of our homes —

Potter Stewart:

That’s true.

Marshall Warren Krause:

— could be searched.

Potter Stewart:

And you say then they could not —

Marshall Warren Krause:

They could not.

Potter Stewart:

— carry out this program.

Marshall Warren Krause:

They could not.

Marshall Warren Krause:

I’m not saying that they couldn’t inspect.

They couldn’t get a warrant for more than one house because they might have probable cause for more than one house.

But they could not search on the basis of mere suspicion without facts.

Byron R. White:

Well, a fortiori then I suppose that an inspector could not get a warrant from the magistrate if he merely said, we are obligated under the law to make an annual inspection of all of the buildings or all of the homes in a certain area and it is now time to make the inspection.

Marshall Warren Krause:

No.

That — it is in our position that that is not probable cause.

That is mere authority to make an inspection without probable cause.

Byron R. White:

And it is not because that a year has passed and it’s likely that certain things would’ve happened to a certain number of buildings in this area within a year.

Marshall Warren Krause:

No.

I think the probable cause must be specified as something specific as to this home —

Byron R. White:

Does an area —

Marshall Warren Krause:

— or these group of homes.

Byron R. White:

— area or annual inspections are out under your theory?

Marshall Warren Krause:

Yes, unless they can show some peculiar thing.

Byron R. White:

I understand.

Marshall Warren Krause:

Now, I would just want to mention that in the long history of search and seizure cases under this Court —

Earl Warren:

Well, wouldn’t you conceive that if the city had bubonic plague for instance that — and the statute gave this power of inspection that if they were making an inspection of the whole city, let’s say, and for the purpose of seeing whether it was rat infested and the owner, resident of the property refused to let the inspector to come in, that the magistrate could issue a warrant for this inspector, would you say that couldn’t be done?

Do you have to go that far in your case?

Marshall Warren Krause:

Well, I have to find — if I don’t I have to find an exception.

Of course, there’s always been an emergency exception.

If someone is yelling fire or help police, the fireman or the policeman may enter.

If there is that emergency, yes.

Earl Warren:

But we do have — we do — we have had inspections of that kind in your own city when they did have a bubonic plague (Voice Overlap) —

Marshall Warren Krause:

Yes.

Earl Warren:

(Inaudible) some recollection with that.

Marshall Warren Krause:

Yes.

Earl Warren:

So —

Marshall Warren Krause:

That was probably —

Earl Warren:

(Inaudible)

Marshall Warren Krause:

— before my day —

Earl Warren:

Was a very hard thing to get rid off and is that — does that mean that they’re barred from doing it even though they get — even they — though they get a warrant for inspection?

Marshall Warren Krause:

If they get a warrant, of course they can make an inspection but we —

Earl Warren:

Well, that’s what I mean.

Marshall Warren Krause:

Yes.

Earl Warren:

But wouldn’t that be sufficient cause for them to get a warrant from a magistrate?

Marshall Warren Krause:

If they went to the magistrate and they said we have a bubonic plague outbreak and it’s likely to becoming from this area and we know that there are —

Earl Warren:

Well many area in the city they might say.

Marshall Warren Krause:

Well, in that situation, I don’t think they could get a warrant allowing them to inspect every home in the city unless they could show that there’s some specific reason why every home in the city should be inspected.

I know that’s an extreme example and you’re backing me to the wall but I have to be consistent here and say that they should be able to come up with some facts that they can give an affidavit to a magistrate and if they can’t they’re not very good health inspectors whether the facts are that this is an old house that might be sufficient in a bubonic plague situation.

And because rat infester and old houses and rats carry bubonic plague, I think any good health inspector worth his salt could get a warrant and be able to give facts and solve that situation.

I don’t —

William J. Brennan, Jr.:

Can I ask this Mr. Krause.

An opinion in Eaton and Price, this was said of the situation then, but it was not shown that the inspector desired to make the inspection in pursuance to a regular routinized spot check of individual homes or in pursuance for a plan to blanket check of all the houses in a particular neighborhood or the like.

Oh, I understand you to say that if that implies that the — in that circumstance no warrant is needed, you’d disagree, is that right?

Marshall Warren Krause:

If no warrant is needed, I — for — the first part of that language —

William J. Brennan, Jr.:

You’d say if that implies —

Marshall Warren Krause:

Yes.

William J. Brennan, Jr.:

— that this may be done whether there’s a regular plan, the kind of inspection, —

Marshall Warren Krause:

Yes.

William J. Brennan, Jr.:

— the annual inspection (Voice Overlap) —

Marshall Warren Krause:

If that’s what it implies.

I —

William J. Brennan, Jr.:

You would disagree?

Marshall Warren Krause:

I would disagree with — I know and — I would disagree with that —

William J. Brennan, Jr.:

Well, may I ask, suppose the warrant were based on no more than this that the inspector went to a magistrate and said, I have — we have a regular plan problem of this sort of thing and we’d like to go into (Inaudible) before to do it.

You’d still say that that was not sufficient basis for a warrant, would you?

Marshall Warren Krause:

Yes.

That violates the privacy which was intended to be protected under the Fourth Amendment in —

William J. Brennan, Jr.:

And did you go far —

Marshall Warren Krause:

— the opinion of the appellant.

William J. Brennan, Jr.:

And you do go far, don’t you?

Marshall Warren Krause:

Pardon me?

William J. Brennan, Jr.:

You do go far, don’t you?

Marshall Warren Krause:

Well, I don’t think it goes far.

I don’t think it’s hard to get probable cause Justice Brennan.

I think that if they —

William J. Brennan, Jr.:

Well, in the dissent in Frank and Maryland it will suggest that with the — in this circumstance that that which might be required if this were a search where a crime was involved, it might not be required where all that was — it sought was an inspection of the sites or the sort, wasn’t it?

Marshall Warren Krause:

Certainly, the —

William J. Brennan, Jr.:

Well, how much less would you say that assuming that what was said in the dissent in Frank and Maryland where the rule mainly that something less was required than in the criminal case, how much less would satisfy?

Marshall Warren Krause:

That’s almost impossible to answer.

Each case must come up on its own facts.

In this case, no warrant was even applied for and the government is claiming the right to go in without even applying for a warrant.

I think that the standard that a magistrate would use in judging a warrant for probable cause might well be different than a criminal case and in that extent I agree with what Mr. Justice Douglas said.

William J. Brennan, Jr.:

I can’t help as to why — how much less there ought to be?

Marshall Warren Krause:

Well, I’ve — all I can say is that he must come up with some facts justifying an inspection of this specific house or this specific small individualized area and these must be particular facts.

If it were said in the affidavit that these homes were built 100 years ago similar homes are deteriorating that may be sufficient factual allegations to obtain a warrant.

The —

Earl Warren:

Suppose the fire department found that a defective wiring was the cause of many devastating fires and the people have been losing their lives because of these fires.

And the city thought it would be wise to require inspection of the wiring throughout the city to see if there — that it was defective.

And a person refused to permit inspector to go in.

Would you say that the magistrate could not in those circumstances issue a warrant for the inspection just on those facts and no more?

Marshall Warren Krause:

Yes.

I would say that that the magistrate has — would have no sworn facts before him indicating that the wiring in this house was in any way defective.

If you give me a little more facts if you say that the health officer or the electrical inspector was able to allege that this house was 50 years old and that the wiring is 50 years old that may be sufficient.

Let me throw out one more thing because I think it’s important.

I think there are alternatives for the various situations you suggest.

I think of the city is concerned about wiring, it could require an affirmative obligation which wouldn’t invade privacy that is that each householder get a certificate of compliance with current standards of wiring.

And that would be done by a licensed inspector of the house, the homeowners’ own choosing at his own time and it wouldn’t be the government intruding.

In other words, I think that it’s worth working a little bit to protect this privacy under the Fourth Amendment.

I think that it could be done.

Earl Warren:

Let me ask you this then in this (Inaudible).

I’ll ask you, do you — in order to win your case, do you have to go this far?

Marshall Warren Krause:

Perhaps not.

Earl Warren:

Well —

Marshall Warren Krause:

That —

Earl Warren:

Perhaps or do you?

Marshall Warren Krause:

No.

The Court could merely say that a warrant is required and then —

Earl Warren:

I beg your pardon?

Marshall Warren Krause:

The Court could merely say that a warrant is required and none was even applied for here.

So, I don’t have to go so far as to say that a routine search would not be sufficient for a warrant.

No warrant was even applied for here.

So I don’t need to go as far as I’m gone.

I feel that I must go this far because it is the Fourth Amendment in my opinion.

And if the opinions of this Court say that that’s the Fourth Amendment —

Earl Warren:

How would you think you should try to think of all the possibilities of the Fourth Amendment and to — and defend all of the actions of the private individuals in such cases or aren’t you — since you stick pretty much to the facts of your own case —

Marshall Warren Krause:

All with —

Earl Warren:

— well, wouldn’t you —

Marshall Warren Krause:

We’ve done that in our brief.

We’ve said in any event this case is distinguishable for Frank versus Maryland because there was no probable cause of any indication of something needing inspection.

This was merely a man who wanted to go in the house for a reason which has never been determined.

The only reason being that he said is that he was living there which was an admitted fact.

So this is quite different from Frank versus Maryland.

We’ve done that in our briefs and I think it’s appropriate —

But what you’re really saying I think, isn’t it that there cannot be a legislative determination in the health area to the fire area — the fire hazards —

Marshall Warren Krause:

Exactly the —

— public health.

There cannot be —

Marshall Warren Krause:

That’s exactly the exact —

— determination that routine inspections are necessary but that the whole question to satisfy the Fourth Amendment must be thrown in to the hands of individual magistrates on individual facts implication.

Marshall Warren Krause:

Yes.

And we would say that the other is the statutory writ of assistance which the history of this country outlaws.

If — and no matter how narrow the statute is limited, no matter how great the public welfare is or the justification of the routine inspections may be?

Marshall Warren Krause:

For routine inspections, the answer is, yes.

That’s (Inaudible) not here, routine inspection?

Marshall Warren Krause:

Yes.

The answer is yes.

I want to save some time for rebuttal so I will sit down.

Earl Warren:

You’d have no more time for (Inaudible).

Marshall Warren Krause:

Oh, may I ask for five minutes Mr. Chief Justice.

Earl Warren:

No, I think not.

I think you have taken (Inaudible).

Mr. Harris.

Albert W. Harris, Jr.:

Mr. Chief Justice, may it please the Court.

As this — been made clear here already, this case is unlike either the Eaton case or the — or Frank against Maryland for that matter.

And it does involve a routine inspection which was required of the health inspector by an ordinance of the City and County of San Francisco.

And I have to disagree with Mr. Krause in saying that this is a case about a health inspector.

A health inspector was involved but what this case is about is not his rights.

The case is about the right of the people of the City and County of San Francisco to enact the ordinance that they did enact here.

Until an effect divests themselves of the absolute right of property to a minor degree in order to accommodate what they felt, not what I feel, but what they felt was the primary interest of protecting the health and safety of the people of that city.

Now, the same thing has been done in the area of water pollution and the area of air pollution.

The last decade has seen a real awakening.

There interest of concern or perhaps conscience but this entire nation in respect of the cities and the conditions in housing, and in all of the environment that we live in.

And this is a — this is in San Francisco was only one of several hundred inspection codes and only one of several hundred programs financed locally and by the State Governments, and by the Federal Government for that matter, in order to bring about a better city, in order to bring about better housing, in order to prevent blight, in order to bring about a tolerable place for people to live, and that is what those case is about.

Earl Warren:

Mr. Harris, —

Albert W. Harris, Jr.:

Now —

Earl Warren:

May I ask you about this — the purpose of this inspection.

But where — what does the record show on that and where will we find what the real purpose of the inspection was?

Albert W. Harris, Jr.:

Your Honor that was set forth in the — during the proceedings in the Superior Court by the district attorney who was representing the respondent and —

Earl Warren:

In testimony?

Albert W. Harris, Jr.:

He made it clear.

Earl Warren:

In testimony?

Albert W. Harris, Jr.:

No.

There was no evidence taken Your Honor in the Superior Court proceedings.

Now that was because the petition for a writ of prohibition that was filed on the Superior Court attacked the ordinance as invalid and unconstitutional on its face and that is a valid ground under California law to attack the jurisdiction of the criminal court, it was the Municipal Court.

Consequently, no evidence was taken during the hearing in the Superior Court.

And as is common, there was a great deal of colloquy between the attorneys and between the — and with the trial judge.

But it was made clear that this inspection was pursuant to a San Francisco ordinance that requires an inspection of apartment houses and hotels annually, every year.

And that the inspection was for the purpose of determining compliance with the permit of occupancy that had been issued to the owner of the apartment house in order to operate the place and in conjunction with the licensing of that apartment house.

And that determination was adopted by the District Court of Appeal in reviewing the case on appeal and that is the Court of a last resort as far as this case is concerned.

Earl Warren:

Where is that statement of the district attorney at the (Voice Overlap) —

Albert W. Harris, Jr.:

Well, that — in that —

Earl Warren:

(Inaudible)

Albert W. Harris, Jr.:

— pages 36 and 37 of the record, Your Honor.

Earl Warren:

36 and 37, thank you.

Albert W. Harris, Jr.:

Now, there has been no contention here that there was any failure to comply with the ordinance.

I would like to touch just for a moment on the suggestion that perhaps the right of entry authorized by Section 503 here might be utilized by police officers in the enforcement of the state law relating to criminal conduct.

Now that has never been suggested by anyone.

The statute or the ordinance itself is limited to duties authorized or imposed upon a city employee by the municipal code.

This appears as a part of the housing code.

And I think it would be a very remarkable construction of that ordinance to say that it applies to anything that what it purports to inspections in the course of enforcement of the housing code by health inspectors as required by law.

Now, this inspection is not at the whim of — as I pointed out of a health inspector.

He’s obeying a law.

He is not entering in violation of law.

He is not taking a shortcut to law enforcement.

He is not trying to get in there in order to do something else.

He is abiding by what the people have directed him to do and that is to inspect these apartment houses annually.

William J. Brennan, Jr.:

Well, how will I notice that Mr. Krause stated that this particular inspection was to conduct an annual routine inspection of the premises indicating that it is done once a year but I see that the Section says, at least once a year and has often thereafter is maybe deem necessary?

Albert W. Harris, Jr.:

That’s correct Your Honor.

That is what the Section says.

William J. Brennan, Jr.:

So that it actually, they maybe — I suppose almost everyday.

They were thought to be —

Albert W. Harris, Jr.:

Well I think this, now bear in mind that this is where hotels and apartment houses.

William J. Brennan, Jr.:

Yes.

Albert W. Harris, Jr.:

And I think if there is a health problem in a hotel, you’ll find them in there just about everyday till it’s fixed.

William J. Brennan, Jr.:

But in any event as regard to this building the record is clear that this was just a single inspection, annual, one and after — not more a often —

Albert W. Harris, Jr.:

I don’t know.

I think that’s true Your Honor.

Now, they came back three times —

William J. Brennan, Jr.:

But I was saying —

Albert W. Harris, Jr.:

— because they couldn’t get in.

William J. Brennan, Jr.:

Yes.

Yes, for the same single inspection, was it?

Albert W. Harris, Jr.:

The same single inspection.

I believe that’s a fair statement Justice Brennan.

Earl Warren:

Mr. Harris, may I ask you if it is actually the practice of the City and County of the San Francisco to inspect every apartment in the City of San Francisco every year?

Albert W. Harris, Jr.:

No, I don’t think that is the practice Your Honor.

Earl Warren:

Well, then I’d like to ask you this concerning this situation because Mr. Krause said that, so that here we have an inspector going to the premises to conduct an inspection of the premises pursuant to Section 86 in the municipal code part 3.

At this point, he is unaware that there is an existing violation, in violation of an existing permit.

Now, if they do not do this as a regular thing and inspect all of the apartments in the city and if he had no reason to believe that there was any violation of any kind here what was he there for?

Albert W. Harris, Jr.:

Well, Your Honor, I think I misunderstood your original question.

Earl Warren:

Very well.

Albert W. Harris, Jr.:

There are thousands and thousands of apartment units —

Earl Warren:

But —

Albert W. Harris, Jr.:

— in San Francisco.

Earl Warren:

But what —

Albert W. Harris, Jr.:

I meant to say that it is not my understanding that the health inspectors attempt to inspect every single apartment in that city every year.

I think that would be far beyond the —

Earl Warren:

Well, (Voice Overlap) —

Albert W. Harris, Jr.:

— physical capacity available to them.

Earl Warren:

I do too.

Albert W. Harris, Jr.:

Now, whether they attempt to go into each apartment house, bear in mind that this apartment house had 16 apartments on the second and third floors.

They went to the bottom floor which was the store in essence and was restricted to commercial use under the permit of occupancy.

They wanted to go into the back because the manager of the apartment house had said that Mr. Camara is living in the back of the store.

They never got any further.

Now, whether they would have gone into every apartment there is just something I have no knowledge —

Earl Warren:

You think —

Albert W. Harris, Jr.:

Oh, but I’m sure they don’t try to do that.

Byron R. White:

Do you think they’d try to get into every apartment house though whether they do inspect (Voice Overlap) —

Albert W. Harris, Jr.:

I think they — I’m certain that they do try to —

Byron R. White:

Either as a figure (Voice Overlap) —

Albert W. Harris, Jr.:

— go to each house.

Byron R. White:

Figure in one of the amicus briefs is that — that the Los Angeles Health Department made 46,000 inspections in apartments in one year.

Albert W. Harris, Jr.:

Well —

Byron R. White:

In which — they’ve got people — at least to go in every apartment house.

Albert W. Harris, Jr.:

In San Francisco when — as we point out in our brief, there are 50,000 inspection trips directed to 16,000 apartment buildings in the fiscal year of 1964.

Now that’s not Los Angeles but it’s — I would say they try to get to every apartment.

Now, there’s some room for judgment.

I suppose with a brand new apartment house you — everything looks alright, you might decide your time could be spent better elsewhere.

Byron R. White:

I just think —

Albert W. Harris, Jr.:

None of this was developed in the record as far as the frequency of their inspections.

Potter Stewart:

There are inspections of brand new buildings routinely —

Albert W. Harris, Jr.:

Oh, very, very intensive but —

Potter Stewart:

Yes.

Albert W. Harris, Jr.:

— once the — it’s been clear than the only equipment is improperly, I — this is my own suggestion that perhaps you might want to look into the Fillmore District or Hunters Point rather than waste time going back.

But they have the authority to go annually and in fact, they’ve been directed to by the people.

Earl Warren:

But Mr. Harris, may I ask this, was this living quarters of the petitioner a part of the apartment house?

Was he renting that from the apartment house owner or was this a business premise separated from the apartment house where the man was utilizing it as a living quarters on his own?

Albert W. Harris, Jr.:

Well, as I understand it Mr. Chief Justice, the — he was a tenant of the entire ground floor which had no apartment as such Your Honor.

Earl Warren:

It had no connection with the apartment house?

Albert W. Harris, Jr.:

Well, it was the ground floor and then the second and third floors were individual apartments, eight on each floor.

Earl Warren:

Yes, yes.

Albert W. Harris, Jr.:

The ground floor was restricted to commercial use by the permit of occupancy.

Earl Warren:

Yes.

Albert W. Harris, Jr.:

What facilities Mr. Camara — now, Mr. Camara had a store properly at the front of the building.

Earl Warren:

Yes.

Albert W. Harris, Jr.:

What facilities he had in the back for living or whether he lived there is not disclosed by the record except by his own statement that he did in fact lived there.

Earl Warren:

Yes, yes.

Albert W. Harris, Jr.:

Now under our housing code, that would — that in itself is not a basis for any abatement proceedings as to Mr. Camara or anything else.

Improper occupancy becomes a public nuisance only when it rises to the level of becoming a hazard to the public or to the occupants of the apartment house.

And it would be absolutely essential for the inspector to go in there, take a look at the building that’s all and the interior of the structure where — for example, he might have a stove in there that was improperly vented or something like that.

And then if the director of public health, this goes back to the bureaucratic arrangements within the department decides that this is a public nuisance that he may initiate abatement proceedings.

Abe Fortas:

I thought this was a — there’s confusion here, in the briefs too as I read them.

I thought that the — that there was a violation here because the terms of the license restricted the ground floor to commercial purposes.

And the inspector went into the ground floor and Mr. Camara said, “Yes, that’s true.

I live in the back of this which is a violation”.

I didn’t know that there was anything beyond that involved in this case.

Now, you’re telling us that there was a reason for the inspector to go onto the back room which was to find our whether there were some other violations?

Albert W. Harris, Jr.:

Well, yes sire — no Your Honor.

But to see what the nature of this violation was.

Abe Fortas:

There was a violation?

Albert W. Harris, Jr.:

Well, but the violation under the ordinances in San Francisco, you cannot let apartments without affirmative occupancy and that limits the manner in which you have let them.

Abe Fortas:

Now, what is the —

Albert W. Harris, Jr.:

But if that — that is a matter for the owner of the apartment house.

There’s no doubt he was in violation.

Abe Fortas:

Well, I don’t see any — maybe I missed it but I don’t remember any reference in your brief to the health and — provision or whatever other provision it is you refer us to the Section 86 part 3 requiring an inspection at least once a year from apartment houses for the purposes of the occupancy permit.

Now, are you telling us that there is some other substantive provision that’s involved in this case?

Albert W. Harris, Jr.:

There certainly is Your Honor.

Abe Fortas:

Now, what is that?

Albert W. Harris, Jr.:

It certainly is.

Albert W. Harris, Jr.:

And I’d refer you to page 84 of the record in this case which contains —

Abe Fortas:

Number one, is there anything — is there a reference in your brief something else?

Albert W. Harris, Jr.:

Well, certainly it should be a reference to that Section.

Abe Fortas:

As I read your brief, I thought that all you were saying was that the reason that you were seeking the inspection right here was this occupancy —

Potter Stewart:

First Section 101 —

Albert W. Harris, Jr.:

Well —

Potter Stewart:

— quoted on page 41 of your brief?

Albert W. Harris, Jr.:

Yes, that’s correct Your Honor.

Its —

Potter Stewart:

Section 101 of the code.

Albert W. Harris, Jr.:

Well — no, that is the — that’s the — that is the declaration of policy.

The —

Abe Fortas:

That’s clear from your (Voice Overlap) —

Albert W. Harris, Jr.:

— your finding that —

Abe Fortas:

— brief — it’s clear from your brief that the purposes of the occupancy permit, your ordinances do provide for routine inspection.

And I would want to see if there were some other purpose of the inspection here.

I would like to see exactly what your code requires on —

Albert W. Harris, Jr.:

Well —

Abe Fortas:

— whether that — and I’d like to know whether Mr. Camara was told that the inspector wants to get in this — for some purpose other than the occupancy permit inspection.

Albert W. Harris, Jr.:

Your Honor, improper occupancy which is using a place to live in that is not designed for that purpose specifically provided as one of the grounds upon which a building may be a substandard building.

Now, it may not be a substandard building as well.

That is up to the Director of the Department of Public Health.

And I allude to the Sections that we have quoted of the Ordinance of — at page 84 and page 88 of the record.

And it’s only upon his determination that this is substandard building.

That’s what he’s concerned about.

This is the Health Department, that — if they are concerned with the sanitation, whether this is a substandard building then they are going to act.

Now as far as the — whether or not this was a violation of the permit of occupancy, it seems clear that it was, but that does not make it a substandard building.

That does not make it a public nuisance necessarily.

William J. Brennan, Jr.:

Well Mr. Harris, I don’t know if this — I gather Mr. (Inaudible) was seeking to releave for all this, wasn’t it at page 37?

Albert W. Harris, Jr.:

That’s correct Your Honor.

Albert W. Harris, Jr.:

He was.

William J. Brennan, Jr.:

And he says this is a reason of the ordinance, Section 86 and that’s the one annual inspection, isn’t it?

Albert W. Harris, Jr.:

That’s correct,

William J. Brennan, Jr.:

And I am sure the effect of this is apparent to the Court where the importance of the city inspectors know how many people are occupying the building apartment because they won’t have all the power in conjunction with (Inaudible).

So it was in pursuant to this ordinance that they want (Inaudible).

Is there any indication that there was any other reason?

Albert W. Harris, Jr.:

No.

There’s no —

Abe Fortas:

I assume there is a —

Albert W. Harris, Jr.:

There is no other indication Your Honor.

They went there under the ordinance requiring an annual inspection of hotels and apartment houses.

William J. Brennan, Jr.:

That’s Mr. Justice Fortas question.

That’s what bothers (Voice Overlap) —

Albert W. Harris, Jr.:

Well maybe I’ve — I haven’t —

William J. Brennan, Jr.:

— was the only reason they went?

Albert W. Harris, Jr.:

That’s — is the reason that they went.

There’s no question about that.

Abe Fortas:

And, well I would —

William J. Brennan, Jr.:

Our we concerned with the fact that there may indeed has been other violations of some other —

Albert W. Harris, Jr.:

I’m not saying there were any other violations.

All I was — what I am saying is this that the inspection — the people of San Francisco have said you go in once a year to apartment houses and hotels.

Abe Fortas:

For what purpose?

Albert W. Harris, Jr.:

Now, for what purpose, do exercise or perform their duties and their duties are to determine whether these —

Abe Fortas:

No, no, no, no.

Albert W. Harris, Jr.:

— are substandard buildings.

Abe Fortas:

No.

Let’s be a little careful if you don’t mind.

There — the only provision that I know of that I have seen in your brief providing for once a year inspection relates to the permit of occupancy.

Now, you’re —

Albert W. Harris, Jr.:

Now, it relates to hotels and apartments.

Abe Fortas:

And if we have to — are you — the questions going through my mind is whether you’re saying that even if the inspector is obeying as to the reason for asking for access he still has a right of access without obtaining a warrant or anything else or let me put it another way.

It’s possible to defend the right of access here on the grounds that it is routine pursuant to a plan that is set forth in the city ordinances indistinct from the — Mr. Justice Harlan was making.

It’s also possible to argue that it’s defensible even if it is sort of (Inaudible) or haphazard without being pursuant to a plan that’s set forth in the ordinances.

Now, the purpose of the inspection that is being made is uncertain or ambiguous or sort of a roving commission.

And I think that may have some bearing upon the constitutional question that we have under — they’re wrong about it.

But the —

Albert W. Harris, Jr.:

No —

Abe Fortas:

— the specific questions —

Albert W. Harris, Jr.:

Yes, that is —

Abe Fortas:

— that I am putting you now is this, its a matter of fact in your brief as I read it, there is an attempt to defend this particular inspection only as I read it on the grounds that it was part of an annual inspection provided by ordinance with purposes of this kinds of permit of occupancy.

Now —

Albert W. Harris, Jr.:

It’s correct Your Honor.

Abe Fortas:

— if there is anything — if there was any other purpose to be served, I’d like to know what it is, number one.

And number two, I’d like to know whether the petitioner here, Mr. Camara was advised of the other purpose?

Albert W. Harris, Jr.:

Well, it’s clear from the record Your Honor and we’ve taken the position and I don’t mean by what I have said here to — in anyway affect that position that this inspection was attempted pursuant to the ordinance calling for an annual inspection of apartments and hotels in the City of San Francisco.

And that is the reason the inspection commenced.

That’s the reason they went to 225 Jones Street in San Francisco.

Byron R. White:

But in the course to —

Albert W. Harris, Jr.:

Now —

Byron R. White:

— making that inspection they might have various concerns, isn’t that — is that what you’re saying?

Albert W. Harris, Jr.:

That is quite true Your Honor.

Byron R. White:

Yes.

Albert W. Harris, Jr.:

They would have countless concerns.

The housing code covering as it does a multitude of matters relating to sanitation and to whether or not this is a substandard building.

But the reason they went to this particular apartment house was under the duty imposed upon them by the ordinance to make an annual inspection.

William J. Brennan, Jr.:

Do you know whether — when they make those (Inaudible) or a checklist, inspected suppose to employ that if it looks fire hazard, overcrowding, health hazard, (Inaudible)?

Albert W. Harris, Jr.:

Well, the record does not touch on that Your Honor and I can’t say, as a practical whether that’s true or not.

William J. Brennan, Jr.:

Why have you taken this (Inaudible)?

Albert W. Harris, Jr.:

I would think it certainly would be.

Earl Warren:

Mr. Harris, one of the things that bothers some of us and me at least is this.

Earl Warren:

I don’t think that everybody or any great percentage of the people are going to demand the — a search warrant for a thing of this kind but in this day and age, and so many things are happening to women for instance.

If a stranger comes to her door and say — your — when her husband is away, she is there all by herself and he says, I want to come into your house to make an inspection.

Is there anything wrong for her to say, “Well, I want to see your authority to inspect my home before I let you in”.

And then is there anything wrong in having the inspector under those circumstances, go to the magistrate and get the — get an — make an affidavit and get an inspection.

It would be much easier than to have a man come back three times as this man had did and each time without a warrant.

Now, those things when you’re speaking of the health and the safety of your community, I think bear a little more heavily on public safety even in the — than some of this routine inspections that you’re talking about.

So, isn’t there a real question of the right of privacy in the home here which a family would have a right to protect and particularly a woman and in the day time, a man is rarely there.

Albert W. Harris, Jr.:

If I could take that up in both of the hardship Mr. Chief Justice —

Earl Warren:

Yes, in your own way.

Albert W. Harris, Jr.:

The — I think the — what Your Honor has suggested would be a very prudent course for a lady who is confronted by a man who says he wants to make an inspection.

And the ordinance requires that he show his credentials when he comes up to the door to make an inspection.

Earl Warren:

But anybody can get a —

Albert W. Harris, Jr.:

Now —

Earl Warren:

Anybody can get a —

Albert W. Harris, Jr.:

Certainly that could happen and I think a lady might be very prudent not to rely simply on those credentials.

She could —

Hugo L. Black:

Don’t they have a picture (Voice Overlap)?

Albert W. Harris, Jr.:

Well, it probably.

I’ve never seen their — theirs but I presume that they do Your Honor.

They may have a picture of course that could be forged as well.

But I would think —

Hugo L. Black:

Yes, (Inaudible) the picture.

Albert W. Harris, Jr.:

That’s true.

I would think this that under those circumstances or let’s say even apart from any fears, suppose she’s got the children in the house and is in a state of confusion and she doesn’t want to be bothered by somebody coming in at that time.

That it seems to me of — a reasonable attitude on her part.

Now, this ordinance requires — or only requires you to admit an inspector at a reasonable time.

We haven’t had cases that have construed that language because there’s — this is the only known opposition to the ordinance but I think the pattern is very clear here and it is this that if this is a — this is even an inconvenient time that you’d rather not have someone come in.

You might have some guests.

They’re willing to come back in a couple of days.

They’re willing to come back in a couple of weeks.

Albert W. Harris, Jr.:

They came back here three times and each time were flatly denied entrance.

There was even a hearing scheduled in the District Attorney’s Office which is a totally — with an informal kind of procedure in California.

So, I think that it’s perfectly proper for a lady to protect herself.

If she has doubts, she can call up the Department of Public Health and find out if this is legitimate.

Find out what’s going on.

Now, I don’t think it’s any answer to that problem to say that the people should establish a search warrant procedure.

And I think in some of the questions here one of the main differences was brought out.

On a search warrant, you show probable cause to believe that contraband, to believe that the weapons of crime, to believe that smuggled goods or something are in a particular premises, a particular apartment, a particular home.

And the magistrate can weigh that and decide whether or not you should be allowed to enter into that home and search and reduce those things to your possession.

These inspections and particularly the — this are the annual inspection that we’ve been discussing and the planned area inspections where several blocks are carved out for inspection every — so often.

The whole purpose of this is to determine what the situation is in respect to those buildings, not whether somebody has something tucked away in a trunk or a chest some place but to find out what’s going on in there.

And I don’t think a magi — I think the magistrate would be reduced to the position of either rubber stamping whatever is presented to him of — to say so with the Department of Public Health that they want to make an inspection of this 10-block area.

Either that or he is going to turn himself into the Department of Public Health and the Planning Director and decide should we go to the Fillmore District.

Should we make inspections in the Mission District?

Should we go out in Hunters Point and make inspections in this area?

And I don’t think our magistrates are frankly equipped for that or that there is any requirement of law that they do.

That’s certainly no requirement of the Constitution.

The magnitude of an effective inspection program is such that I think any requirement of a search warrant would be abs — would in effect mean you couldn’t conduct the program.

We have 145,000 inspections in 1964 by the Department of Public Works, as I said before, 50,000 inspection trips to 16,000 buildings in the fiscal year of 1964 and 14,500 dwelling units inspected under the urban renewal program.

Now, there aren’t enough magistrates in the United States to issue warrants on affidavits and examination of those of that kind of volume.

But the main thing is that the Constitution does not require it.

Your Honor — Your Honors held in Frank against Maryland that the Constitution did not require a search warrant.

There’s been no abuse of that power by the cities of this — in this land where the cases or the instances of any abuse.

Earl Warren:

How do we know?

How do we know there’s hasn’t been?

Albert W. Harris, Jr.:

Your Honor, I have faith that the American Civil Liberties Union would be citing them one after another had there been any abuses?

There have never been any in San Francisco that I know of nor in Seattle.

And I think that the program has worked.

It’s worked since the beginning of this nation.

It’s been accepted by the Courts, by judges, by legislators, by the people of this country, and I have yet to hear one good reason, why the system should be changed.

Albert W. Harris, Jr.:

The only thing I’ve heard is that there may have been a misreading of the — of some of the cases.

Well, I don’t think there was but even if there were that is not a good reason to do what I think this Court would be doing and that is taking a step backward when a step forward should be taken.

When the need for these programs is more apparent now than it was back in 1959.

It’s clear there are no abuses, none here at all.

Why in the world impose a search warrant procedure that all of the judges, legislators, people, prosecutors, everyone of it — since this nation was formed never deem necessary.

Byron R. White:

What’s your remedy now (Inaudible)?

Albert W. Harris, Jr.:

Our remedy is to charge him in a warrant — a complaint Your Honor.

Byron R. White:

And (Inaudible) somebody to — why wouldn’t we just inspect the — go to the magistrate for a warrant to search, that it is for (Inaudible).

Albert W. Harris, Jr.:

Well —

Byron R. White:

Could you tell us the —

Albert W. Harris, Jr.:

I think the fact is that there are not very many of these.

When it’s made clear to him that the law requires that he give up his own absolute right to the close that door on anyone.

Byron R. White:

Do you think its criminal federally and the claim (Inaudible) the reasons before they’re made, just duly do this?

Albert W. Harris, Jr.:

No, I don’t think that’s it Your Honor.

I think the basic reason is that people are reasonable.

They understand that people had lived down the hall or depended on their conditions.

Byron R. White:

Is that the really a (Inaudible)?

Albert W. Harris, Jr.:

Well, it’s going to —

Byron R. White:

If people are going to let the inspectors (Inaudible) —

Albert W. Harris, Jr.:

No, I — the fact is that we found about 15% in San Francisco in fire inspections who didn’t let inspectors in voluntarily.

When the Court announces that it is our constitutional right which it is not now, —

Byron R. White:

But yes (Voice Overlap) —

Albert W. Harris, Jr.:

— the Court announces that —

Byron R. White:

— the Court also said, however, maybe your constitutional right to require a warrant but would the — inspector can get the warrant, and what would it be to such a (Inaudible).

I would think it would be (Inaudible) they will get a warrant.

They may — if they demand that he do it just to prove that he is who he is?

Albert W. Harris, Jr.:

Well, no.

Now, that wouldn’t be of any particular proof Mr. Justice White but it seems to me that this is into an area of legislature decisions as to what would be the best course of action and if — as to what may happen and what we’re concern with is the Constitution here?

Earl Warren:

Well, let’s deal with the question I asked you a little awhile ago that for a moment there’s a woman in her home alone with her children and a man comes to her door and says, “I will come in and inspect your house.

I’m a Department House Inspector”.

Earl Warren:

And she just feels in view of the conditions in the community and what’s happening to the great many other housewives in the community that she’s afraid for both of her children and herself to let a person like — get in and she said — says to him, “I won’t let you come in unless you have a search warrant to do — perform this job”.

And what do you going to do with that woman now?

You’re going to put her in jail?

Albert W. Harris, Jr.:

Well, I hope not Your Honor.

Earl Warren:

Well, (Voice Overlap) —

Albert W. Harris, Jr.:

I hope not but she has no right —

Earl Warren:

But if you have a right to insist on this man coming in to her house and there are just thousands and thousands of women in that situation in our state, what do you going to do about it?

You’re going to say, ”Well, a woman can say that she won’t let a person in but a man can?”

Albert W. Harris, Jr.:

No, Your Honor.

First of all to my knowledge, there has never been a criminal prosecution, a conviction and sentence of anyone under this ordinance that it — this doesn’t work.

It doesn’t work that way.

She has to be convinced that she has no right to search a warrant does not apply.

That’s what this Court has held and someone has to explain it to her.

And that the people that live near have rights as well as she and every reasonable effort that she wants to make to make sure this is the right person, to make sure her husband is there, to make sure of any reasonable conditions that can be taken cared of Your Honor and I’m sure it is taken cared of.

Earl Warren:

You mean by repetitive business going back, —

Albert W. Harris, Jr.:

If she could —

Earl Warren:

— back and back and back.

Albert W. Harris, Jr.:

She can say, “Come in in another week.”

Earl Warren:

Well, why wouldn’t it be much easier to let — to have him get this authorization to make the inspection go and so on said lady, there is the — here’s the warrant that the judge issued and the — its much easier than — even in this case for the man who went back three times just to have him — tell him no, I won’t let you go in.

I’ll admit that I live there but I won’t let you go in my house.

Albert W. Harris, Jr.:

Well, what — Your Honor, what standards would the magistrate use under that circumstance as to whether or not he should issue a search warrant —

Earl Warren:

Well —

Albert W. Harris, Jr.:

What facts would he ask for?

Earl Warren:

Well, I am — for myself, I would suggest that if you have a health ordinance that calls for annual inspection for apartment houses and it’s his duty to go to this apartment house.

And a man or woman won’t let him in, all he has to do is go back and get a warrant to admit him.

And when he has that, he has the power of the law behind him, and if they don’t obey that then we’ve got an entirely different situation.

I —

Albert W. Harris, Jr.:

I think Your Honor —

Earl Warren:

I think that most people would do that — would let people in anyway if there’s no danger of any — anything wrong happening.

And he’s not going to change her character and make them all demand search warrants, do you think so?

Albert W. Harris, Jr.:

Well, you’d never know for one thing any more of that search warrant were not a forgery than — for the people whether that’s suspicious.

But I think the basic thing is this, the people could provide for that procedure if they wish but they have not provided for that.

That what Your Honor has mentioned is not a search warrant, as I understand a search warrant at all.

Earl Warren:

No, it’s an administrative warrant.

Albert W. Harris, Jr.:

It would be a different thing and the Fourth Amendment does not have anything to do with that.

I say that is the legislative decision.

Thank you.