Chambers v. Maroney

PETITIONER:Chambers
RESPONDENT:Maroney
LOCATION:Symphony Cinema, Boston, Massachusetts

DOCKET NO.: 830
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 399 US 42 (1970)
ARGUED: Apr 27, 1970
DECIDED: Jun 22, 1970

Facts of the case

Question

Audio Transcription for Oral Argument – April 27, 1970 in Chambers v. Maroney

Warren E. Burger:

We’ll hear argument in number 830, Chambers against Maroney.

Mr. Grogan, you may proceed whenever you’re ready.

Vincent J. Grogan:

Mr. Chief Justice and may it please the Court.

This kernel matter is before the Court on write of certiorari to the Court of appeals for the Third Circuit.

Constitutional questions presented are whether petitioner was denied effective assistance of counsel where he met his lawyer on the hallway on the way to the courtroom for trial on serious criminal charges.

It also involves the constitutional question of whether a warrantless search of an automobile in which the petitioner was a passenger which was made while he was in custody in a police station after the car had been moved from the scene of arrest to the police station and where there have been two previous searches of the same automobile.

It also involves the question of harmless error in connection with the admission into evidence of dumdum bullets which were illegally seized and then used to trial to connect petitioner with weapons that were found in the warrantless search of the car and also used to describe the severity of impact that could be made by such bullets two petitioner judgment.

The statement of — the case in our brief is extensive. I’ll try to summarize it more briefly for the Court.

It opens with the statement within the first week of September 1963, petitioner and three co-defendants were tried on fourth criminal charges.

I find now since the time of preparation in my brief and I’ve advised my opponent Ms. Los that the record of this trial has become available to me and that trial did not involve four criminal charges but rather two.

It appears that the indictment that was presented to the court and jury in that case involved solely the alleged robbery of the service station on May 28, 1963, and for reasons it will become apparent this is very important to our case.

I’d like to offer this to the Court at this time.

At the trial in early September 1963, petitioner was represented by a member of the Legal Aid Society of Pittsburgh.

The trial ended in a mistrial and withdrawal of a juror for reasons that are not explained in this record.

Later in September, on September 27, 1963 —

Potter Stewart:

Was that the trial of several co-defendants?

The first trial?

Vincent J. Grogan:

Yes, Your Honor all the defendants or four defendants were for each of those cases.

Petitioner was called again to trial this time he was again represented by member of Legal Aid Society of Pittsburgh.

It happened to be another lawyer not the one who represented him at the first trial.

He met his lawyer in the hallway on the way to the courtroom, there is no evidence in the record as to what discussions they were before that if any with his lawyer, they proceeded to trial —

Byron R. White:

What’s the practice in the Pittsburgh when the legal aid group represents the defendant?

Is the — there was an appointment here, wasn’t it?

Was there an appointment or did he just —

Vincent J. Grogan:

Your Honor, the record isn’t clear in that regard whether it was a specific appointment or not.

In other words, I cannot tell you whether there was an order of court entering an appearance or directing the Legal Aid Society to appear.

In further answer to your question as of now —

Byron R. White:

Well then, can you tell us or can’t you when this gentleman that he met in the hallway first knew he was going to represent this man?

Vincent J. Grogan:

He first knew at that morning, Your Honor, apparently.

Byron R. White:

Apparently?

Vincent J. Grogan:

I say that —

Byron R. White:

Does the record show that?

Vincent J. Grogan:

No, it does not.

Byron R. White:

All you know is that he met him in the hallway?

Vincent J. Grogan:

That’s all we know and we know that because of the statements made by petitioner at the — court.

Byron R. White:

Or the Legal Aid Society or whatever the name of it is, know that they are going rep — somebody from that chapter is going to represent them long ever since the first trial?

Vincent J. Grogan:

Yes, I believe they could say that fairly, Your Honor.

Byron R. White:

And does the record show whether anybody have been doing any work on the case until the day of the second trial?

Vincent J. Grogan:

No, it does not.

Byron R. White:

You’re just assuming that they were giving at no attention in the meantime?

Vincent J. Grogan:

Your Honor, the record does disclose that and that’s all that we have to deal with at the present time, the —

Warren E. Burger:

Well, we have another factor don’t we?

Ordinary human experience in the practice and the habits of lawyers that two lawyers associated in the same organization whether be a law firm or legal aid society would reasonably be in communication with each other about a case when one is transferring it to another and they build up the file along and there’s some things, some assumptions that can demand about that on the basis of experience?

Vincent J. Grogan:

Your Honor, I don’t know whether those assumptions are warranted in the circumstances of this case.

Byron R. White:

Do you know that there are no warrant?

Vincent J. Grogan:

If I may speak outside the record, I believe so.

I have obtained copies of the Legal Aid Society, files in connection with the case and I believe that which show very, very little to and assist the lawyer in a second trial of the same charges.

Additionally, we have the problem here that we have been — I have been operating under the assumption that the first trial involved all four counts where as we find now that it only involves two counts for one of the two robberies that he was charged with and tried in September.

Byron R. White:

But do you have an evidentiary hearing on this in lieu of the —

Vincent J. Grogan:

There was an evidentiary hearing held in the state court, Your Honor, that it was very brief.

Byron R. White:

Did you represent him?

Vincent J. Grogan:

No, I did not.

I was pointed by this Court to represent petitioner.

Byron R. White:

But there’s been a habeas corpus petition hearing on the question of advocacy of counsel, right?

Vincent J. Grogan:

Not in the federal system, Your Honor, and also its not a full hearing.

Part of our contention is that under Townsend against Sain there was not an adequate fact-finding hearing by the state court that the material facts are not disclosed in this record.

The record of the habeas corpus hearing appears in the appendix and it shows that petitioner took the stand he was ask when he met his counsel, he testified that he met him in the hallway on the way to the courtroom.

He was not asked any questions in connection with what other preparation there was whether he discussed it with him or not.

The only other thing touching on the fact was that petitioner said that at some point in time between the time when he was incarcerated in the first trial that a member of the Legal Aid Society staff apparently came to the precinct to talk to him.

Byron R. White:

You do plan to spent some time on the search and seizure?

Vincent J. Grogan:

Yes.

Yes I do, Your Honor.

The trial testimony disclosed that on May 13, 1963.

Two Negroes walked into a service station and demanded all of the money that the service station operator had.

One of them displayed a pistol, a nickel-plated pistol and they received from the service station operator $66.00 in cash, some personal cards, and his wallet.

At the trial, the service station operator identified petitioner as the person who was holding the gun.

He made an in-court identification of petitioner and identified these items as his personal property, the cards and also the wallet.

Testimony further disclosed that around 11:30 o’clock p.m. on May the 20th, two teenagers saw a car, a light blue station wagon parked in a parking lot near the teenage girl’s home, in it were seated four Negro gentlemen.

They then testified that they saw this station wagon circled the block around the teenage girl’s residence and also a Gulf service station.

Subsequently, about 15 minutes later, someone ran from the service station exclaiming that there had been a robbery.

They then saw within a few seconds this light blue station wagon leave the parking lot at a high rate of speed.

The record shows that service station was not visible from the parking area, there is nothing in the record to indicate that at anytime, the — anyone ran from the service station to the automobile, got out of the automobile or in any other fashion connected at with the robbery.

The service station attendant testified that two Negro gentlemen came into the service station both of them displayed pistols and demanded everything that they had.

One of them, one is wearing a green sweater, the other was wearing a trench coat.

He took the change that he had and put it in his right hand glove, the service station attendant’s glove, and gave it to the two robbers.

As police were summoned they came.

They interviewed the teenagers and the service station attendant and a description of the car and the four occupants were put — or was put on the police radio.

Approximately, 45 minutes to an hour later, two neighboring or two police officers in the neighboring community saw a vehicle that answer the description that have been put on the radio and that is it was a light blue compact station wagon occupied by four Negroes.

At that time, the station wagon was being operated back toward the scene of the crime of that evening or the previous evening.

The police officers pulled the vehicle over on a side street, now the Commonwealth has argued that there may be inferences here leading or could be inferred that the gentlemen were attempting to elude the police at the time but I do no think that that’s a fair inference from the record.

But in any event they were pulled over in the parking lot.

They got out of the station wagon and the police officers first looked at that point for weapons.

Within moments, other police officers from the community where the robbery had taken place came to the scene.

At that time, those police officers look through the station wagon by means of searchlight.

Petitioner and the owner of the vehicle were then taken to the police station in the community where the robbery had occurred.

They were again searched, at that time moment or that moment, money was removed from their purses.

The police officers went outside and made a search of a vehicle.

The chief of police or the lieutenant who was in-charge testified that they went through everything to indicate the depth of the search.

They went back inside after finding nothing again questioned petitioner and the Lawson, one of the other co-defendants went back out again.

And in this third search of the car, one of the officers opened up a bin in the heater and from this bin he removed two pistols, the cards taken in the robbery of May the 13th and a personal wallet of the attendant of that earlier event.

Potter Stewart:

Does the record show why the officers discontinued the search and went into the station house and then went back out and continued the search?

Vincent J. Grogan:

They don’t say its explicitly, Your Honor, what they do assert is that they went through everything and found nothing and it appears as if what they did then was to go back in and further interrogate or attempt to interrogate to disclose information.

Potter Stewart:

The record doesn’t show what the subject of that interrogation was, does it?

Vincent J. Grogan:

No, it does not.

Potter Stewart:

I couldn’t find anything in the appendix.

Vincent J. Grogan:

No, there’s nothing in the appendix to indicate that.

Potter Stewart:

But it’s your, of course your sister in opposition puts in terms of one continual interrupted search rather than two searches or three searches as you do and that’s a matter of how you view the facts I suppose?

Vincent J. Grogan:

The matter of continuity is a little hard to explain, Your Honor, because of the passage of time that must be on inferred from the testimony of the officers as to how the search went on.

Warren E. Burger:

Does the record suggest that this was the only matter that the officers where then engaged in or did they have other things to do?

Vincent J. Grogan:

It appears as if this was the only thing they were engaged in, Mr. Chief Justice.

Later that same morning, then the chief of police of the community obtained a search warrant and went to the homes of the four defendants and made a search.

In the homes of the three other defendants nothing was found.

He went to petitioner’s residence and there found a holster, some dumdum bullets that were matched to one of the revolvers found in the search of the car.

At the trial, petitioner’s counsel objected to the introduction of these dumdum bullets into evidence on the grounds of irrelevancy at first, this was overruled.

Then the police officer testified on the stand that the dumdum bullets matched one of the — matched the bullets taken from one of the weapons and that the effect of the dumdum bullet on the human body is to make larger holes and to cause more tissue damage.

Petitioner’s counsel again objected.

This time he objected on the grounds that the search warrant did not disclose or did not indicate what they were searching for and it did not specifically say what they were searching for.

Unfortunately, this search warrant is not available to us now.

It has been lost, it’s not a matter of this record, it apparently was lost before the state habeas corpus hearings, and so we are unable to say at the present time exactly what the search warrant did disclose except for the testimony of the police officer when he was on stand who said that the search warrant did not indicate that they were looking for bullets.

In any event, petitioner’s then counsel objection to this evidence was overruled by the court who said that his failure to file pretrial motions meant that the suppression evidence should have been heard earlier not having been heard it was overruled on those procedure grounds.

The jury returned verdicts convicting the four defendants of the crimes of May 20th and petitioner was sentenced to 6 to 15 years imprisonment.

About two years after his conviction, he filed a petition for writ of habeas corpus in the state court and evidentiary hearing was held, and I’ve summarized for you what was disclosed at that time that he met his counsel on the way to the courtroom for the trial.

There is no extensive discussion as to what preparation if any there was, there was no exploration as to what defenses were available merely those statements.

Warren E. Burger:

Do you point anything in the record that would show that there was any affect of assistance where there was any dereliction of duty or failure to do some things that shouldn’t have been done by the lawyer?

Vincent J. Grogan:

Your Honor, I think — Mr. Chief Justice, if I can I think the basic proposition which start with the things disclosed by the record and they would be that in the first instance the trial court in overruling the objections to the dumdum bullets on the grounds that there had not been a pretrial motion filed.

The failure of counsel to recognize the very valid argument in connection with the search of the automobile which we submit to this Court at this time, the fact that there is no evidence at all of any pretrial consultation between the lawyer and his colleagues or as a matter of fact the petitioner.

Warren E. Burger:

What does it show about the conduct of the first lawyer in the relations with the client, your client?

Vincent J. Grogan:

It doesn’t disclose anything except in this record that I now have before the Court.

It shows there that there were other objections made that were not made at the second trial for other reasons that apparently were not known to the lawyer at the second trial.

Warren E. Burger:

Were the objections which were successfully made the first trial?

Vincent J. Grogan:

Yes.

Yes, Your Honor, there are.

Warren E. Burger:

And you think they are material?

Vincent J. Grogan:

I believe they are material.

In connection with argument we submit that the late appointment of counsel for petitioner in this case were so prejudicial to whom as to warrant reversal.

This Court in getting Gideon against Wainwright held that the right to counsel when charged with a serious crime is a fundamental right essential to a fair trial.

The Court reaffirmed the principles of Powell against Alabama where the Court said that this right was not a hollow one but it meant appointment at such time and under such circumstances as to give effective aid of counsel in the preparation and trial the case.

Thurgood Marshall:

Mr. Grogan, I understand Third Circuit’s opinion was that they applied the same rule as the standards of the Fourth Circuit’s opinion had and found that it didn’t apply in this case so they did — would you admit that they applied the right standards?

Vincent J. Grogan:

No, Your Honor.

I believe initially we argue in the alternative but I believe that it’s not necessary under Powell against Alabama and Gideon and other cases decided by this Court to show specific prejudice that it’s not necessary where you have the issue of the right to counsel to show specific prejudice.

Thurgood Marshall:

I have the real problem of second guessing of trial lawyers because I don’t know about you but so far as I’m concerned, when I went back over record of the case I tried, I found considerable fault with my proceeding.

Have you found that?

Vincent J. Grogan:

Yes, Your Honor, I believe that that’s —

Thurgood Marshall:

So that’s the problem I see in this case is of second guessing in trial lawyer.

Vincent J. Grogan:

What we’re really concerned with here though Your Honor is not so much second guessing the techniques of trial but we are talking about those factors that are extrinsic to the trial itself.

In other words, appointment at such a time that he could prepare that he could do those things it will lead to affective assistance to counsel.

Thurgood Marshall:

Well, he was appointed all the way back, wasn’t he?

Vincent J. Grogan:

I don’t believe we can say that, Your Honor.

Thurgood Marshall:

Well, isn’t that the normal procedure to appoint the law you represents the legal aid for all purposes in these days until by order of court is removed?

Vincent J. Grogan:

It’s not necessarily the same lawyers.

As a matter of practice it’s not necessarily —

Thurgood Marshall:

I didn’t say with the same lawyer, you always appoint the head of legal aid group, isn’t that the way you do in Pittsburgh?

Vincent J. Grogan:

Generally speaking, yes, I believe it is, Your Honor.

Thurgood Marshall:

And then he assigned it to one of his other lawyers?

Vincent J. Grogan:

That’s correct, Your Honor.

Thurgood Marshall:

And now would you assume that’s what was done here?

Vincent J. Grogan:

Yes.

Thurgood Marshall:

And wouldn’t you assume that the lawyer was appointed before that day of the argument?

I mean the day of the trial?

Vincent J. Grogan:

The Legal Aid Society, Your Honor, may have been appointed as such but he never met the lawyer that was to represent him, his personal counsel, until the morning of trial.

Vincent J. Grogan:

This is what the record discloses.

Thurgood Marshall:

Well, no, I understood you to say you didn’t know it.

All you knew was that he said he saw him on the hallway.

He didn’t say I saw him to the first time in the hallway, did he?

Vincent J. Grogan:

I think he did, Your Honor.

Yes, I believe he did.

Thurgood Marshall:

What’s the (Inaudible) file if it’s in there?

Vincent J. Grogan:

We submit that under Powell against the Alabama that the components of the effective assistance of counsel should have been provided and those would be the opportunity, prepare the opportunity to develop the defenses, to interview witnesses, to file pretrial motions.

None of these things could have been done by petitioner here.

We can say that the Legal Aid Society may have been appointed but what we have to speak in terms of is the effect of this that the personal counsel that was furnished to him.

Byron R. White:

What about pretrial motions before the first trial?

Vincent J. Grogan:

There were none filed.

Byron R. White:

There would have been plenty of opportunity.

Vincent J. Grogan:

There would have been plenty of time to do it.

In other cases this Court has not considered the possibility of prejudice in connection with the appointment of counsel.

Glasser against United States, for example, where the Court determined that it would not inquire into the degree of prejudice sustained by one who had not had the assistance of counsel unimpaired by a conflict of interest.

Warren E. Burger:

We’ll suspend for lunch and then continue after lunch.

Vincent J. Grogan:

Thank you, Your Honor.

Warren E. Burger:

Do you want to keep the remaining time for rebuttal or do you want to continue?

Vincent J. Grogan:

I would like to continue, if you please.

Before the luncheon recess, Mr. Justice Marshall asked me a question in connection with when petitioner first met his counsel, I find it in the appendix of page 256 the testimony of the state habeas corpus hearing indicates that he first met his counsel on the morning of trial.

It states it quite clearly.

In my remaining time I’d like to point out to the Court that our argument in connection with the rule of the Third Circuit as adopted in this case is erroneous that for the reason that I — we do not believe that you must show specific prejudice in order to warrant reversal.

We point to the case as this Court has considered in connection with recidivist proceedings in connection with the pretrial procedures.

But in any event if you assume the validity of the rule adopted by the Third Circuit in this case which shifts the burden to the prosecuting authorities to show that there was not any prejudice from the lay appointment of counsel that this rule doesn’t fall to the teachings of this Court as indicated in the case of Chapman.

Because in Chapman, this Court said that before you can declare a constitutional error to be harmless the Court must expressly believe that it was harmless beyond a reasonable doubt and this rule as adopted by the Third Circuit talks in terms of overcoming this prima facie case of the ineffectiveness of counsel solely by adequate affirmative proof and we submit that adequate affirmative proof in this case is not the same thing as proof beyond a reasonable doubt.

As in this case, we have nothing but the trial record before us.

And all that trial record discloses is what was done or what may have been counsel may have been able to do within the confines of the record as stated.

There is nothing here to indicate what could have been done and was not done, what counsel may have to consider and yet did not take any action upon.

We’ve pointed out in our brief that there are instances where even if you assume the validity of the rule and ignore the dictates of Chapman, that there is specific prejudice indicated, indicated by the failure of counsel for example to forcefully argue for severance of the indictments of the two counts in connection with the two separate robberies.

Vincent J. Grogan:

There is no common scheme.

The only thing in common about them was the fact that the fruits of the robberies were found at the same time.

There are other things to consider.

In this case, the Third Circuit went beyond the rule of the Fourth Circuit and inquired into the adequacy of counsel solely by reference to the record of the trial.

Nothing was done here to develop what counsel could have done through his own testimony, this case unlike any other case that we could find counsel did not testify.

Counsel was not called to testify either in the state habeas corpus hearings or in the habeas corpus hearings in the federal district court.

The Legal Aid Society records were never introduced.

Petitioner was never examined in detail as to what defenses he may have had.

The testimony the petitioner at the place I’ve indicated in the record covers just a few pages and centers around the fact that he met his counsel on that morning.

There is no explanation for the failure of the counsel for example to file the pretrial motions as indicated by the record, this thing should be determined and can only be done so by following the dictates of Townsend against Sain and having a preliminary hearing.

Turning to the search and seizure problem we’ve argued in the brief if there was not probable cause for arrest and I believe that that argument is set forth adequately in the brief.

I would like however in the remaining time to call the Court’s attention to what this Third Circuit did in this case and connection with the application of the doctrine of Preston against United States.

If we accept your view on the necessity for a hearing what was the error in this case without reaching to these other (Inaudible)?

Vincent J. Grogan:

That’s correct, Your Honor.

In Preston, this Court decided that where a person is lawfully arrested, a warrantless search can be made for two purposes.

To find weapons to prevent the person from escaping or from injuring the apprehending officer and also to prevent the destruction of any evidence.

The Third Circuit in its cases United States against Dento placed two additional distinguishing features into that test.

And said that you can nevertheless validate a warrantless search where the search was substantially contemporaneous and there was a reasonable nexus between the offense and the search.

Neither of these matters were part of the Preston test and should not become a part of our law.

We have indicated to the Court in our brief the case of Wood against Crouse decided by the Tenth Circuit ably distinguishes Preston or ably distinguishes Dento and indicates its failure to follow the dictates of Preston.

Byron R. White:

How was this car taken to the police station?

Vincent J. Grogan:

It was driven by the owner, Lawson, one of the co-defendants.

Byron R. White:

One of the co-defendants and with the policeman in the car?

Vincent J. Grogan:

The policeman was in the car with him.

Byron R. White:

Do you think if you have problem probable cause to arrest the man and you find him in his car somewhere, can you arrest him?

Do you think the — you put him in the patrol car, would you think the police have the right to seize the car and take it the station or anywhere else?

Vincent J. Grogan:

I believe they have the right to take the car some place else, Your Honor, to the station perhaps.

Byron R. White:

Alright.

Vincent J. Grogan:

I question whether they have the —

Byron R. White:

What probable cause did they get to seize the care?

Vincent J. Grogan:

If we assume that the —

Byron R. White:

Other than just to get it off the street.

Vincent J. Grogan:

That was my reason for saying, to get it off the street.

Byron R. White:

Oh, where it is parked within a — somewhere where it doesn’t say no parking.

Vincent J. Grogan:

Yes, that would be all that they could do.

Byron R. White:

They couldn’t take it at the station?

Vincent J. Grogan:

I don’t believe so, Your Honor.

Nor could they do this, do the things that they did in this case which was to conduct after they have taken it to the station or have been driven to the station.

Byron R. White:

Let’s assume they could take it to the station.

Warren E. Burger:

Do you lis — do you agree that they can take it to the station?

Vincent J. Grogan:

I don’t believe, Your Honor, that they can just take it to the station for any other purpose than to get it off the street.

I’m not sure that they can move it.

Byron R. White:

Do you think they can impound it?

Vincent J. Grogan:

It depends on the circumstances why —

Byron R. White:

Maybe you tie it up so that the defendant’s wife couldn’t come and just drive it away?

Vincent J. Grogan:

I don’t believe so without some further action.

Warren E. Burger:

Or impound it so that no one could remove heroin from it from the gas tank or some such thing or pistols from the heater.

Vincent J. Grogan:

If they have a reason to believe, Your Honor, but they could have got themselves a warrant in the time or left someone there in custody of the car or have a police officer remain with the car.

Byron R. White:

I know but somebody fills up with the car, they parked the car in a legal parking zone, take the man at the police station and leave an officer with the car and the wife shows up at the car and says give me, I want the car, I want to drive it away.

They couldn’t hold it, could they?

Vincent J. Grogan:

I don’t believe so.

Warren E. Burger:

Can they search the car?

Let me get, be sure to get that clear.

Put them on the setting where they stopped the car and pull it onto the side of the street.

Vincent J. Grogan:

Yes.

Warren E. Burger:

They may search the car, top to bottom, right then and there?

Vincent J. Grogan:

I don’t believe so on to the dictates of Preston.

Mr. Chief Justice, I think they are the —

Warren E. Burger:

— depends the search then and there?

Vincent J. Grogan:

Preston permits the search then and there for the purpose of preventing the destruction of evidence or to prevent the suspects from getting to weapons.

Warren E. Burger:

Wasn’t that the Harrison or Harris case came after that, set a little bit more lay down to subjects.

Vincent J. Grogan:

I don’t think it would permit when —

Warren E. Burger:

When under the District of Columbia Circuit —

Byron R. White:

Cooper.

Warren E. Burger:

Cooper?

Vincent J. Grogan:

Cooper.

Warren E. Burger:

No,Cooper Harris or Harrison, well, no matter.

Byron R. White:

Oh, yes.

Harris, that’s right.

Warren E. Burger:

Well, I don’t want to interrupt your argument longer.

Vincent J. Grogan:

Your Honor, I believe my time is up.

Thank you very much for the opportunity of presenting the case to the Court.

Warren E. Burger:

Ms. Los.

Carol Mary Los:

Mr. Chief Justice and may it please the Court.

The Commonwealth the Pennsylvania would readily agree that certainly no man should be asked to stand trial on serious criminal charges or in any charges unless he has had adequate opportunity to discuss his case with counsel.

But certainly counsel shouldn’t be forced to represent the man with only a few moments notice.

This we feel destroys any semblance of the attorney-client relationship, because not only does it land itself to the fact that the attorney might not be adequately prepared but also he may likely in conation to act as an advocate on behalf of his client.

Fortunately, that did not happen to Frank Chambers.

As the record shows, we know that he was visited during the five-month period that he was lodged in a county jail by an investigator from the Legal Aid Society that the investigator did prepare report that was reduced into writing and was placed in a file.

But the file was subsequently turned over to Mr. Tamburo who was to represent Chambers on the day of trial.

Byron R. White:

Is that all in the record?

Carol Mary Los:

Your Honor, it’s in the record by virtue of allegations made in response to the habeas corpus petition filed in the state court.

Unfortunately, what happened to state habeas corpus hearing was the counsel for the petitioner then withdrew the allegation of ineffective assistance of counsel.

Consequently, the matter was never before the court, the Commonwealth was not required to go forward with its burden of proof or to present Mr. Tamburo or to offer, in fact any files or records from the Legal Aid Society.

Consequently, there is nothing actually on the record before your Court.

Byron R. White:

The issue then was presented to the state court?

Carol Mary Los:

It was presented to the state court —

Thurgood Marshall:

It was withdrawn.

Carol Mary Los:

— and withdrawn.

However, Your Honor in the federal district court.

Carol Mary Los:

The judge their felt that since the petitioner himself had raised it that it should be considered again by him.

Byron R. White:

He thought that withdrawing the state?

Carol Mary Los:

He did, Your Honor.

Byron R. White:

Do you think?

Carol Mary Los:

I feel that if that is the case, if petitioner was not waiving it at the time that it did not exhaust the state revenues and the question actually should be before the state court.

Byron R. White:

How did he — he withdrew it?

Carol Mary Los:

By virtue of his counsel when the Commonwealth attempted to cross-examine Chambers about the length of time that he had — had an opportunity to speak with Mr. Tamburo.

Byron R. White:

Well, if there wasn’t an adequate hearing in the state court because they didn’t do that.

Carol Mary Los:

Yes, that is our point Your Honor, we are saying that they with — if there is anything lacking in the record, then it is likely by virtue of counsel for the petitioner at the time withdrawing the allegation and consequently the Commonwealth then stopped its line of questioning with the petitioner on this lines and did not present any affirmative evidence to share the petitioner had had an opportunity to discuss this case with Mr. Tamburo.

In any event, I think we can tell from the record that Mr. Tamburo was very much aware of the facts of the mistrial that it occurred three weeks prior and was certainly very much aware of the evidence that have been admitted at the previous trial.

Chambers now shows that the near fact that he didn’t get to consult with Mr. Tamburo for longer period of time warrants a new trial.

In the past, in our circuit in the state courts when an allegation of this nature is made, it is merely one factor to be considered in the overall test of effectiveness of counsel.

In other words, the burden remains with the petitioner to prove that he was prejudiced because of the belated appointment.

Byron R. White:

Ms. Los.

Carol Mary Los:

Yes, sir.

Byron R. White:

(Inaudible)

Carol Mary Los:

Yes, you do, Your Honor.

It’s in printed at the appendix.

That’s it.

Byron R. White:

And that will tell us all the facts of withdrawal of counsel at that point?

Carol Mary Los:

Yes, Your Honor.

Yes, it does it sets it forth for you.

Now, this is — generally, this is the Pennsylvania rule.

In other words, the prisoner — the petitioner would have to show that the appointment was made in bad faith as being merely perfunctory prior to trial or that he was actually prejudiced.

This is the decision, I believe, that the Attorney General of New York seeks to bring before you in the amicus brief in this case.

This position while we are certainly happy to have the work by the Attorney General of New York goes beyond the position that we are taken because we feel that as far as the facts of the apparent — this criminal law in Allegheny County is concerned that the facts especially in this case might warrant the presumption that the Third Circuit has given in cases of belated appointment.

For one thing, there is certainly a great hesitancy among the judiciary to judge defense counsel’s work especially, if the judge has himself appointed defense counsel to represent an instant defendant.

And again, there is a hesitancy on the part of the defense counsel to say that he actually was ineffective or was inadequately prepared.

Of course, where he has not asked for a continuance of the case based upon these facts, it would be I think, more embarrassing for him to admit that he was inadequately prepared.

And third, of course the prisoner lacking any legal knowledge would not be in a position to judge his attorney’s competence.

Carol Mary Los:

Now the problem is aggravated in Allegheny County in Pittsburgh because there, unless the case is a murder case or involves an extensive string of armed robberies, counsel is appointed ahead of time, it is the public defender’s office who is appointed and an investigator does a preparatory work.

But unfortunately, the prisoner does not have an opportunity to speak with his counsel sometimes even just prior to going into the courtroom.

Usually counsel, defense counsel will visit the prisoner in the bullpen which is located below the courtrooms on the morning of trial.

But unfortunately, in most situations, I must admit the counsel does not have an opportunity to speak with his client until just moments before the trial begins.

Thurgood Marshall:

Well —

Carol Mary Los:

He does —

Thurgood Marshall:

— Ms. Loss, the petitioner says that under those circumstances, there’s no way under the sun to file a pretrial motion.

Carol Mary Los:

Well, that is true Your Honor.

Well, that it is — that is very possible that that particular counsel would not have filed one.

The investigator of course prepares the facts and these facts are available to trial counsel.

He does not get to confer with his client but there was a previous conference done by an investigator from the public defender’s staff.

Here, the trial judge specifically —

Thurgood Marshall:

Well who made this —

Carol Mary Los:

— specifically —

Thurgood Marshall:

— who made the decision whether or not to file pretrial motions in this case?

Carol Mary Los:

The record is unclear on that.

I would presume that it was done by counsel.

Thurgood Marshall:

— the record is clear that the counsel in this case couldn’t have decided because he didn’t get it until that morning.

Carol Mary Los:

Not this.

All we know, Your Honor, is that he did not confer with his client prior to that morning.

He may possibly have had the case prior to that but I don’t think that’s relevant in this situation, Your Honor, because here the state judge as well as the federal judges all ruled in the admissibility of that evidence anyway despite the fact that no pretrial motions were filed.

In other words, they granted the fact they should have been filed but nonetheless say, we will rule specifically on the admissibility of this evidence.

What about the first trial?

Carol Mary Los:

At the first trial, Your Honor, I believe the bullets were not admitted into evidence and I presume the counsel then Mr. Tamburo that is would have relied upon that.

Byron R. White:

Did they offer anything to (Inaudible)?

Carol Mary Los:

I am not familiar with the — with that because we did not have a copy of that until the weekend, Your Honor.

So I do not have —

Warren E. Burger:

I got the impression from the record that they put the pistols in, they put the weapons in —

Carol Mary Los:

Right.

Warren E. Burger:

— not the bullet.

Carol Mary Los:

Right but not the bullets.

Byron R. White:

Was there any objection to the – certainly, the petitioner had consultations at his first time with the Legal Aid Society representatives.

Carol Mary Los:

Yes, of course.

Byron R. White:

And there was ample time that there for pretrial motion?

Carol Mary Los:

We, — as I say, Your Honor, we don’t have anything as a matter of record to bring before you on those points and I would presume that there was ample time.

Byron R. White:

Well, was it the record that has not been fully developed on this counsel point?

Carol Mary Los:

That’s very true it is not, Your Honor.

And again, I say that the Commonwealth did not have to go forward with the evidence in this particular matter.

We will concede though that the rule in the circuit which braces the presumption should be applicable to cases of this nature.

Especially in lieu of the Allegheny County situation and the Circuit Judge, David Stowe, who ruled on this case was from Allegheny County was quite familiar, I believe, with this situation.

What did you say it raised the presumption of what?

Carol Mary Los:

It raises the presumption of ineffective assistance of counsel from the fact the counsel did not have an opportunity to confer with this client prior to trial, Your Honor.

Does the record show how long the lawyer had been practicing law?

Carol Mary Los:

No, it does not Your Honor.

There was no investigation at all into this matter.

That’s because you say that they withdrew it.

Carol Mary Los:

Yes, they did, Your Honor.

Counsel specifically stated when an assistant district attorney attempted to cross-examine Chambers, his defense counsel got up and said we want it to be made clear to the Court that we are not challenging the effectiveness of counsel.

Which defense counsel was that?

Carol Mary Los:

This was a Mr. F. Peter Dickson, who was specially appointed at the state habeas corpus hearing.

Potter Stewart:

Was it — are you telling us that this is standard operating procedure in Pittsburgh?

Carol Mary Los:

Yes, I am, Your Honor.

The —

Potter Stewart:

It happens in every case except for first-degree murder case or something like that.

Carol Mary Los:

Or serious case of armed robberies or large narcotics charge.

Potter Stewart:

Or a series (Voice Overlap) on felony cases, your representation is that this is standard procedure in Allegheny County in Pittsburgh for the actual lawyer is going to be in the courtroom representing the indigent not to see him until the morning of the trial usually in the bullpen, is that it?

Carol Mary Los:

Yes, that is true Your Honor.

However, an investigator from the Public Defender’s Office has previously conferred with the defendant.

And has prepared a file, you know, if there are matters which should be raised and in addition, if there are defenses which must be raised they have subpoenaed the witnesses.

Now, —

Hugo L. Black:

Or you raise any objections of the shortness of the time?

Carol Mary Los:

No, he did not, Your Honor.

He did not in this case.

Hugo L. Black:

How long was that after it raised?

Carol Mary Los:

It was not raised until the state habeas corpus, and I believe that was a matter of almost two years later.

It was not raised.

Byron R. White:

How long it then?

Hugo L. Black:

How long was that?

Carol Mary Los:

Pardon, sir?

Hugo L. Black:

How long was that?

Carol Mary Los:

It was approximately, I believe two years later that it was raised.

It was not raised by way of post trial motions and it was not raised on a direct appeal.

Warren E. Burger:

At the time of the sentencing, does the state procedure allow a right of allocution?

And if so, was it exercise?

Did the defendant make any statement of his own to the Court at the time of sentencing?

Carol Mary Los:

We don’t have a record of that, Your Honor.

I would presume that he — our state procedure does call for that right and he would be certainly allowed to say anything that he wished on his own behalf.

Warren E. Burger:

Suppose it will be reasonable to assume that if in exercising that right, he complained about the performance of his counsel that someone would have bought it to our attention and to yours by now.

Carol Mary Los:

Yes, and I presume that it wouldn’t have been made a matter of record so that we might have it to bring for your Court.

Warren E. Burger:

I wasn’t sure about the presumption.

Do you suggest that there is some kind of presumption that ineffectiveness of counsel if the lawyer doesn’t see the client until the day of the trial?

Carol Mary Los:

Yes, the —

Warren E. Burger:

Where did that —

Carol Mary Los:

The Third Circuit has adopted a rule where it may grant a presumption to the defendant.

If he can prove that he only met his counsel very shortly before trial that a presumption of ineffective assistance of counsel would be raised.

Warren E. Burger:

On that — on that basis, half of the barristers of England and half of the cases in England would be presumed to be ineffective because they rarely ever see their client.

Carol Mary Los:

And in Allegheny County, I am afraid it would be — the percentage would be even greater, Your Honor.

Warren E. Burger:

Well, I would say at least.

But an associate namely under the British System, the solicitor and in Allegheny County, the investigator for the Public Defender’s Office seized the man and does the investigating, is that right?

Carol Mary Los:

Yes, that is correct, Your Honor.

Carol Mary Los:

That’s correct.

Warren E. Burger:

So it’s an institutional defense that he has, it says though he hired a law firm and had the services of several people instead of one?

Carol Mary Los:

Yes, that is correct.

Now, he says that he was actually prejudiced by the failure to file this pretrial motions and I as I’ve suggested to you he was not prejudiced because in fact the trial judge, as well as the federal district court judge and the circuit court judge discussed those — the admission of the evidence right on the merits so that he could not possibly have been prejudiced by that.

He says he is prejudiced because he did not receive a severance from the other defendants.

And he cites the fact that Raymond Lawson had previously been tried on a murder charge.

In fact, I eventually say that the other defendants were prejudiced by being tried with him because he was the one that was identified as being the gunman at the two robberies.

Byron R. White:

I take it the state court judge who passed on the habeas corpus petition actually reached the counsel point, didn’t he?

Carol Mary Los:

Yes, he did, Your Honor.

Byron R. White:

Why did he do that if the point had been withdrawn?

Carol Mary Los:

Well, I believe that in answering the petition for habeas corpus, (Voice Overlap) he went, it was raised there.

So he answered that, I believe.

Byron R. White:

Where — where do we stand on exhaustion then that the state court actually purported to dispose of the point?

Carol Mary Los:

If you should find that indeed the petitioner had not waived his right to raise that point.

And that the record — that even though his counsel might have done so if he had not joined in that, that the allegation would still stand and the record was inadequate for either the state habeas corpus judge to rule on it and any of the federal judges, then I feel I’m force to say it must be remanded for an evidentiary hearing.

If you find that there was sufficient evidence for the state judge and the federal judges, even if he had not waived it, then hearing is unnecessary.

Hugo L. Black:

When was this second court rule adopted by the prima facie evidence?

Carol Mary Los:

The circuit was adopted, it was adopted I believe prior to this in a case Mathis — United States ex rel. Mathis v. Rundle which we have cited for you in our brief.

It has been cited by the petitioner, as well as by ourselves.

Hugo L. Black:

That’s before he was first — retried the first time?

Carol Mary Los:

No, Your Honor it is not.

Hugo L. Black:

It was not in effect?

Carol Mary Los:

No, it was not in effect I believe until 1967 and that was —

Hugo L. Black:

What does it have to do with this case then?

Carol Mary Los:

Well, —

Hugo L. Black:

That so-called presumption?

Carol Mary Los:

They — I believe it is their position, that this — that the effectiveness of counsel is a question which does depend upon retroactivity for its existence.

In other words, this is fundamental to a defendant’s due process of law and an indigent defendant’s equal protection laws consequently it would not —

Hugo L. Black:

I presume there are many lawyers who walked into courtroom in many cases, civil and criminal, didn’t know anything about the case until they started.

Carol Mary Los:

Well, that may very well be true, Your Honor, I would suggest that certainly as far as the — as their client is concerned that they are in a rather precarious position.

Carol Mary Los:

In other words, once the state has appointed counsel for someone and that particular counsel chooses not to prepare the case and in effect renders ineffective assistance to counsel, or counsels appointed by the state merely is a perfunctory gesture so there is not sufficient time to prepare, then certainly, I think that it is our duty whether it’s a persecutor saying or defense counsel or the court to step in and to rectify that situation.

Hugo L. Black:

Is there anything or whatever in the record concerning the way the man tried the case or concerning any other facts that was established to show the Court that he wasn’t an effective lawyer?

Carol Mary Los:

No, Your Honor, there’s absolutely nothing to show that he was not an effective lawyer.

Hugo L. Black:

And not going to accept to you as appointed that morning.

Carol Mary Los:

That is correct, Your Honor.

There are the allegations made —

Potter Stewart:

Petitioner doesn’t agree with you about that at all.

Carol Mary Los:

No.

There are of course allegations made that they should have filed these pretrial motions.

Potter Stewart:

Yes.

Carol Mary Los:

And they should have asked — they should have argued for severance.

They should have filed the pretrial motions to suppressed evidence.

Hugo L. Black:

Argued for sole?

Carol Mary Los:

And argued for severance.

They joined in the motion for severance.

They did not make a specific — that particular counsel does not make a specific.

Hugo L. Black:

Where there any reasons, any evidence shown here that severance would have been granted or is it in the reason that –?

Carol Mary Los:

No.

Absolutely none, Your Honor.

Absolutely none.

Hugo L. Black:

Sometimes the severance is not desired.

It’s not at desirable thing for some defendant and they have nothing here to show that a severance would have helped them.

Carol Mary Los:

No, Your Honor.

There’s nothing to show that all.

Hugo L. Black:

Did they argue that there’s anything that would have helped him in severance?

Carol Mary Los:

Well, they argue that Raymond Lawson, a co-defendant have been previously tried on a murder charge and that if they have known this, they never would have wanted Lawson to be able to testify his own behalf, because he apparently does not make a very credible witness.

It is our position that anyone of the co-defendants might have been more prejudiced by being tried with Chambers and vice versa because of the four of them Chambers was the one that was absolutely identified as the gunman in the two different robberies.

Consequently, we don’t feel that there’s anything at all that would have aided chambers by being severed in the two cases.

Potter Stewart:

Petitioners refers primarily to the pretrial motion is suppress.

Carol Mary Los:

Yes, Your Honor, it is true.

Potter Stewart:

And says that if counsel have known about this situation the lawyer individual lawyer known about this situation, he would have filed the motions to suppress and therefore wouldn’t have been prejudiced by the later action of the Court admitting the evidence of the basis of the fact that the proper procedures hadn’t been followed to suppress the evidence, isn’t that his argument?

Carol Mary Los:

That is his argument and our answer to that of course is that judge actually the trial judge ruled on the merits as did the federal judges who later have an opportunity to review this.

Hugo L. Black:

Was there any motion made?

Carol Mary Los:

There was a motion, yes, Your Honor at trial.

Hugo L. Black:

There is?

Carol Mary Los:

Yes, at trial, a motion was made an objection.

Hugo L. Black:

And was denied on the ground that it’s too late?

Carol Mary Los:

The trial judge in answering said you should have filed a motion to suppress and then he said however, I don’t feel that this is evidence which should be suppressed consequently I will overrule your objection.

Hugo L. Black:

He overruled the objection to the motion to suppress?

Carol Mary Los:

That is correct, Your Honor.

He overruled the objection.

Warren E. Burger:

But he did so, on the merits?

Carol Mary Los:

I believe, he did so directly on the merits.

Thurgood Marshall:

Ms. Los, was it on — in Pennsylvania, on a motion to suppress, is the defendant allowed to put on evidence?

Carol Mary Los:

Yes, he is Your Honor.

The burden shifts to the Commonwealth to prove the admissibility of the evidence.

Thurgood Marshall:

Well, then —

Carol Mary Los:

Then the —

Thurgood Marshall:

The motion is made during the trial, is this case the judge said no evidence is in yet, right?

About the seizure?

Carol Mary Los:

As far the bullets were concerned that was not in evidence at the time.

Thurgood Marshall:

Nothing in evidence except the bullets.

And the judge says, you should have made this motion but since you didn’t make it I will rule on it that the motion is denied without more.

Carol Mary Los:

If I may explain, Your Honor.

Initially, there were two objections made at trial.

One was to the evidence found when the car at the search of the car.

The other was made to the bullets that were seized at the petitioner’s home.

As far as the original one was concerned, an objection was made to the admission of that at trial not a formal motion to suppress but instead an objection to the evidence that had already been admitted into evidence.

Thurgood Marshall:

And did they ever war there on that?

At that time?

Carol Mary Los:

No, they did not, Your Honor.

They did not.

Thurgood Marshall:

Well, what I’m trying to get is you are not telling us that at that stage a motion of trial is the same as the motion before trial, are you?

Carol Mary Los:

No, I am not Your Honor, I am saying though.

That if the judge has an opportunity to rule on the merits as to whether or not it is —

Thurgood Marshall:

Well, what would were it merits, the bullets were there, what else were the merits, do you have any testimony at that stage as to how the bullets received?

Carol Mary Los:

At the time at the judge ruled on them, yes, the motion was made before the court.

The trial judge said, I will hear the evidence as far as the bullets are concerned.

As soon as when he heard the evidence, he ruled they were admissible.

Thurgood Marshall:

Did he hear the defendant?

Carol Mary Los:

No, he did not at that particular time.

Thurgood Marshall:

Did eh hear the defendant’s witnesses?

Carol Mary Los:

No, he did not, Your Honor.

Thurgood Marshall:

Then how could he rule on the merits when he only heard one side?

Carol Mary Los:

Because, Your Honor, he has before him the warrant and the testimony of the police officer who served that warrant and who searched the house.

Thurgood Marshall:

And that’s the merits?

Carol Mary Los:

Yes, Your Honor.

I feel that he can make a judgment as to the admissibility of the evidence based upon that.

Warren E. Burger:

Well was the defendant precluded at that time from putting in any evidence he wanted to on the subject matter?

Carol Mary Los:

Your Honor, he did not make an attempt to do so and later he didn’t offer any defense.

Consequently, I would presume that he didn’t have anybody available to —

Hugo L. Black:

What was the evidence he did move to suppress?

Carol Mary Los:

An objection was made initially to the evidence that was found when the car was searched at the police station.

It was —

Hugo L. Black:

What was there?

Carol Mary Los:

Two revolvers, two guns that were loaded, there was a glove full of change that was later identified as being taken from the Gulf service station robbery, there was several cards, identification cards, driver licenses that were taken, credits cards that were taken at a robbery one week previous to that, that was a bore on station robbery.

That was objected to at trial and admitted into evidence.

Then counsel, Mr. Tamburo, suggested to the court that bullets were going to be introduced and he wanted to preclude the court from —

Hugo L. Black:

What bullets?

Carol Mary Los:

These were bullets that were found after one had been served at the petitioner’s house the day after the robbery.

Carol Mary Los:

It was in the morning of the robbery, a police officer went to the house, he went to the houses of all of the defendants but it was at —

Hugo L. Black:

What did — what are the bullets for them to show?

Carol Mary Los:

The bullets were of two characters.

They were short and long .38-caliber bullets, a good number of those bullets were dumdum bullets, which a police officer testified were rather rare in his experience.

They — the prosecution then placed into evidence, the two revolvers that were seized from the car in which the petitioner was riding.

These two — the bullets from those guns matched.

In other words they were .38-caliber long and short, some of them were dumdum bullets.

Hugo L. Black:

— it could have been fired in those pistols?

Carol Mary Los:

That is true, Your Honor.

Hugo L. Black:

That was the object?

Carol Mary Los:

That was the object of admitting them into evidence.

Hugo L. Black:

And where were the bullets found?

Carol Mary Los:

They were found in the petitioner’s home, in his apartment.

Hugo L. Black:

In what?

In his apartment?

Carol Mary Los:

His apartment.

Warren E. Burger:

Given the merits, I don’t recall the record at the moment but you spoke of eye witnesses, how many eyewitnesses identified this appellant-petitioner?

Carol Mary Los:

At the first — as involves the first robbery there was only one witness, the fellow who was robbed, the gas station tenant.

He positively identified him.

At the — for the second robbery, the fellow who was robbed stated that he was unable to identify him in Court because his physical appearance was somewhat changed.

He had a different — it was different clothing, he was now wearing glasses, he had shaved the moustache that he was wearing at the time of the robbery.

However, he did identify him within hours of the robbery as being the person who — the gunman, who would come in to rob him.

So, these are the — this is the eyewitness testimony that we have.

The teenagers who observed the car circling the area, a car which contained four Negro occupants, one was wearing a dark green pullover V-neck sweater, and another was wearing a light trench coat.

And we know from the fellow who was robbed that one of the gunman was wearing a V-neck sweater and another was wearing a light tan trench coat.

Of course, we have no eyewitness testimony from the two teenagers who observed this car because they couldn’t identify anyone who was in the car other than their race and their dress, and they did not observe the robbery.

I would like, just for a moment, if I may to reach the question of the search that was conducted at the police station.

Certainly, if Chimel is retroactive, then I must concede this argument.

But it is our position, at the time that the police officers acted that the test must be the reasonable of the search that they made, they couldn’t search the car.

Byron R. White:

What do you do with Preston?

Carol Mary Los:

Pardon?

Byron R. White:

What do you do with Preston?

Carol Mary Los:

We believe that Preston is merely an extension of the reasonableness rule and in other words, that our facts, if we can differentiate then from Preston would be acceptable as far as the reasonableness test is determined.

Byron R. White:

(Inaudible)

Carol Mary Los:

Well by saying this, Your Honor.

For one thing the — we maintain that this was a search incident for a lawful arrest, that the search that was made at the police station was substantially contemporaneous with the arrest.

Byron R. White:

Was there any time for (Inaudible)?

Carol Mary Los:

A very short time, Your Honor.

Byron R. White:

(Inaudible)

Carol Mary Los:

No, we don’t know precisely.

Byron R. White:

Any event was (Inaudible)?

Carol Mary Los:

Taken to the police station.

Byron R. White:

You take it and lock him —

Carol Mary Los:

Yes, you’re right, Your Honor.

They were inside the police station.

I can’t make a Cooper argument and say while the police were just attempting to inventory the car or to —

Byron R. White:

(Inaudible)

Carol Mary Los:

Right.

No, they could not reach the car I will admit that.

But we are saying that the police officers would have placed themselves in danger because of the dark circumstances in this parking lot, the fact that it adjoined a bar where friends of the petitioner and his co-defendants were frequent.

Byron R. White:

But where was the car when they searched it?

Carol Mary Los:

When they search it, it was at the police station.

They took it by virtue of having Lawson drive it with the police officer to the station, and it was there that they searched it.

We are saying, if I may Your Honor, they couldn’t search it in the dark parking lot.

It was too dangerous for them, the member of policemen that they have there.

It was too dark to be able to search the car effectively.

Byron R. White:

What I understand, what is your position? Once they gather to the station, they have expect the block — they then hide the car where empty station —

Carol Mary Los:

They had it in the driveway which adjoined the police station — yes, Your Honor.

Byron R. White:

Now, what (Inaudible) — understanding they would want to search the — where the — was arrested.

Carol Mary Los:

Because Your Honor, we feel that there is a reason for nexus between the crime charged here, the fact that this was the escape automobile.

Carol Mary Los:

Whereas in Preston, there was no connection between the search of the car and the vagrancy the reason why the men were —

Byron R. White:

(Inaudible)

Carol Mary Los:

It is Your Honor, yes it was.

Byron R. White:

(Inaudible)

Carol Mary Los:

If that is a test, Your Honor.

We don’t feel at that particular time is a test.

Byron R. White:

What makes the custody of the car legal?

Carol Mary Los:

The car was taken Your Honor because it was suspected as being the escape vehicle.

Certainly, if someone would have come to claim the car the police officers could not have detained it.

Byron R. White:

The wife or brother or anybody else has showed up and take this car, just when they wanted to search it, they have to let it go.

Carol Mary Los:

You’re right, Your Honor.

I would — I would say —

Byron R. White:

Would you say that?

Carol Mary Los:

— I’m saying that if they have searched the car —

Byron R. White:

They could search it and they could search it, I don’t think they can hold the search?

Carol Mary Los:

If they had not begun search by the time members of the family had come to take the car, I would presume because of the time laps there, it could not be substantially contemporaneous with the arrest.

If they have the right to search the car, the right extends as I feel —

Byron R. White:

(Inaudible)

Carol Mary Los:

Well, Your Honor, we know.

I don’t rely on that because I know that the witnesses could not specifically identify this particular automobile.

Hugo L. Black:

But it was an automobile?

Carol Mary Los:

Excuse me, Your Honor?

Yes, Your Honor.

Hugo L. Black:

You say it was the automobile, I think it was identified enough, wasn’t it?

Carol Mary Los:

Well, yes it was, but as far as seizing it for purposes of evidence, in other words, having at been identified by someone as being the getaway car we could not do that because we know.

Hugo L. Black:

Whose car was it?

Carol Mary Los:

It belonged to Raymond Lawson who was a co-defendant and he was driving the automobile.

Warren E. Burger:

Your time is up Ms. Los.

But I have one question for you.

Neither you nor your friend seemed to cite the Harris or Harrison case out of the District of Colombia Circuit which at least a great many people read as considerable clarification of the Preston doctrine where the automobile was searched by the police without a warrant substantially after the time of the arrest and several miles away.

Warren E. Burger:

Are you familiar with the case?

Carol Mary Los:

I am Your Honor, unfortunately, it does escape me at the moment.

I know that we did consider it we chose to rely on Dento which the circuit relied upon.

Warren E. Burger:

I just wondered if there where any reason to think that it was not in the point as I sat on the case in the Court of Appeals and my recollection is that it’s very much in point here.

Perhaps Mr. Grogan will shed some light on it if he wishes to.

Vincent J. Grogan:

Your Honor, we also considered it.

I frankly at this point don’t recall what our reasons where when we prepared the brief for not including it.

If I may, there was one thing I would like to call to the Court’s attention.

In connection with the waiver of the argument on the infectiveness of counsel, I think the case of Fay against Noia decided by this Court would have to indicate that there have been a knowing waiver and here counsel made this gratuitous statement in the course of the discussion and it was not participated in by the defendant in any fashion.

Warren E. Burger:

You have a substantial amount of time left if you wish for a rebuttal.

Byron R. White:

Oh, he’s out.

Warren E. Burger:

Oh!

Vincent J. Grogan:

I’m out of time.

Warren E. Burger:

Excuse me, I’m looking at the wrong sheet and the wrong case and it showed nine minutes but I was mistaken.

Vincent J. Grogan:

Thank you very much.

Warren E. Burger:

Thank you.

Thank you for your submission and for yours.

The case is submitted.

Carol Mary Los:

Thank you, sir.