Chapman v. United States

PETITIONER:Chapman
RESPONDENT:United States
LOCATION:Eagle Coffee Shoppe

DOCKET NO.: 175
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 365 US 610 (1961)
ARGUED: Feb 23, 1961
DECIDED: Apr 03, 1961

Facts of the case

Question

  • Oral Argument – February 23, 1961 (Part 1)
  • Audio Transcription for Oral Argument – February 23, 1961 (Part 1) in Chapman v. United States

    Audio Transcription for Oral Argument – February 23, 1961 (Part 2) in Chapman v. United States

    Earl Warren:

    — continue your argument.

    J. Sewell Elliott:

    Thank you, sir.

    May it please the Court.

    I had practically completed my reference to the statement of facts before lunch.

    There is one other point that I would like to mention and that is that the United States has concluded that this was an oral rental agreement.

    I do not feel that this is supported by the evidence and by the record in this case.

    I refer the Court to page 75 of the record there at the — down in the second answer, the lengthy answer there, “And I fixed him up, agreed to rent it to him and fixed him up a standard 30-day rental contract for the rent and erred.”

    I don’t believe the evidence supports that it’s an oral, although I do not know that that is too significant in this case.

    Charles E. Whittaker:

    Well, does it make any difference?

    J. Sewell Elliott:

    I don’t think it does, Your Honor.

    Now, since the decision of the Fifth Circuit in this case, this Court in the Elkins case, overruled the so-called “silver platter doctrine” by holding that evidence obtained by state officers which would have violated the constitutional rights of an individual, if it had been obtained by the federal officers, is not admissible in the federal court.

    So I think this would dispose of the — any question that might come by the fact that a state agent first entered this house and that the federal agents were immediately called into the case, the silver platter doctrine question is disposed of.

    Potter Stewart:

    The Court of Appeals didn’t rely on this silver platter doctrine at all, did it?

    J. Sewell Elliott:

    No, the Court of Appeals stated in their opinion that they were not relying upon it.

    That is correct.

    Although the United States never questioned specifically the standing of petitioner as a lessee of these premises, the trial court did hunt as such.

    However, we feel that this question has been put at rest by the recent decision of this Court in Jones from District of Columbia.

    There are two recent cases, Jones cases that I will refer to.

    One originated in Georgia and one in the District of Columbia and I will refer to them as such.

    I make reference now to the Jones case from the District of Columbia.

    In other words, in the Jones case from the District of Columbia, if anyone is legally upon the premises, then he has a standing to assert his constitutional rights under the Fourth Amendment.

    In view of these two recent decisions of this Court, this leaves only one question open to the Court at this time and that is, was this search and seizure reasonable under these circumstances?

    Now, I would like to mention some general principles before proceeding further.

    First, a search and seizure cannot be separated as intimated by the United States in their brief.

    They cannot be considered as two separate things.

    They must be considered together, the search and the seizure.

    You cannot say that one part is the search and the other part is the seizure.

    That has been very clearly set forth in the decisions of this Court.

    This Court has also held that a search warrant is necessary in all instances.

    Felix Frankfurter:

    Would you mind stating again what you’ve said it — would you mind stating again what you said it’s been clearly held that you must scramble search and seizure and you can’t separate it?

    Felix Frankfurter:

    Is that what you said?

    J. Sewell Elliott:

    Yes, I —

    Felix Frankfurter:

    I suppose the contrary.

    (Inaudible)

    J. Sewell Elliott:

    Well, what specifically I am referring to is this, that search is a functional, not merely a physical process and it’s not completed unto — until effective appropriation as part of an uninterrupted transaction of a — of illicitly obtained objects or subsequent proof of an offense to — to differentiate between participation from the beginning and joining before the search runs its course, would draw two final line.

    I am referring to the language of the Lustig case and I feel that in this particular case under the circumstances of this case.

    Felix Frankfurter:

    Is that —

    J. Sewell Elliott:

    This was a —

    Felix Frankfurter:

    — I shouldn’t think that that case stands with the proposition that search and seizure unsurgical — unsurgicable (Inaudible)

    That tells what the problem of whether — of whether the federal officials participated.

    J. Sewell Elliott:

    That is correct and that had to do with the silver platter doctrine.

    However, the language there and also in the — the Jeffers case.

    There again said that the search and the seizure are not easily isolatable, but are bound together by one sole purpose.

    Felix Frankfurter:

    That, I know what that means, because of search maybe valid and it doesn’t invalidate the seizure.

    How can you say that if they’re — they’re united?

    J. Sewell Elliott:

    I don’t really feel in view of the facts of this case that this is significant —

    Felix Frankfurter:

    Alright.

    I understand that.

    J. Sewell Elliott:

    — except to the point.

    Felix Frankfurter:

    I — I quite appreciate that, I hope you’d say that.

    J. Sewell Elliott:

    Yes.

    Felix Frankfurter:

    I don’t want to be better off.

    I know the wrong prentice, but they are wrong conclusions.

    J. Sewell Elliott:

    As a general principle, it might be said that a search warrant is necessary, except when you have a search incident to a lawful arrest.

    Now, that maybe with or without an arrest warrant or — or either in exceptional circumstances.

    And if the burden is upon the Government to show the need for searching premises without a warrant and we feel that they have not shown any need, any compelling circumstance that would require them to search these premises before obtaining a warrant.

    I think another general principle that is important to us today is that evidence found after the entry cannot be used to justify the entry nor can theories that have been conceived in the attorney’s office or in the law enforcement offices, some months or years after the entry was made, be of any assistance in any way to justify a search without a warrant.

    It would depend upon the particular facts and circumstances available at that time.

    In view of the contention of the Government which I anticipate, I think that that perhaps would be of importance to the Court.

    Also, the Fourth Amendment applies to those justly accused as well as to the innocent.

    J. Sewell Elliott:

    It is a constitutional guarantee.

    Now, getting back to this search which was a search without a warrant, either an arrest warrant or a search warrant, it was a search made not incident to arrest.

    It was a search made on the circumstances where no boat or automobile was involved that might get away.

    There was no compelling circumstance here.

    There was no activity, either of a person or a thing in this house at that particular time, and there were sufficient people available so as to guard the house.

    And I say that in view of the Agnello case and the Jones form the Fifth Circuit case and the Taylor case and the Jones case, those four decisions of this Honorable Court have held that probable cause, however well-founded for belief that certain articles subject to seizure are in a dwelling house, cannot of itself justify a search without a warrant, even in circumstances where the facts unquestionably show this probable cause.

    And in this particular case, there was only one indication, possible indication of a violation of the law and that was the smell of mash emanating from the house.

    Now, the framers of the Constitution concluded or I should say, included the Fourth Amendment in our Constitution because they had learned though sad experience that the decision to search a house should not be left to the discretion of the police.

    But as a matter of principle, if the question must be subjected to the requirement of a previous judicial sanction wherever possible, by that is meant that there must be some compelling circumstance of some type before a law enforcement officer has the right to make the decision to search premises without a warrant.

    Now, there are five decisions of this Court that I would like to refer to now which deal with situations where there is no warrant, no arrest warrant, no search warrant and the search is made not incident to arrest.

    The first is the Jeffers case.

    Now, in that case, there was a search of a hotel room.

    This was held to be illegal, although there were many indications of a violation therein.

    In other words, there were noises and peeping through the keyhole and other indications emanating from the premises.

    And there, the petitioner was an invitee, but nevertheless, he had the proper standing to assert his rights under the Fourth Amendment.

    I think it also important there to see that the facts of that case show that before entering this hotel room where no one was present and without warrant, they had permission from the manager of the hotel who was the agent of the owner.

    They even were provided a key through the room by this manager, but in that case, the owner did not strip this individual of his rights under the Fourth Amendment.

    In the Jones case from the Fifth Circuit, there was a search of a house without a warrant, without a proper warrant.

    In that particular case, they had obtained a daytime search warrant, but did not go into the house until after dark.

    This Court held that that was — was an improper search and seizure in that particular case, because even though there were — there were members of the family of the petitioner in that case in the house at the time, they told the officers before they entered that to wait until the man of the house gets back, but they refused to do so.

    In other words, they were put on notice that the man that they were after was not in the house.

    Therefore, their entry was not incident to an arrest, but for the purpose to procure evidence for a future arrest, which is very similar to this case.

    In that particular case, there were many indications of a violation are still was running in the house.

    There were blowers which are normally connected with a whiskey’s tale.

    There were tubes coming from the house, hoses with mash running out, spent mash.

    There were many, many indications and they had even obtained a daytime warrant.

    But under that circumstance just as here, the officers should not have entered without a proper warrant.

    In the Lustig case, there, we have a search of a hotel room without a warrant.

    In that particular case, there again, the agent of the owner, the manager of the hotel called and reported this particular case.

    I might also mention that in that case, the — the petitioner was registered under an assumed name, under a fictitious name, which might be important in view of the probable contention of the Government in this case.

    J. Sewell Elliott:

    But nevertheless, it was held that the petitioner did have a standing and that the search was improper without a warrant.

    In the Taylor case, the officers went to a garage and they smelled whiskey coming from that house and they broke open a door to that garage and went in and found whiskey.

    This Court held that it’s not important whether that garage was part of a dwelling or not, but since there was no one in there at the time and there was no reason for the officers to believe that there was somebody in there, this Court held and quite properly so that the search without a warrant was improper.

    So there, we have searches of hotel rooms, of garages and we — in later instances in other cases and I will refer to have the search of barns.

    In the Trupiano case, that case was a search of a barn.

    The facts are quite lengthy and I don’t think it’s necessary for me to go into those in detail here.

    But in that particular case, the arrest was made — the entry was made incident to the arrest of one person in there.

    This Court upheld the conviction of that man, but said that the evidence obtained while in there could not be used as to other men who were later arrested and prosecuted based upon the evidence found at that time.

    We feel that that’s quite important here in the sense that even though it was incident to an arrest, it was not applicable to those people who are not there and who they sought to prosecute on that evidence.

    Therefore, any cases are not too much in point except for sideline issues such as one that I have just mentioned where they deal with a lawful arrest or entry whether it’d be with a warrant, arrest warrant or without an arrest warrant.

    In the Joines case, I think that’s of interest here in order to round out our development of the case — that’s J-O-I-N-E-S.

    There — in that particular case, the officers had a search warrant.

    They went to the house thinking and for the purpose of arresting someone.

    As it turned out, the man that they thought was there was not there.

    They nevertheless, were able to use that evidence because they, in good faith, searched the house, incident to an arrest.

    Now, in the Agnello case, a house was searched which was far removed from the place of arrest.

    I think that’s important here in rounding out that if it is not incident to an arrest, then you cannot go two or three blocks over, after arresting a man and search his house.

    In the Rabinowitz case, there we have the search of a one-room office building, which by the way was open to the public and the search was restricted to that one room in which a man was arrested under a proper warrant of arrest.

    In that particular case, this Court held that the law enforcement officers had the right to properly investigate, to look and to search the premises there.

    And in that particular case, it was a restricted search and this Court said that that was quite proper under those circumstances, because it was incident to an arrest.

    Now, the United States Government contends that the landlord was acting to protect his property and that he gave permission for the search.

    We do not feel that the decisions that we have mentioned and we’ll go into more detail on support any such contention.

    Not only do the case is not supported, but the facts of this case do not support it.

    In this particular case, the owner of this house went to the house, smells some mash emanating from the house.

    And this is the way the facts are framed up and I think this is most important.

    Instead of going immediately and calling a law enforcement officer, a general law enforcement officer to come out and help me protect my property, he didn’t do that.

    He went and attended to some social business, made some social calls and then after a while when he returned to his house, he didn’t’ call the sheriff’s department or the general law enforcement agents.

    He called the state revenue agents and he said this, “If you will come out here, I will show you a still and you’ll have to get here by such and such of time, because I’m going to busy after that.”

    And then the officer did come out and picked up another officer and came out and made the search.

    Now, those facts are important to show this.

    J. Sewell Elliott:

    That the owner of that premises had in mind the enforcement of the liquor law and there’s no indication whatsoever, but much to the contrary that he did not have in mind protecting his property or keep — to keep waste from being committed.

    Now, the decisions that I spoke of in the Trupiano case, the owner of that property, even drove the officers out.

    He was present with them.

    He had worked with the officers and drove them in his automobile out to the place before the search was made.

    Therefore, that case would not support the contention of the Government.

    Now, in the Jeffers case as I have mentioned, the officers got the key to the hotel room from the manager and got his permission and the manager therefore, is the agent and the proper agent of the owner.

    In the Lustig case, I’ll mention again, the manager of the hotel called and made the report and beckoned the officers to come, very similar as to these instances.

    We think that the facts of this case clearly show that this owner was not trying to protect any civil protection or afford himself several protections, but was interested in the enforcement of the criminal law.

    And we say that an owner —

    Hugo L. Black:

    You think —

    J. Sewell Elliott:

    — who does not —

    Hugo L. Black:

    — you think —

    J. Sewell Elliott:

    — have the right —

    Hugo L. Black:

    You think inference, it would be crucial in the case?

    J. Sewell Elliott:

    I think it’s very definitely shown that it is of no substance, Your Honor.

    I feel that quite clearly that the — that an owner of property does not have any right to strip away the constitutional guarantees of an individual.

    Hugo L. Black:

    I — I meant his motive.

    I understood you were discussing his motive.

    J. Sewell Elliott:

    No, I really don’t think so.

    I’m — I’m approaching it from two or three angles here, but at the same time, I think when we finally — when we get down to the meat of this case, I don’t think his motive is really important.

    I think that that he has a right to go in the civil court and bring some action for a damage or made perhaps under certain circumstances, might have the lessee forfeit his lead.

    But those are civil remedies that are provided to the landlords.

    Hugo L. Black:

    Is there any penalty that should be inflicted on him by permitting a still to run on his property?

    J. Sewell Elliott:

    Not — not if he — under these circumstances, not if he was not a conspirator of any sort.

    Hugo L. Black:

    Is the law that was — I — I’m asking for information —

    J. Sewell Elliott:

    Alright.

    Hugo L. Black:

    (Voice Overlap) — to that.

    During the prohibition days, there were certain laws with reference to forfeiture of property, if you’re familiar to someone who used that —

    J. Sewell Elliott:

    Well, actually under the federal law —

    Hugo L. Black:

    — rather the incident about (Voice Overlap) that was a —

    J. Sewell Elliott:

    — a — a —

    Hugo L. Black:

    Is that just the fact?

    J. Sewell Elliott:

    — property, property that is used in violation of the liquor laws.

    Under federal law is — is forfeitable, but at the same time, I’m sure the Court is familiar with the remission portions of the law wherein an instance such as this, an innocent party such as the landlord who — who participated in no way, what I am sure have — have his remission honored.

    Hugo L. Black:

    Well, would — were to be in a difference, if he knew it was being done and didn’t report it?

    I’m asking what the — because I’m not — I do not know.

    J. Sewell Elliott:

    I would think that if he neglected to report over substantial time, it might be construed as entering into the — the bench shelves and perhaps be considered a co-conspirator in some ways.

    Hugo L. Black:

    And would that regard to the liability for the guilt of the man — a joint guilt that it’s — would it have any effect on forfeiting his property?

    J. Sewell Elliott:

    I would think that the Court would be entitled to consider that circumstance, Your Honor.

    I think that the Court —

    Hugo L. Black:

    Have either one have you cited the statute with reference to the forfeiture of property for — used for —

    J. Sewell Elliott:

    That was cited.

    Hugo L. Black:

    (Voice Overlap) —

    J. Sewell Elliott:

    I might also refer — I plan to get to that in just a minute, but I — I will refer to it at this time.

    The — under the federal forfeiture statutes, any property whatsoever, which is used in the violation of the law, then the owner loses all property rights in that particular item.

    For instance —

    Hugo L. Black:

    Does that include real estate?

    J. Sewell Elliott:

    That would refer to real estate as well as personal property.

    And I say for instance and if — if I have contraband whiskey or articles in my car and in drive — and in driving down the road, then I automatically do not have any rights in that automobile.

    Just like under the application of this Georgia statute, the lessee may lose his property rights in the real estate, but that does not mean that he loses his constitutional right.

    They are two entirely different things and there are many cases that this Court has considered.

    Hugo L. Black:

    You mean it does not mean that the person who’s driving the car loses his constitutional rights?

    J. Sewell Elliott:

    That is correct.

    Hugo L. Black:

    Of course here, the — I assume that’s not claimed.

    Owner’s constitutional rights were violated, whether (Voice Overlap) —

    J. Sewell Elliott:

    I don’t think that they’re involved here.

    I think it’s only the — the petitioner in this case, constitutional rights are involved.

    To hold otherwise in this case and to reverse this case, would be too far reaching.

    It would mean that there are too many people this day in time who have — who do not own their house, who are renting their house.

    There are too many people, for instance, if you say the owner has the right to strip away the constitutional rights of a person, I’m sure that would go even further and say, what if a person has a mortgage on a house or has a deed to — to secure debt on the house, then he likewise would have the right to protect his interest.

    J. Sewell Elliott:

    So there, we would end up gearing the constitutional rights of citizens of the United States directed to their economic standing, which would be entirely improper.

    Felix Frankfurter:

    Are you maintaining as a matter of law, investigable law that which minute that this is made, in view of whatever relation we have to the property whether in behalf owner or whole owner at this time, it isn’t clear matter of law, he was disempowered and he was not — he did not have authority for enforcing officers to (Voice Overlap) —

    J. Sewell Elliott:

    To break and enter?

    Felix Frankfurter:

    Yes.

    J. Sewell Elliott:

    I — I have — I do not feel that he had the right to break and enter.

    Felix Frankfurter:

    Or are you —

    J. Sewell Elliott:

    As a matter of fact, the brief of the Government I think, conceives that point.

    Felix Frankfurter:

    My question is whether as a matter of law, standing the relations of property that Bridgaman did, you would say that this entitled to get that advice.

    J. Sewell Elliott:

    I — I have no idea that he has the — I do not think that the — the owner has any authority to give to the law enforcement officers the right to break and enter premises when no one is there.

    Felix Frankfurter:

    Well, I’m not talking about the premises in the outset.

    I’m talking — the owner — the owner of a — of a let house who has excellent or good reason of believing its use is that of a still, has he no right of entry?

    J. Sewell Elliott:

    I feel that to hold that would be just as bad as placing it within the hands of law enforcement officers to make the decisions.

    Felix Frankfurter:

    But they don’t own the house.

    J. Sewell Elliott:

    I understand, but there is such a large group of people who have the same interest of ownership such as a mortgagee on a house or the various owners for instance, the United States Government, I would say, is the biggest owner of residential real estate in the — in — of — of any — anyone that we might find and let’s take, although we have other large corporations, let’s take the United States Government.

    If this case is not reversed, then the United States Government through its various agencies would have the right to strip anyone who lives in a house provided by a public authority of the constitutional rights of that individual.

    Felix Frankfurter:

    Well, but you’re stating that to beg the question, if I follow you, don’t you?

    The question in very specifically, whether the owner of premises having good reason to believe that it is being used for a still has no right of entry, nor if he makes a bad guess, he maybe in trouble.

    J. Sewell Elliott:

    When this —

    Felix Frankfurter:

    Even in the immunity clause, he’s fixed so out of — before you sucked his little finger and gave you that conclusion.

    J. Sewell Elliott:

    I do not feel that the owner would have the right.

    Charles E. Whittaker:

    Well, now, isn’t the great distinction between possessing a right of entry and — on the one hand and the right to do it by strong-arm methods.

    J. Sewell Elliott:

    I — I think so and in this particular case, it seems that the Government in their brief, distinguishes between locked doors and whatnot.

    I understand breaking and entering to raise a closed window and not necessarily to break a lock.

    But in this particular case, I think we do have exactly that, strong-arm method.

    And I further think that the evidence clearly shows that there was no intent — the — this landowner, he — what he did just like any other citizen, reported what he thought was a violation of the law and turned it over to the officers for them to do what was required of them.

    And in this particular case, it was required of the officers to obtain a search warrant and not to take it upon themselves.

    As a matter of fact, when they asked for permission, “Can we have permission to go in this house?”

    The owner says, “Well, if what’s in there what I think it is, you can go in.”

    In other words, the matter was in the hands of the liquor officers, not the general enforcement — law enforcement officers.

    This — this owner even though he was the owner, simply was reporting what he thought was a violation of the law to the liquor people just as any other citizen could or would have done in —

    Felix Frankfurter:

    Well, that — that all depends on the answer to Justice Black’s question, what right of summary termination of a nuisance is there.

    By summary, I mean, you don’t have to get any legal process.

    Like Justice Black, that’s even more so.

    J. Sewell Elliott:

    I do not —

    Felix Frankfurter:

    (Voice Overlap) inquirer for what the law is and I — I — one does know that there’s — there’s a good deal of right for summary termination of a nuisance.

    J. Sewell Elliott:

    This Court did not feel that the — that right was — could be given by the owner in the Trupiano case and the Jeffers case and the Lustig case.

    In the Trupiano case, the owner, his name was Kell, K-E-L-L.

    Felix Frankfurter:

    Can we overrule Trupiano in this Court?

    J. Sewell Elliott:

    Insofar as — as — well, you’re — you’re referring now to the —

    Felix Frankfurter:

    Because we overruled it explicitly.

    J. Sewell Elliott:

    No, it was overruled insofar as it concerned searches incident to an arrest, is the language of this Court.

    Felix Frankfurter:

    Yes, but that question wasn’t in Trupiano, the one I’m now putting to you and the one Justice Black puts.

    J. Sewell Elliott:

    Well —

    Felix Frankfurter:

    I should think we ought to be able to get some light on what the limit — what — what the right of summary termination of nuisance is and what the limits of that right (Voice Overlap) —

    J. Sewell Elliott:

    Perhaps, the better example is —

    Felix Frankfurter:

    — just be a right.

    J. Sewell Elliott:

    Perhaps the better example is the Jeffers case.

    In that particular case, the manager —

    William O. Douglas:

    What case was that?

    J. Sewell Elliott:

    That’s the Jeffers case, J-E-F-F-E-R-S.

    William O. Douglas:

    Jeffers, thank you.

    J. Sewell Elliott:

    In that case, the manager made a report and gave the officers permission to go into the hotel room.

    Hugo L. Black:

    What was the ground on — what had he found out at that time?

    J. Sewell Elliott:

    In that — he gave him a key by the way too and permitted them to go in.

    Hugo L. Black:

    But —

    J. Sewell Elliott:

    They had found, in that particular case, there were many indications of — of a violation inside and I believe that case is the case where they had looked through the keyhole.

    Hugo L. Black:

    But suppose — suppose, I’m — I’m asking just to clear these questions — on questions on, because I’m interested in the infer — suppose a hotel manager goes by rooms and has every reasonable ground in the world to believe that the law is being violated in that room at that moment, maybe assault or whatever — whatever it may be, does he have any right at all to go in there without waiting for a search warrant if he’s the manager of the hotel?

    J. Sewell Elliott:

    I would like to distinguish and I think these two cases, the Jeffers and the Lustig bear me out on this.

    When you — in your statement, in the set of facts that you just posed —

    Hugo L. Black:

    Yes.

    J. Sewell Elliott:

    — you say that the law is being violated in that room —

    Hugo L. Black:

    That’s right.

    J. Sewell Elliott:

    — which would indicate that someone is in that room violating the law.

    Hugo L. Black:

    Well, suppose — suppose there was no one there, but there were some way he could reasonably believe beyond any — all doubt that they were — a law was actually being violated in his hotel room that that —

    J. Sewell Elliott:

    In the — in the Jeffers case and the Lustig case, it was held that that was an improper search, even though in those two cases, we have situations where the — where the manager had given his permission, had given keys, had invited them to go and they had reason in one —

    Hugo L. Black:

    But where there circumstances there, sufficient to show the conclusion that I assumed in the question I asked you.

    As I —

    J. Sewell Elliott:

    In —

    Hugo L. Black:

    — recall it, the nearest to your case, I — I maybe wrong, but the nearest evidence to your case was one from out in the west where they smell opium coming from the room.

    I don’t remember.

    I believe that was Johnson.

    J. Sewell Elliott:

    I — I believe that was when they had occupants in the room, but in the Lustig case and the Jeffers case, you’ll find that one is a counterfeiting case and that upon looking through the door, they saw — they saw in there, money on the table and they heard clanking of glass or metal as though something was in operation or may, it had even looked through and gave certain observations to the officers.

    Felix Frankfurter:

    Does it make a difference whether anybody is in or not, if in fact, fumes were emitted which at the outside smelled as — as a still.

    What is the difference between that and the — the narcotics case, opium?

    J. Sewell Elliott:

    I — I think in this particular case, the important thing is, was it incident to an arrest or was there any compelling circumstance — circumstance existing?

    Felix Frankfurter:

    Why do you have to have an arrest if — if something —

    J. Sewell Elliott:

    Because before you go into a residential house or go into somebody’s private premises, you’re supposed to have a warrant —

    Felix Frankfurter:

    (Voice Overlap) —

    J. Sewell Elliott:

    — and it’s not supposed to be left up to the police to decide whether there is sufficient evidence or not.

    Felix Frankfurter:

    But you — but you may go in — you don’t have to have an arrest in order to deal with an — with a patron service violation of law, do you?

    J. Sewell Elliott:

    Well, actually in this particular case, there was no activity in that house, there was no still running — there was no still running.

    There was no activity whatsoever, in this house.

    The house was there and they interpreted the smell coming from the house as the smell of mash.

    That is the sole circumstance that existed.

    Felix Frankfurter:

    Was there any basis for that interpretation?

    Did the — did the entry — did what they found upon entry negative, the interpretation of the external phenomenon?

    Did they — did they — did they find it wasn’t so?

    J. Sewell Elliott:

    I do not think that they can — no, they did not find that it was not so, but I do not think they can take advantage of what they find after they get inside —

    Felix Frankfurter:

    That takes us back —

    J. Sewell Elliott:

    — and that was clearly —

    Felix Frankfurter:

    That takes us back to the question that Justice Black and I was digging some light at.

    Hugo L. Black:

    I was starting to ask you one other which you didn’t explain here, to point out to the question as to whether anyone is there or not.

    Suppose the manager of the hotel went by and he smells smoke coming from the room and had every reason to believe that his room had been set on fire in the hotel [Laughs].

    Will he have a right to go win?

    J. Sewell Elliott:

    That would be a compelling circumstance.

    Hugo L. Black:

    Then — then it gets down to your judgment whether or not, it’s a compelling circumstance.

    J. Sewell Elliott:

    I think that that is the criteria with reference to warrant, the entry without a warrant.

    Hugo L. Black:

    I’m not talking about warrants.

    I’m talking about an owner’s right.

    J. Sewell Elliott:

    Well, I think the owner has a right —

    Hugo L. Black:

    Maybe (Voice Overlap) the same.

    J. Sewell Elliott:

    — to — to keep his property from burning down and to take what — what’s necessary action, but there, there is a compelling circumstance —

    Hugo L. Black:

    And of course, I assume —

    J. Sewell Elliott:

    — which requires him to act.

    Hugo L. Black:

    — I assume if it was true, I don’t know that his property to be forfeited for having a still in it but that would be a — and he knew it was there.

    He’d have some kind of right either to go in there, get somebody else in there on the ground that you couldn’t have any greater waste of your property that have it forfeited to the Government.

    J. Sewell Elliott:

    Well, in this particular case, there are no facts that would indicate that — that his property would forfeitable to the Government.

    I — I think that perhaps the fallacy of considering too much along this line would be that we are thinking only of the rights of the landlord.

    I think that we’ve got to go across the table and think of the property right of the individual in this case.

    Felix Frankfurter:

    But you have to think of the landlord’s right in order to determine whether the entry was lawful at — in order for you to (Voice Overlap) —

    J. Sewell Elliott:

    I — I do not feel that the —

    Felix Frankfurter:

    — of anybody else.

    J. Sewell Elliott:

    I do not feel that the decisions of this Court support that and I — and my interpretation of the Trupiano case —

    Felix Frankfurter:

    Well, I’m suggesting that was overruled over my protest.

    The fact doesn’t make it any delay from overruled —

    J. Sewell Elliott:

    Yes.

    Felix Frankfurter:

    — case.

    J. Sewell Elliott:

    Well, I — that was overruled with reference to the search incident to unrest, denying the suit.

    Felix Frankfurter:

    (Voice Overlap) — then they remained after the overruling.

    J. Sewell Elliott:

    With the Court’s permission, I know —

    Felix Frankfurter:

    May I ask before you sit down.

    Suppose that — suppose people had been found, everything’s the same, except when they entered, people are actually found on the premises with all these still materials, does that make a difference to you?

    J. Sewell Elliott:

    Yes, I — I think perhaps it would.

    Felix Frankfurter:

    And you think that the law —

    J. Sewell Elliott:

    I think — but I think that two things are important there.

    I think the — it’s important to just consider what the officer had reason to believe before the entry?

    Felix Frankfurter:

    I’m talking about the landlord’s smelling this fragrance.

    And if you say that he would — it would make a difference after he called the officers, because I give you permission to enter, if they found people there, you say that would make a difference, then I ask you, how can it in law, make a difference whether the landlord can smell that anybody is preset or merely smells the fumes?

    J. Sewell Elliott:

    Well, I think there, the language of this Court showed that it’s important to consider whether — whether the officers or the landlord or whoever it might be, had reason to believe that someone was in the premises or not.

    I think that is a circumstance that must be properly weighed —

    Felix Frankfurter:

    Well, it’s —

    J. Sewell Elliott:

    — by the Court.

    Felix Frankfurter:

    If that’s so, then we’ve got two courts and say that under the circumstances, that was a reasonable entry.

    That the landlord can make a fine calculation and say, “I must make that sure, somebody is in there.

    If somebody is in there, I can give lead to — for entry.

    If nobody is in there — is in there, I can’t.”

    I can’t imagine the law turns down in such a demand of prophecy on the part of the landlord.

    J. Sewell Elliott:

    There again, it would be hindsight rather than foresight of justifying the entry about what is found within the house, which I do not think that —

    Felix Frankfurter:

    No, there is justification as to the olfactory nerves that he — that he smelled it.

    J. Sewell Elliott:

    That was the only indication of the violation and that has been held not to be probable cause to enter a house without a proper warrant.

    I would like to reserve what time I have.

    Earl Warren:

    You may.

    You may, Mr. Elliott.

    Mr. Erdahl.

    Robert S. Erdahl:

    Mr. Chief Justice, may it please the Court.

    First, Mr. Justice Stewart asked about the orders mentioned that the Court of Appeals did not rely on the silver platter doctrine.

    I just want to point out that it did not — not only did not rely on it, it disclaimed any reliance on it.

    It’s pointed out that the Elkins case was at the time pending here and it does not in particular, forecast the result.

    I should also like to point out that there was no and heard and whatever the silver platter in the District Court’s oral ruling of nine motions to suppress.

    The Court — the District Court pointed to the fact that this house was not a dwelling, not used — as though the dwelling house was not used as a dwelling, rather it was used as a manufacturing establishment that it was Sunday, that there was probable cause.

    Robert S. Erdahl:

    And finally and most importantly, there is a specific finding by the District Court that the owner, Bridgaman, the landlord, told the officers that he had reason to believe that there was a still in his house and not only consented, but asked the officers to go in and see about it.

    In its opinion on rehearing, denying petition for rehearing, the Court of Appeals said they did have in its opinion of affirmance, emphasized — I’ll read it, “In view of the emphasis we — which we’ve placed on the fact that the entry was a Bridgaman’s request, we think it’s appropriate to answer petitioner’s contention that the Court placed too much emphasis upon Bridgaman’s request and the Court alluded to the testimony of Chance, the state revenue agent.

    Question, “And did the owner, Mr. Bridgaman tell you to go in there and see about it and see what was in his house?”

    Answer, “That’s right,” and the Court said, “The trial court so found” that is found the consent and request and that the evidence amply supported the finding.

    Before I leave that, I would like to also point to the testimony of — the further testimony of officer Chance which the Court will find on page 13 of the record.

    This one sentence in his testimony sums it all up very neatly.

    He was asked about why he didn’t get a warrant.

    He said, it was Sunday, “Well, can’t you get a search warrant on Sunday?”

    He said, “I’ve never gotten one on Sunday.”

    “You didn’t make any attempt to get any search warrant, did you?”

    Then Chance answered this — this way, “Well, I didn’t feel no call to get one.

    The man that owned the house, he was there and he told us to go in, in the window” and see what’s — what in there, and that should be — what’s — printing error, what’s what or what was in there, so he went on in.

    Now, that puts the issue here in focus.

    My opponent says that this has — but another case of and a — a police entry into protected premises upon probable cause without more and he — he called the rule of the cases.

    He would have it that — the fact that Bridgaman, the landlord was there and as the District Court found, not only consented, but requested that the officers go in and have no consequence.

    Now, we say that Bridgaman’s presence there and his authorization makes all the difference in the world.

    I feel like I can fairly say that if he had not been present and given his authorization, if the police had on their own gone in, we would not be here today.

    There are a — a couple —

    Earl Warren:

    You mean the search would’ve been invalid?

    Robert S. Erdahl:

    It would have been in the — in this pattern of the Taylor case, the Agnello case, the Jones case, more recently.

    Earl Warren:

    Yes, what’s been in doubt that’s —

    Robert S. Erdahl:

    Jeffers — yes.

    Earl Warren:

    Yes.

    Robert S. Erdahl:

    It — yes, that’s — I suppose a bedrock principle of —

    Earl Warren:

    Well, I just want —

    Robert S. Erdahl:

    — what do you mean, the (Voice Overlap) —

    Earl Warren:

    — by what you said, you wouldn’t be here, did you mean that the search —

    Robert S. Erdahl:

    That’s right, yes.

    Earl Warren:

    — would be invalid.

    Robert S. Erdahl:

    Well, either the United States Attorney wouldn’t have taken the case.

    Robert S. Erdahl:

    The District Court would have suppressed the evidence or if failing all else, the Court of Appeals would’ve reversed a conviction.

    Charles E. Whittaker:

    So the issue here then as I understand you, is limited to the question of whether or not, the presence of the landlord in his consent, these officers or direction to go in makes this search good.

    Robert S. Erdahl:

    That is it.

    And before I get to that, I would like point out — Mr. Justice Black raised questions as to Georgia law on this.

    Hugo L. Black:

    Well, I’m — I didn’t mean merely the Georgia law, I meant the federal laws as reference of forfeiture or any law, I don’t know.

    Robert S. Erdahl:

    Well, under federal law — yes, the — the close in which is still is — is forfeitable.

    The land is forfeitable —

    Hugo L. Black:

    Was there any duty under federal law on the part of the owner to do anything about it?

    Robert S. Erdahl:

    No, not in that way, Your Honor.

    He — his land would be subject to forfeiture though under federal law, if he knew of the use.

    Hugo L. Black:

    You mean if he knew it and did not (Voice Overlap) —

    Robert S. Erdahl:

    Knew of that uses a still and did nothing about it, yes.

    Hugo L. Black:

    Well, then I suppose that would equivalent to a duty.

    Robert S. Erdahl:

    If he wants to save his property.

    John M. Harlan II:

    Well, is that so or does he have to be shown to be an aid or an abater?

    Robert S. Erdahl:

    No, for forfeiture purposes, I think it’s only necessary —

    John M. Harlan II:

    It would now, failure or forfeiture —

    Robert S. Erdahl:

    — that it’d be shown that he know, suffered it to be.

    John M. Harlan II:

    Failure to report —

    Robert S. Erdahl:

    Suffered it — well, failure to report, I’m not —

    John M. Harlan II:

    What statute — what statute of forfeiture?

    Robert S. Erdahl:

    This is the general forfeiture statute.

    Hugo L. Black:

    Is it the one under which they used to seize automobiles?

    Robert S. Erdahl:

    No, that’s a different one.

    Felix Frankfurter:

    But — but it’s the same principle, the seizure of automobiles that are instruments — somebody else’s — as I remember, this Court has held that an innocent man, either for, used for violations of the Volstead Act, the Volstead prohibition law that ever — that were — although the owner of the automobile is innocent of the purposes to which it views, forfeits the automobile, is that right?

    Robert S. Erdahl:

    That’s right.

    There is provision in the law for remission to innocent lien holders, if they satisfy certain requirements.

    William J. Brennan, Jr.:

    Well, Mr. Erdahl, in this very case that the owner, after he smells the strong odor, gone away and done nothing.

    Robert S. Erdahl:

    I was just coming to that one.

    William J. Brennan, Jr.:

    Later, this —

    Robert S. Erdahl:

    In connection with Justice Black’s question —

    William J. Brennan, Jr.:

    — well, the operation still had been discovered, would his property have been forced to federal statute?

    Robert S. Erdahl:

    Under the federal statute?

    William J. Brennan, Jr.:

    Yes.

    Robert S. Erdahl:

    Well, I haven’t looked into the cases on that, Your Honor.

    I don’t know whether mere failure to report would be enough.

    Under — I do know this, however, that under Georgia law, he would be guilty of a misdemeanor.

    There is a — I want to call this —

    Hugo L. Black:

    Guilty of a misdemeanor if what?

    Robert S. Erdahl:

    I’m about to read it, Mr. Justice Black.

    58 Ga. Code 105, I want to give the Court this citation because it’s not in our brief.

    Hugo L. Black:

    You say it’s not in your brief?

    Robert S. Erdahl:

    No, no, sir.

    58 what?

    Robert S. Erdahl:

    58 Ga. Code 105, “Any person who shall let or suffer any other person — persons, firm or corporation to use any premises which he owns or controls for the illegal sale, keeping for sale, manufacture or other — unlawful disposition of the liquors and beverages mentioned in Section 58, 101 and that’s all the — shall be guilty of a misdemeanor.”

    William J. Brennan, Jr.:

    That shall let or suffer?

    Robert S. Erdahl:

    Let or suffer.

    William J. Brennan, Jr.:

    What’s that?

    Robert S. Erdahl:

    Any person to use any premises he owns or controls for manufacture —

    William J. Brennan, Jr.:

    What’s let or suffer?

    Robert S. Erdahl:

    Well, that’s pretty broad language in the statute.

    I — I haven’t looked at the cases under it.

    Suffer, I — I think would probably include —

    Felix Frankfurter:

    There’s nothing about —

    Robert S. Erdahl:

    — allowing him that to — allowing him to continue with knowledge that is being done.

    Felix Frankfurter:

    There’s nothing about it.

    Robert S. Erdahl:

    Suffer, there’s nothing about it.

    William J. Brennan, Jr.:

    So you think, in this instance that this owner, had he turned around after smelling the odor and done nothing further, might perhaps have been guilty of misdemeanor under that Section?

    Robert S. Erdahl:

    He did not thing further about it?

    William J. Brennan, Jr.:

    There’s nothing.

    William J. Brennan, Jr.:

    He walked away after he smelled the odor.

    Robert S. Erdahl:

    Well, I suppose the Georgia law enforcement authorities would’ve allowed him a little time to put a stop to it.

    It takes some steps to put a stop to it.

    That — I — I mean, I don’t think immediately —

    William J. Brennan, Jr.:

    Well, I ask about let or suffer, that —

    Felix Frankfurter:

    I don’t think it can be a status under the statute like that.

    Robert S. Erdahl:

    Sir?

    Well, in addition, again referring to Georgia law, “Any house, any room or structures used for the unlawful manufacture sale — keeping for sale or other unlawful disposition of liquors shall — is declared to be a common nuisance.”

    That Section is cited in our brief, that’s in 58 Ga. Code 109.

    Hugo L. Black:

    Well, that’s a very common —

    Robert S. Erdahl:

    Common nuisance.

    Hugo L. Black:

    — (Voice Overlap) — isn’t it?

    Robert S. Erdahl:

    It’s subject — and the place is subject — the nuisance is subject to abatement, the place is subject to be padlocked.

    Charles E. Whittaker:

    Well, do you understand that one to abate such a nuisance or who has left or suffers premises to be used for an illegal purpose is justified in the use of any means necessary to gain entry or must he resort to legal proceedings?

    Robert S. Erdahl:

    Oh, this reminds me of — excuse me, I may have defer on your question, just a moment.

    Finally, I want to call attention to the Section of the Georgia Code which is most pertinent here and is quoted on page 2 of our brief and it provides that — it’s 58 Ga. Code 106, providing that, “The unlawful manufacture sale or keeping for sale or disposition of liquor contrary to law of state, shall at the option of the landlord work a forfeiture of the rights of any lessee or tenant at the option.”

    I guess, I read that, “Shall at the option of the landlord work a forfeiture of the rights of any lessee or tenant.”

    Earl Warren:

    How does that bear on this particular case?

    Robert S. Erdahl:

    It bears very much, Your Honor, upon Bridgaman’s rights in what he did about them.

    Earl Warren:

    You mean he could just — just go in and forcibly take his — whatever rights he’s got away or does it mean that he has a right to go into court and do the things that are normally done without breaching — breaching the peace or — or the rights of any individual?

    Robert S. Erdahl:

    In the injunction with the rights of landlords which have come down to us in a century back, the right of entry on his premises, right to enter his premises.

    And the specific right given in by Georgia law to forfeit and the — the nuisance provision which I read and in the misdemeanor provision which I read whereby he, had he allowed to continue would’ve been guilty of a crime, this whole bundle of interest, obligations and rights and in Bridgaman, the landlord here, we think did give him the right in the circumstances of this case to go in as he did —

    Earl Warren:

    Could he have gone —

    Robert S. Erdahl:

    — through the window.

    Earl Warren:

    Could he have gone in himself without the authority?

    Robert S. Erdahl:

    I think so — I think so.

    Earl Warren:

    And now, where do we get that authority to do that?

    Robert S. Erdahl:

    I cannot give you a case, Mr. Chief Justice.

    There are cases.

    They’re cited in our brief, page 15, top of the page, involving suits by tenants against landlords for trespass toward whatnot.

    Robert S. Erdahl:

    And everyone in those cases affirms the right of a landlord to enter his premises, to view waste of this Court way, way back into common law.

    Earl Warren:

    To break into — to break into —

    Robert S. Erdahl:

    In waste.

    Earl Warren:

    To break into a house that is —

    Robert S. Erdahl:

    Well, now —

    Earl Warren:

    — is rented?

    Robert S. Erdahl:

    There is a qualification in — the quotation from Tiffany on landlord and tenant which we cited in our brief.

    He says that the landlord has the right to go into his premises to view waste that is to see if waste is being committed, provided at least, that it does not involve a breaking.

    And then there is talking in the Six Carpenters case about the landlord, if he breaks entry, if he makes a lawful entry, then he is guilty of trespass ab initio.

    Earl Warren:

    Well, is a — is opening a bathroom window and climbing in a bathroom window —

    Robert S. Erdahl:

    I think in the circumstance —

    Earl Warren:

    — (Voice Overlap) of the people placing —

    Robert S. Erdahl:

    — of this case, yes.

    And I would like to give the Court a little more of those facts as the — as — as the context, the background.

    Earl Warren:

    You say, yes, you mean yes, it is a breaking?

    Robert S. Erdahl:

    No, I — I do not think it was a breaking by Bridgaman, no.

    Charles E. Whittaker:

    Well, by the —

    Robert S. Erdahl:

    Raising an unlocked window.

    Earl Warren:

    Was it a break —

    Robert S. Erdahl:

    In the circumstances of this case.

    Earl Warren:

    Was it a breaking by anyone?

    Robert S. Erdahl:

    Oh, on the part of somebody else, yes.

    A stranger to the transaction is stranger to the deal.

    Earl Warren:

    No — no.

    Robert S. Erdahl:

    A stranger to the lease.

    Earl Warren:

    In this transaction, in this thing we’re talking about, was there a breaking here?

    Robert S. Erdahl:

    I think not.

    Now, you’re referring to the fact that it was not Bridgaman who raised this unlocked window, but one of the policemen.

    I — it’s true, it — it was one of the policemen who — who raised the window.

    Earl Warren:

    Did they have anymore rights than he had?

    Robert S. Erdahl:

    No.

    Earl Warren:

    Then it’s the same as —

    Robert S. Erdahl:

    We don’t claim anymore right for him than the — than Bridgaman had.

    Earl Warren:

    That is the same as if Bridgaman had done it himself.

    Robert S. Erdahl:

    Right.

    And that’s the crux, the nub of this case —

    Felix Frankfurter:

    Doesn’t —

    Robert S. Erdahl:

    — the entry.

    It’s the — it’s the beginning and — but I — I want to include in the beginning what Bridgaman had seen first before he called the police.

    John M. Harlan II:

    Did they find (Voice Overlap) —

    Robert S. Erdahl:

    And it’s also the end of our problem.

    John M. Harlan II:

    They tried the front doorbell, first?

    Robert S. Erdahl:

    Yes, I — I’ve been trying to give a — the Court a few more facts not mentioned by my opponent in his recital.

    Then it was shortly stated, Bridgaman’s — this is the sentence, “Birdgaman’s church was having a visitation that day and his pastor —

    Hugo L. Black:

    Bridgaman’s what?

    Robert S. Erdahl:

    A visitiation.

    Hugo L. Black:

    Church —

    Robert S. Erdahl:

    You know going after, called on people to ask them to come to church.

    Hugo L. Black:

    I didn’t understand what you’re saying.

    Robert S. Erdahl:

    His pastor asked him to call on a certain family and Bridgaman said, “Well, some new tenants have moved into my house down on the Herbert Smart Road and I will call on him and then I’ll call on this other party.

    He did — he went down to the house and — I think the best thing to do is read it, “So we went down there,” currently on another parishioner is whether —

    John M. Harlan II:

    Where is this?

    Robert S. Erdahl:

    Page 72, excuse me.

    So we went down there to my house to visit these people and they had shades up to the windows and all of the shades was down, but we knocked at the door, nobody come to the door, so I smelled an awful scent around there and I just note what it was by smelling it.

    I smelled it before I got to the house and I walked around the house.

    It has a basement in the bottom and not closed in, just an open basement.

    I looked in there and wasn’t — nothing in there and so, we went on the back and made this other visit.

    And I went to the house and I picked up the telephone and I called the officers and told them what I thought as there.

    And they said, “We’ll — well, if you stay at the house, we’ll be there in 15 minutes.”

    Now, let’s go back to Chance’s testimony.

    Robert S. Erdahl:

    He’s the revenue agent who Bridgaman called, the state revenue agent.

    Chance said when Bridgaman called him, he said that if you —

    John M. Harlan II:

    Where is this?

    Robert S. Erdahl:

    — got there by 5 o’clock — this is page 8, excuse me.

    If you got out there by 5 o’clock, he would carry me and show me a still.

    Chance picked up Harbin, a county policeman who has, under Georgia law, the powers of a sheriff.

    And en — en route, Chance — or Bridgaman told them that he owned the house.

    He went down there to invite the newcomers to church and he found out there was a — that’s the bottom of the page.

    And he found out that there was the still in there and he came back and called us and went with us down there.

    Harbin’s testimony is to the same effect.

    He is the county — the county policeman.

    And then when they got there, the conditions were still the same, nobody there, all quiet around the house, shades down.

    And incidentally, — my opponent had referred to the pictures that are with the exhibits.

    He asks if it’s true, there are interior and exterior views.

    Hugo L. Black:

    I don’t quite hear you Mr. Erdahl.

    Robert S. Erdahl:

    There are interior and exterior views, pictures in the — with the exhibits and they show how — the interior views show how tight the — the shades were drawn and they even showed that there was a shade tucked up over the little glass windows at the — in the upper portion of the front door.

    Everything was closely shaded so that nobody outside could see inside.

    And incidentally, in that connection, I want to say that this is a — obviously, a — a house designed for dwelling, yes.

    It’s a — it’s a modest one-room house — one store, one room — one-storey house appears to be built of cinder block.

    And I want to also point out that this was not a city street.

    This is a — this is a rather secluded location close to this —

    Hugo L. Black:

    Where and what?

    Robert S. Erdahl:

    Outside of Macon, Georgia.

    Hugo L. Black:

    How far?

    Robert S. Erdahl:

    I don’t know.

    The record doesn’t show how far out it was but the house was setback 200 to 300 feet from the road and it — the picture show that it’s a — a wooded tall pines around the house.

    It’s a rather secluded spot and I think that — it’s — that’s obviously the reason Chapman —

    Hugo L. Black:

    Was it — was it used as a dwelling according to the record?

    Robert S. Erdahl:

    It was not, no, by Chapman, this petitioner.

    No, it was used only for a still.

    Robert S. Erdahl:

    That’s the only thing there was in the house.

    It’s a small house, living room, dining room, bathroom, kitchen, a couple of bedrooms off the side, one storey.

    And the still was set up in the living room.

    And with the baths, it was 650 gallon still, the bath held 1300 gallons of mash.

    They had the water — water connections running into the bathroom.

    There was a pump nailed to the dining room floor.

    One of the partitions has been torn out and a bathroom partition torn out, before Bridgaman’s house was pretty seriously damaged.

    William J. Brennan, Jr.:

    Mr. Erdahl, at page 9 of your brief —

    Robert S. Erdahl:

    Well, I hadn’t — excuse me —

    William J. Brennan, Jr.:

    I beg your pardon.

    Robert S. Erdahl:

    — sir.

    Sir, go ahead.

    William J. Brennan, Jr.:

    No.

    Go — go finish.

    I thought I (Inaudible) had you finished —

    Robert S. Erdahl:

    No, please — please do.

    William J. Brennan, Jr.:

    Yes.

    You say that the landlord’s right to enter the circumstances of this case is also supported by provisions of Georgia law which make the operation of an illicit still a nuisance and give the owner a right to immediate possession.

    Robert S. Erdahl:

    Yes.

    William J. Brennan, Jr.:

    I don’t find any reference to any Georgia —

    Robert S. Erdahl:

    No, you won’t find the words “immediate possession” in the statutes.

    William J. Brennan, Jr.:

    But where is the — any statute?

    I don’t see any reference in — in your brief.

    Robert S. Erdahl:

    Well, in — at page 2, I think it was, we refer — we quote the sections giving the landlord the right to forfeit at his option, the rights of the lessee.

    William J. Brennan, Jr.:

    Well, that’s — that’s only —

    Robert S. Erdahl:

    And then — and then 10 — I — I read a minute ago, 10 —

    William J. Brennan, Jr.:

    105?

    Misdemeanor section.

    Robert S. Erdahl:

    Well, looking at that, 109.58 Ga. Code 109.

    William J. Brennan, Jr.:

    Do — do you have that in your brief?

    Robert S. Erdahl:

    It’s the nuisance — we don’t quote it.

    It’s cited.

    Potter Stewart:

    Page 14 (Voice Overlap) —

    (Voice Overlap) —

    Robert S. Erdahl:

    The one that I — I wanted the Court to note was — which is not cited or quoted in our brief is 105, the misdemeanor provision applying to a landlord and suffers or let the premises to be used use for manufacture of liquor.

    Well now, we’ve got them to the house, Bridgaman, Chance and Harbin.

    They walked around, conditions were the same.

    They — they looked around the house for a way to get in and Harbin, the county policeman, found that one of the — saw that one of the windows was unlocked and so he called to the others and he went through the window and here is — here —

    Hugo L. Black:

    Called the others, which other?

    Robert S. Erdahl:

    Bridgaman, the landlord and — and Harbin, the county — Chance, the revenue agent.

    And here is the proof of some putting I think.

    Harbin testifies — you’ll find this at the bottom of page 46 after he testified as to finding the unlocked window.

    “And they’d boosted me up on their shoulders and I went in the house and found this still.I told Chance to go and get some help and they left.”

    Bridgaman, the landlord helped the policemen through the window.

    Earl Warren:

    Suppose Bridgaman hadn’t — hadn’t been there and the law enforcement officers were there and they smelled this mash as they did and went in on their own, would this be a valid search?

    Robert S. Erdahl:

    I said before, Mr. Chief Justice, that we wouldn’t be here if that —

    Earl Warren:

    Alright.

    Robert S. Erdahl:

    — were this case.

    Earl Warren:

    Now, what — what right does the landlord has — what specific right does the landlord have that law enforcement officers do not have?

    Robert S. Erdahl:

    Oh, he has — I — we — we think he has — we start with one basic bedrock uncontested proposition and that is that the landlord has a right to enter of his house to view waste, to collect rent, to make repairs, to stop a nuisance.

    Now, we’re a little bit — we’re having a little trouble here on how —

    Earl Warren:

    How —

    Robert S. Erdahl:

    — how he can exercise —

    Earl Warren:

    Yes.

    Robert S. Erdahl:

    — that right.

    Earl Warren:

    That’s right.

    Also, don’t the — don’t the law enforcement officers have the right to summarily abate the nuisance?

    Robert S. Erdahl:

    No, that takes a lawsuit.

    Earl Warren:

    Oh, it does.

    Robert S. Erdahl:

    If there’s a — the Georgia law statutes provide that, manner of abatements, 72 Ga. Code 201, 202, 30 — 203, provides for suit by — suit for abatements suppression by the —

    Earl Warren:

    Well, of course, there —

    Robert S. Erdahl:

    — Solicitor General of the Circuit.

    That’s why I was called for.

    Earl Warren:

    Of course they — of course they have the right to file suits and abatement, but — I know in other States that they also have — have the right to summarily abate the public nuisance.

    Do they have no — do officers have no such right in — in Georgia?

    Robert S. Erdahl:

    I — I — to mean summarily?

    Earl Warren:

    I mean summarily —

    Robert S. Erdahl:

    You mean house like this, put a padlock on it?

    Earl Warren:

    To a — no I didn’t say anything about padlocked.

    I say that they — if they know there’s a nuisance, public nuisance being committed, do they not have the right to abate that nuisance summarily?

    Felix Frankfurter:

    Take away all the stuff.

    Robert S. Erdahl:

    Well, I have found nothing in the Georgia law on that.

    I — I have found this though, I — I have found this, that where officers see, the Georgia law does require that — were — when officers see contraband.

    There was a case on slot machines, they’re — they’re under duty then in there to take it and I — and — and these officers, once they were inside the house, were under duty to seize this still forthwith.

    Earl Warren:

    But we’re not — we’re not in there —

    Robert S. Erdahl:

    No, we’re not in there yet.

    Earl Warren:

    But I just like to [Laughs] — I’m just trying to see whether — whether the owner has anymore right to summarily abate a public nuisance than public officers of the State of Georgia have?

    Robert S. Erdahl:

    It is our position and in the circumstances of this case what Bridgaman found —

    Earl Warren:

    He also —

    Robert S. Erdahl:

    — is —

    Earl Warren:

    — found the same thing and then —

    Robert S. Erdahl:

    Bridgaman has found it first and he called the police.

    Earl Warren:

    Yes.

    Robert S. Erdahl:

    The police didn’t call him.

    Earl Warren:

    The police were there though.

    Robert S. Erdahl:

    He called the police and although Mr. Elliott would minimize this, I think that Bridgaman was concerned about his house.

    He — he —

    Earl Warren:

    Well, let’s assume it was —

    Robert S. Erdahl:

    — took the police there and he took them there.

    Why?I think he took them there.

    Robert S. Erdahl:

    It’s fair for me to say from this record that he took them there to repossess his house and kick these people out.

    Felix Frankfurter:

    Well, Mr. Erdahl, if he has the right and it seems to me the question that the Chief Justice have put to you several times, in — in the crucial question in this case, namely (a) has the landlord the right loosely speaking to abate the nuisance or at least to find out what’s going on.

    Robert S. Erdahl:

    Yes.

    Felix Frankfurter:

    And if he has that right, he can certainly enforce it —

    Robert S. Erdahl:

    Call —

    Felix Frankfurter:

    — (Voice Overlap) — somebody else.

    Robert S. Erdahl:

    Yes.

    Felix Frankfurter:

    And —

    Robert S. Erdahl:

    That’s our —

    Felix Frankfurter:

    If — if he — if he has that right, then we can’t go into his motives and find whether his (Inaudible) legal or whether he wants to protect his property.

    Robert S. Erdahl:

    No, no —

    Felix Frankfurter:

    He might —

    Robert S. Erdahl:

    — fairly —

    Felix Frankfurter:

    — might be a great believer in (Inaudible) and yet —

    Robert S. Erdahl:

    Yes.

    Felix Frankfurter:

    — want to protect his property.

    Robert S. Erdahl:

    And we — we — our position is that he did have the right summarily to go in by the best means he could find and —

    Earl Warren:

    Well, what I’d like to know is what — what specific statute or what specific law do you rely on to give him the authority to go into the house, where –through — through a bathroom window, in order to abate a nuisance if the law enforcement officer could not do the same thing?

    Robert S. Erdahl:

    Well, I think the landlord’s rights of entry —

    Earl Warren:

    Well, I know but I’m — what — what —

    Robert S. Erdahl:

    — are — are greater.

    Earl Warren:

    Well, what do you —

    Robert S. Erdahl:

    I —

    Earl Warren:

    Where — what do you rely on to say that they are greater?

    That’s what I want to find.

    Robert S. Erdahl:

    I’m relying —

    Earl Warren:

    I’m not going to argue — I don’t want to quarrel with you, I want to know the law in which you rely and I’m going to read it.

    That that’s — that’s all.

    Felix Frankfurter:

    Is it —

    Robert S. Erdahl:

    Well —

    Felix Frankfurter:

    — Tiffany on property or is it —

    Robert S. Erdahl:

    Yes.

    That’s it (Voice Overlap) —

    Felix Frankfurter:

    — or the provision of the Georgia Code, which is it?

    Robert S. Erdahl:

    No, we — we find nothing in the Georgia Code —

    Felix Frankfurter:

    Then you’re — you’re relying on the —

    Robert S. Erdahl:

    — on that.

    Felix Frankfurter:

    — general law of property of an entry —

    Robert S. Erdahl:

    That’s right.

    Felix Frankfurter:

    — of a landlord to the premises.

    Robert S. Erdahl:

    That’s right.

    Hugo L. Black:

    Have you looked up the cases —

    Robert S. Erdahl:

    I was about —

    Hugo L. Black:

    — have you looked up the cases in Georgia on that subject?

    Robert S. Erdahl:

    Yes, we’ve — we’ve looked at it and couldn’t find it.

    Hugo L. Black:

    And you have not found it.

    Robert S. Erdahl:

    Sir?

    Hugo L. Black:

    And you have not found it?

    Robert S. Erdahl:

    Yes, yes.

    We quote — we quote Tiffany, “He may enter, the landlord may enter to view waste, that is to determine where the waste has been committed, provided that this does not involve the breaking of windows or doors — provided at least that this does not involve the breaking of windows or doors or to post a notice to deny him liability under mechanic lien laws and so forth.”

    He can — well, let’s leave officer and so forth.

    He may no doubt enter without being guilty of trespass for the purpose of complying with police and sanitary orders and regulations.

    And he will generally be exempt from liabilities — ability for acts required by the state or municipal authority

    Felix Frankfurter:

    Assume he must have given some citations, are any footnotes to that text in Tiffany?

    Robert S. Erdahl:

    Oh, yes (Voice Overlap) —

    Hugo L. Black:

    The nuisance?

    Alright.

    Robert S. Erdahl:

    And we’ve got — we’ve got —

    Felix Frankfurter:

    That for our —

    Robert S. Erdahl:

    — other cases.

    Felix Frankfurter:

    — in other States, but there’s no Georgia case, is that it?

    Robert S. Erdahl:

    No.

    Felix Frankfurter:

    You seem to be — you seem to be, what shall I say, reluctant or inhibited?

    We — from I’m speaking for myself.

    It’s a long time since I knew any property law and I want enlightenment.

    Robert S. Erdahl:

    The same is true for me too, Mr. Justice.

    We’ve got these cases cited on — we don’t have — there’s not a Georgia case among them.

    Felix Frankfurter:

    How about some sister states?

    Robert S. Erdahl:

    California, Illinois, D.C., New York.

    There is another case cited in our brief, Martin against Medlin, dealing with implied covenants in a lease hold the State.

    There, it must be used for the purposes for which it was rented.

    It must be — and certainly and it cannot be used unlawfully or for an unlawful purpose.

    That particular case involved a party house.

    Earl Warren:

    Did it involve a search and seizure?

    Robert S. Erdahl:

    No, it did not.

    Earl Warren:

    What was in those cases involve searches and seizures by the — by the landlord?

    Robert S. Erdahl:

    Well, all I can say on the basis of my reading of the cases is that they sustained in suits by tenants against landlords.

    Earl Warren:

    They sustained what?

    Robert S. Erdahl:

    They — the cases sustained — these are cases — these are suits by tenants against landlords and they sustained the right of the landlord to enter.

    Now, there’s — is one — they — they don’t however set forth, the mode of entry involved by the landlord, which was claimed to be wrong against the tenant.

    Felix Frankfurter:

    Well, they couldn’t be —

    Robert S. Erdahl:

    The basis of the lawsuit —

    Felix Frankfurter:

    They couldn’t be invitations if I won — they couldn’t be cases where the tenant invites the landlord —

    Robert S. Erdahl:

    Certainly not — certainly not, otherwise, he maybe suing.

    Felix Frankfurter:

    But there — there must be cases where the tenant, did he consent —

    Robert S. Erdahl:

    Yes.

    Felix Frankfurter:

    — to begin with.

    Robert S. Erdahl:

    The — the right and this is recognized in the law.

    The right of the landlord to enter implies the right to enter against the will of the tenant.

    Earl Warren:

    Do you have any cases that involve buildings where the entry is the equivalent of — of opening a window, a bathroom window and going in to the place?

    Robert S. Erdahl:

    Quotes that I have found to that is in the allegations in White against Thurber, which is cited —

    Earl Warren:

    In the allegations you say?

    Robert S. Erdahl:

    In the allegations of the plain — of the plaintiff tenant.

    In White against Thurber, a New York case, cited at page 15 of our brief, forcibly and wrongfully against the will of the plaintiff, entered upon the premises and took down the wall — down the wall.

    Earl Warren:

    Well, what — what happened there?

    Robert S. Erdahl:

    Well, the — the landlord was directed by the city to do something about this wall, so he went in and did it.

    Earl Warren:

    Well, he had — he had the authority of the law behind it to go in and do that specific act, didn’t he?

    Robert S. Erdahl:

    Well, the — the authority had — the direction of the law didn’t tell him how to go about it.

    Now —

    Hugo L. Black:

    May I ask you what provision of the Georgia — I summed up and got the Georgia Code, according to your citation.

    They sent me to code on evidence, that’s the number of which you referred.

    What’s — what —

    Robert S. Erdahl:

    Title?

    Hugo L. Black:

    — title of the Georgia Code is it that I can find?

    Robert S. Erdahl:

    Well, there are different titles (Voice Overlap) —

    Hugo L. Black:

    That says — you have at 58 Ga. Code.

    Robert S. Erdahl:

    58 Ga. Code, the provisions on nuisances, misdemeanor and the right of the landlord to forfeit —

    Hugo L. Black:

    I think they —

    Robert S. Erdahl:

    –are on 58.

    Hugo L. Black:

    I think they made a mistake, they sent me 38 [Laughs], you said, 58.

    Robert S. Erdahl:

    58, title 58.

    Hugo L. Black:

    Title 58.

    Robert S. Erdahl:

    Title 58 and the provision on manner of abating nuisances are in Title 72.

    Felix Frankfurter:

    Mr. Erdahl, you don’t seem to argue — I hadn’t — I just flipped your — the pages of the brief and I therefore, do not know what’s in it.

    But you don’t seem to argue on the basis of the case within this Court that the question of search is a question of the unreasonableness under — of the search.

    And therefore, I should think as one is not sympathetic with those cases, but taking them as the decisions of this Court, I don’t see you’re arguing on — argue that it could hardly redeem the non-reasonable search if a policeman thought that the landlord authorized him to enter.

    Robert S. Erdahl:

    Well, I — I haven’t had a chance to get that out yet —

    Felix Frankfurter:

    Alright.

    Robert S. Erdahl:

    — Mr. Justice.

    Earl Warren:

    Is that argued in your brief?

    Robert S. Erdahl:

    Well, yes — yes —

    Felix Frankfurter:

    Where?

    Robert S. Erdahl:

    — in this way that —

    Earl Warren:

    Where was it?

    Robert S. Erdahl:

    — under all the circumstances, this was a reasonable search.

    Felix Frankfurter:

    Well, I know, but I mean to be more specific.

    Robert S. Erdahl:

    On the basis of the rights of the landlord?

    Felix Frankfurter:

    I’m suggesting a line of argument with which, as I’ve said, I’m not sympathetic but might respect, if we’re going to take the starting point of the decisions today.

    Robert S. Erdahl:

    Well, on the matter of reasonableness and of course, this is the — this is the — of the state officers and of course, this is the test under Elkins.

    Bridgaman, the landlord took them to his house, he helped them through the window, he knew what was in there and obviously, he wanted to put a stop to it.

    I think it’s fair to say that he was interested in repossessing his house and it seemed to it that it was to be — the wasted any further.

    Earl Warren:

    You say he knew what was in there —

    Robert S. Erdahl:

    He said he did.

    Earl Warren:

    — did he know any — did he know anymore than the officers themselves knew?

    Robert S. Erdahl:

    No.

    He said, “I know of what was in there by smelling it” and they smelled the same thing.

    Hugo L. Black:

    Well, in the case you argued, Mr. Erdahl, Johnson —

    Robert S. Erdahl:

    Yes.

    Hugo L. Black:

    — sometime ago.

    Robert S. Erdahl:

    Yes, sir.

    Hugo L. Black:

    This Court had that question that — do you think that in — in connection with the smell of opium?

    Robert S. Erdahl:

    Yes, sir.

    Hugo L. Black:

    And it was held that odor could be enough to make a search.

    Robert S. Erdahl:

    Yes, sir.

    Hugo L. Black:

    But —

    Robert S. Erdahl:

    On a warrant.

    Hugo L. Black:

    — if you got a search warrant —

    Robert S. Erdahl:

    On a warrant.

    Hugo L. Black:

    — than you should present that to the judge or the magistrate, he might give a search warrant.

    So that so far as this case is concerned, it’s against you is it not, unless you do depend on the right of the landlord —

    Robert S. Erdahl:

    Right.

    Hugo L. Black:

    — to do what was done.

    Robert S. Erdahl:

    Right.

    And that is precisely the basis on which we do defend it, Your Honor.

    I have said twice that if this had been a junket by these officers as in the Johnson case or as in the McDonald case, on their own without more, we wouldn’t be here.

    Hugo L. Black:

    Well, do you think the law of Georgia is what controlled as to whether the landlord had a right —

    Robert S. Erdahl:

    Well, I think —

    Hugo L. Black:

    — to do this?

    Robert S. Erdahl:

    I think the law of Georgia is very important here —

    Hugo L. Black:

    — well, that’s just been shown —

    Robert S. Erdahl:

    — because part of the picture of the reasonableness of what was done.

    Now, we — we cannot assume on this record that these officers would have gone —

    Hugo L. Black:

    Well, I assume that there’s a valid law of Georgia, which authorizes a landlord to do that under these circumstances and that — that settled the question of reasonableness, isn’t it?

    Robert S. Erdahl:

    Well, the — the Georgia law —

    Hugo L. Black:

    It might not settle it under the federal law.

    It might conceive of them, they might not, that’s the reason I asked you because you’re defending on Georgia law as to that right?

    Robert S. Erdahl:

    Well, there are Georgia statutes which are relevant on this question of reasonableness which I had related.

    They’re part of the total picture particularly as the nuisance provision and — and particularly under the statute on — on Bridgaman’s rights as a landlord.

    He obviously thought that he had a right to go in as he did.

    Hugo L. Black:

    Would that make a difference?

    Robert S. Erdahl:

    I think it’s part of the picture of reasonableness and he — and the officers obviously thought that he had a right to allow them to go in, to tell them to go in.

    That’s — that’s clear on this record.

    And so as Mr. Justice Frankfurter points out, it boils down to whether this was reasonable action.

    And we say it was — it was in principle and in substance, an entry by the landlord in the assertion of his rights.

    Hugo L. Black:

    That brings you back to where they had the right, doesn’t he?

    Robert S. Erdahl:

    Yes.

    Hugo L. Black:

    I would find it a little difficult —

    Robert S. Erdahl:

    That’s correct.

    Hugo L. Black:

    Now, I find —

    Robert S. Erdahl:

    That’s correct.

    Hugo L. Black:

    — it a little difficult to say it was reasonable if he — or either one of them to do it, if it’s against the law for him to do what he did.

    Robert S. Erdahl:

    Well, I’m sure that — that the landlord —

    Hugo L. Black:

    (Voice Overlap) — in law, one state or even the state of the Federal Government.

    Robert S. Erdahl:

    I’m sure that the landlord, Bridgaman in this situation, had he knocked at the door and hadn’t been opened to him, which is inconceivable since all there was in the house was a still.

    He could’ve said, “Get out here.

    Move!

    You’re evicted.”

    Earl Warren:

    Suppose he had said, “No, we won’t get out.”

    What could he do then?

    Robert S. Erdahl:

    Well, he’d have to go to court.

    Earl Warren:

    That’s right.

    Robert S. Erdahl:

    But his mouth would not be shut as to what he saw in there, the still.

    Earl Warren:

    But you’re talking about he has the right to go there and evict them.

    Robert S. Erdahl:

    Yes.

    Earl Warren:

    Now, the Georgia law, as far as I can gather from you doesn’t — doesn’t provide that that he has a right to go there and either summarily evict them or to summarily abate the — the nuisance or to do anything else.

    He has certain rights of — of forfeiture.

    He has certain rights of entry which he can —

    Robert S. Erdahl:

    Well —

    Earl Warren:

    — if he can’t get peaceably, he can get through a —

    Robert S. Erdahl:

    But —

    Earl Warren:

    — through a writ.

    Robert S. Erdahl:

    Yes.

    Earl Warren:

    And he has maybe other rights too, he has a right to inform the police, but does he have the right to go and climb through a closed window of the bathroom in order to look into that house and search it to see if there is any violation of law.

    Now, where is your Georgia law for that?

    That’s the basis (Voice Overlap ) —

    Robert S. Erdahl:

    The Georgia law on that is the — is the common law.

    There is no — the — I don’t — I am — we have found nothing in the Georgia law giving a landlord the right to go through a window.

    Earl Warren:

    Have you found it in —

    Robert S. Erdahl:

    But he —

    Earl Warren:

    — any of these statements?

    Robert S. Erdahl:

    But he has the right that is centuries old to enter his property, to view waste to — to collect rent, to make repairs, to stop a nuisance.

    That’s one of the situations in which Tiffany says, “He has a right to entry — enter.”

    And certainly —

    Felix Frankfurter:

    Mr. Erdahl —

    Robert S. Erdahl:

    — there was a nuisance here, a very grievous nuisance.

    Felix Frankfurter:

    Could you forgive me for saying so, I do not think you have yet, even what you’ve just said, argued on the basis of this Court’s decisions regarding search and seizure.

    It is not a course of decision that every entry without a warrant is presumptively an unlawful entry.

    Robert S. Erdahl:

    Right.

    Felix Frankfurter:

    That is not the line of reasoning that this Court has taken.

    Robert S. Erdahl:

    That was said even in Trupiano.

    Felix Frankfurter:

    It has dealt with unreasonable search as the affirmative authorization.

    Unreasonable search isn’t the exception to the demand for a warrant.

    Otherwise, the cases wouldn’t be — be what they’ve been that even if there was time to get a warrant, it doesn’t matter.

    Therefore, the question isn’t — the question is whether in — under all the circumstances, this was an unreasonable thing to do.

    Robert S. Erdahl:

    Right.

    Felix Frankfurter:

    And if the landlord thought he had the right to do, I do not see and it is not a — isn’t on egregious assumption, it isn’t defensible assumption.

    It’s one that one has controversy about as to — to the extent of a landlord’s power.

    I don’t see how he can argue it’s unreasonable, because he might be wrong as to Georgia law.

    Robert S. Erdahl:

    Right.

    Well, you’ve taken the words out of my mouth, Mr. Justice.

    Felix Frankfurter:

    Well, I’ll give them back to you.

    [Laughter]

    Robert S. Erdahl:

    And while we don’t cover this in our brief, I think I ought to touch on it.

    Let us suppose — let us suppose that Bridgaman exceeded his rights in view of the discussion here, I think I better touch on this.Let us suppose that Bridgaman exceeded his rights when he, not because he enters, he had the right to enter and he had the right to enter against the will of the tenant.

    But he exceeded his rights in the mode of entry, in the mode of entry.

    That at most, would be a technical trespass against the rights of this man, Chapman.

    William J. Brennan, Jr.:

    Is that where this window partly opened or —

    Robert S. Erdahl:

    No, it doesn’t appear that it was cracked at all, it was unlocked.

    All the other windows were locked.

    William J. Brennan, Jr.:

    He assumed it was fully closed, but unlocked, is that it?

    Robert S. Erdahl:

    Right.

    And I assume further that the reason they could see it was unlocked was because the shade, you know, normally is on the inside of the locked window.

    Felix Frankfurter:

    Well, would it make a difference if the window was opened because even open windows would (Inaudible) go in?

    Robert S. Erdahl:

    No.

    Felix Frankfurter:

    — when he cannot go in.

    Robert S. Erdahl:

    No.

    Felix Frankfurter:

    No part of invitation —

    Robert S. Erdahl:

    And as that —

    Felix Frankfurter:

    — on a window that — that you have to lift.

    Robert S. Erdahl:

    And that — that, I agree.

    And as I’ve said, this was in substance and in principle, an entry by Bridgaman.

    But let us assume that he overstepped his rights in the manner in which he exercised his rights.

    The cases in this Court had not allowed the admissibility of evidence to turn on such technical wrongs, civil wrongs.

    I refer to Burdeau against McDowell, the case in which McDowell’s papers were taken out of his office by private persons without his authorization and the Court said that — and they were turned over to the United States Attorney for prosecutions, for presentation to agree in jury.

    The Court said, “We’re not going to stop to consider the wrong done to McDowell or what his rights or remedies maybe against the wrongdoer.”

    In the McGuire case, the agents had a warrant, search warrant, for liquor and when they executed the warrant, they kept to court and destroyed all the rest and it was claimed that this made them trespasser ab initio, because the destruction, their act of destroying the liquor was illegal and the Court agreed to before it and oppressed it.

    But the Court said, “This doesn’t affect the validity of the search for and the seizure of and retention of the Court be kept.”

    They said that was valid, that was distinct from the civil wrong, the wrong done in destroying.

    And more recently, in On Lee, the Court reiterated that principle.

    It was their claim that you recall, that was the case of the informer who went in wired the sound, radio transmitter into On Lee’s Laundry and engaged them in conversation, he was a friend of On Lee and On Lee made the incriminating statements, which were picked up on the radio and heard by an agent outside who had the receiving sense.

    And it was contended there that on — the informer was either a — a trespasser ab initio or he was a trespasser when he went in, because the entry was fraudulent as against On Lee.

    And the Court said there that the McGuire case controls the question and that what — whether — whether the informer’s conduct was unlawful or not, this did not affect the Government’s right to use the evidence.

    And I think that this case is an even stronger case for the application of that principle because there, the informer who was guilty of betraying his friend’s confidence was acting under the auspices of agents who sent him in wired for sound.

    Here, the officers wrecking under the auspices of the landlord who had no ulterior motive, whatever.

    Earl Warren:

    Was that case a public place — a public place of business?

    Robert S. Erdahl:

    Yes, it was.

    Earl Warren:

    They walked in through an open door that the public had —

    Robert S. Erdahl:

    That’s true.

    Earl Warren:

    — had the right to go into and —

    Robert S. Erdahl:

    That’s true.

    Robert S. Erdahl:

    But this was Bridgaman’s house and he had rights of entry as a landlord.

    Now, I think we can test — test the question this way, test the principle.

    Supposing — let us suppose that Bridgaman in good faith, on his discovery, had resorted to self-help or — or had gone and gotten some of his friends to help him and he and his friends went into the house the same way.

    There would be — Chapman would have absolutely no right to complain of his discovery — of Bridgaman’s discovery of his Chapman’s still, in Bridgaman’s house.

    And Bridgaman would be free to — to testify about it, testify as to what he saw at the still.

    Potter Stewart:

    Well under the case, that’s —

    Robert S. Erdahl:

    That’s under —

    Potter Stewart:

    — that’s private — that’s true of any private individuals —

    Robert S. Erdahl:

    That’s right.

    Potter Stewart:

    — (Voice Overlap) the owners.

    Robert S. Erdahl:

    That’s right.

    Now —

    Potter Stewart:

    That had — what you’ve just said doesn’t depend on — doesn’t — doesn’t stand from the fact that Bridgaman was the owner of this house, but just that he was not an officer, isn’t that true?

    Robert S. Erdahl:

    Well, yes.

    It wouldn’t make any difference here if had been a stranger to the house, to the lease.

    That’s right.

    Potter Stewart:

    A burglar broken into the house —

    Robert S. Erdahl:

    Yes, a burglar, sure.

    Potter Stewart:

    — he could’ve testified.

    Robert S. Erdahl:

    Sir, I agree — I agree.

    Potter Stewart:

    Yes.

    Earl Warren:

    But you want us to decide it on that basis?

    Robert S. Erdahl:

    Let us further suppose that — well, of course, it would’ve been foolhardy on Bridgaman’s party to go in himself.

    He might’ve subjected himself to danger.

    The moonshiners are not very nice people.

    He might have been (Inaudible)

    So what is he — what he did he do?

    He did the — a person, he did — he did the thing that any natural, normal, law abiding person would do.

    He went to get the police.

    He went to get the police to protect him and to aid him in the exercise of his rights.

    Robert S. Erdahl:

    And when they got there, he, as I said before, helped boost Harbin on his shoulders and threw the window.

    Now, let’s suppose —

    Charles E. Whittaker:

    You might just —

    Robert S. Erdahl:

    As a matter of fact, Bridgaman did testify to like effect as the officers, as to what he saw in the house.

    After Harbin got in, unlocked the door, Bridgaman went in and he said there, it was all piled up in the living room.

    That’s all there were, that was in this house, that — that still and those mash beds, but to get back.

    Let — let’s suppose that when they — when they got to the house, the officers — and Bridgaman says, “Go on in” and the officers emerged and said, “Well, I don’t know of whether we can go in, but you can go in or maybe you can go in as landlord.”

    And let’s suppose, instead of Harbin being boosted through the window, Bridgaman had been boosted through the window.

    Now, I don’t — he then had — it was his house, he had been boosted through.

    He could have then opened the door, called the officers in and really have the same situation has actually occurred here.

    Charles E. Whittaker:

    Would that have been a good search then?

    Robert S. Erdahl:

    I think so.

    Charles E. Whittaker:

    He might be just (Voice Overlap) —

    Robert S. Erdahl:

    I think so, the landlord going into his own house not withstanding that he was — had the aid and the protection there of the — of — of the police and not withstanding that he and they may have had in mind to — to seize a still and — and catch a moonshiner.

    I think that makes no difference.

    Now, the short of it is, I don’t think that this — the validity of this entry and that’s the beginning and the end of our problem.

    I don’t think its validity should turn on who went in the window first.

    Now, Mr. — finally, Mr. Elliott said that, I adverted to this — the decision which we asked for here, putting the — putting tenants to the — at the mercy of landlords.

    Well, that is not so at all and we had an answer to such a suggestion, a very short time ago in the Abel case.

    The — I think we can depend upon the federal courts and upon this Court to be alert, to prevent any abuse of the rights of landlords to enter and to take in — enter their premises and to take in police with them.

    If there’s collusion to circumvent constitutional restrictions on law enforcement, then it will be time to call a halt — halt and those matters, if they should arise, should — will depend upon the evidence and the concrete findings in such a situation.

    Earl Warren:

    Isn’t that case turned on the consent of the — of Abel to — to let the owner in?

    Robert S. Erdahl:

    The consent of Abel to —

    Earl Warren:

    Yes —

    Robert S. Erdahl:

    — let this owner.

    Earl Warren:

    Yes.

    Robert S. Erdahl:

    To let the owner in?

    Earl Warren:

    That’s right.

    Robert S. Erdahl:

    I don’t understand.

    Earl Warren:

    Well, I thought in Abel, the — the Court said that — that he had consented to them coming there and taking those let material out of the waste basket.

    Robert S. Erdahl:

    Oh, yes sir.

    Earl Warren:

    Oh well —

    Robert S. Erdahl:

    Two segments to Abel.

    The — the wastebasket part and the earlier part which occurred when he was arrested by the immigration officers.

    Earl Warren:

    Yes, but when he was arrested by the immigration officers, that wasn’t through the — through the proprietor of the hotel.

    Robert S. Erdahl:

    Oh, no.

    Earl Warren:

    That —

    Robert S. Erdahl:

    No.

    Earl Warren:

    — they came there with administrative warrant.

    Robert S. Erdahl:

    That’s right.

    That’s what —

    Earl Warren:

    But —

    Robert S. Erdahl:

    I think —

    Earl Warren:

    — the other things — the other things that involved the — the landlord as I recall it, there were done according to the Court with his consent.

    Robert S. Erdahl:

    In Abel?

    Earl Warren:

    In Abel.

    Robert S. Erdahl:

    I don’t recall that the landlord, the hotel keeper, the innkeeper —

    Earl Warren:

    The hotel.

    Robert S. Erdahl:

    — had anything to do with it.

    Earl Warren:

    The hotel, it was a hotel.

    Robert S. Erdahl:

    Had anything to do with it.

    Felix Frankfurter:

    If they entered his room.

    Robert S. Erdahl:

    Oh, oh, yes.

    Yes.

    I would — that’s why — yes, the wastebasket in part of the — yes, but I mean on the entry.

    I don’t think the —

    Earl Warren:

    The landlord —

    Robert S. Erdahl:

    — the hotelkeeper.

    Earl Warren:

    — didn’t have anything to do with the entry.

    That was done by —

    Robert S. Erdahl:

    That’s right.

    Earl Warren:

    — that was done by the administrative crew and the administrative warrant gotten by the — gotten by the immigration authorities on the information of the FBI.

    Robert S. Erdahl:

    Yes.

    The FBI —

    Earl Warren:

    I don’t know how to turn here?

    Robert S. Erdahl:

    — turned it over to —

    Earl Warren:

    I was outrageous.

    Robert S. Erdahl:

    Well, I — I used Abel, Mr. Chief Justice, only in answer to Mr. Elliott’s suggestion that the decision we asked for here would open wide the opportunities or allusion between landlords and police whereby, they could snoop and get evidence on tenants and landlords that walk in, take the police with them.

    I say that only for the proposition that it — those cases should be taken cared of, if they should arise and on the basis of the particular evidence because after all, as Mr. Justice Frankfurter suggested a while ago, “In all these questions, you always come back to the question of reasonableness, in all the circumstances.”

    Felix Frankfurter:

    Very generous of me to make that suggestion, wasn’t it?

    Robert S. Erdahl:

    Well, I intended to get to it Mr. Justice [Laughs] —

    Felix Frankfurter:

    I don’t mean generous to you, I mean generous to the idea.

    Earl Warren:

    Mr. Elliott.

    J. Sewell Elliott:

    May it please the Court.

    I think we have discussed the number of aspects in all of the aspects of this case.

    I do however think, it is most important to consider that we must construe the rights of a tenant in this case, as opposed to the rights of a homeowner.

    And I do not think that because a man rents his house that he should use — lose any of his constitutional rights such as under the Fourth Amendment to contest or to ask that certain evidence be suppressed, simply because, he is the tenant in the house, rather than the owner.

    I cannot — that does not set well with me.

    I — I’m wondering if this case is not reversed.

    If the house is owned by the United States Government, if the federal agents couldn’t just go in on the same basis that the Government claims that Bridgaman can — could go in under this case.

    And would it not be stripping away the individual rights of those tenants in the various housing projects throughout the country.

    I — I think that it is — would be too far reaching and would really be a question that this Court is not going to allow, the rights of individuals to be stripped away in that manner.

    Hugo L. Black:

    May I ask you.

    Have you cited any cases which showed — tell the — what is the Georgia law with reference to the right of a landlord to enter a house, if he finds that the law had been violated in it, in a way that may entail some kind of guilt and — and put some kind of guilt on him?

    J. Sewell Elliott:

    Alright.

    I have — I’d like to refer to the two statutes and I think that’s all there is under Georgia law that we’ve already referred.

    Hugo L. Black:

    No cases of any kind?

    J. Sewell Elliott:

    58 Ga. Code 109.

    Hugo L. Black:

    I have that code.

    J. Sewell Elliott:

    It — it says — it reads as follows, “Common nuisance, places defined as the following are hereby declared to be common nuisances and maybe abated as such upon complaint of the Attorney General or the Solicitor General of the circuit or any citizen or citizens of the county.”

    J. Sewell Elliott:

    And then it goes on and refers to a room used for the manufacture of unlawful — unlawful manufacture of whiskey.

    Hugo L. Black:

    So that this was, if it was being used for that purpose, a nuisance under Georgia law.

    J. Sewell Elliott:

    Yes, in other words, a person, a landlord or any other person must go into court if–

    Hugo L. Black:

    Now —

    J. Sewell Elliott:

    — they want to abate.

    They cannot break and enter either under the Georgia law as it —

    Hugo L. Black:

    And I think —

    J. Sewell Elliott:

    — stand.

    Hugo L. Black:

    Suppose he had known that this was being used for that purpose and had not reported it, what would’ve been his liability under Georgia law for that nuisance?

    J. Sewell Elliott:

    I think it’s very possible that the Court would consider or in any action to takeaway his property, to condemn and takeaway his property, I think they could consider that factor.

    Hugo L. Black:

    Well, I have before me, one of the cases cited.

    It says, “They have considered it and having reached the conclusion that he had knowledge of it, that they had refused to let his house be unpadlocked when it was padlocked as a nuisance under the statute.

    That’s the — under the 96 Ga. Code 802.

    Is — is that your understanding of the law?

    J. Sewell Elliott:

    That is, in that particular case, it seems —

    Hugo L. Black:

    Well —

    J. Sewell Elliott:

    — that the owner —

    Hugo L. Black:

    — is it your understanding of the law that —

    J. Sewell Elliott:

    It seems that —

    Hugo L. Black:

    — that a guilt and knowledge of the use of his premises by landlord, use of his premises for manufacturing liquor, would subject his property to seizure by the State of Georgia, if he knew about it and — and made no report of it.

    J. Sewell Elliott:

    I can say that it was subjected under the federal laws.

    I —

    Hugo L. Black:

    Under the federal rule.

    J. Sewell Elliott:

    — I cannot reply under the state — state law.

    Hugo L. Black:

    Have you then — have either one of you cited the federal statute under which that would be the case?

    J. Sewell Elliott:

    No, not — not in our brief.

    Felix Frankfurter:

    You say it would be forfeitable under federal law?

    J. Sewell Elliott:

    Under federal law.

    It could be if it’s used for illegal purposes, it could be forfeitable and it —

    Hugo L. Black:

    Was it not?

    J. Sewell Elliott:

    And — and in an instance, where a landlord fails to report something, he could be therefore, considered a conspirator to the extent of entering into the operation or harboring a criminal activity and therefore subject — subjected to the penalties that would come to anyone who participated in any such action.

    I would also like to refer to the —

    Charles E. Whittaker:

    May I ask you please sir, as he — may I ask you please, sir?

    Has he discharged his full duty when he has made the report?

    J. Sewell Elliott:

    Yes.

    I believe that in this particular case, what we have is this.

    Now — let — let me make one or two background comment.

    The Government says they could’ve entered to collect rent.

    Well, now I — I don’t know what that’s got to do with this case.

    In — in other words, a man — a landlord goes to collect his rent and he knocks on the door and nobody’s there, what is he going to do?

    Go into bathroom window and find the pocketbooks and collect his rent?

    I don’t think that that’s the case.

    I think it has no applicability here.

    And getting back to your question, Justice Whittaker, I will say this that I think that this man actually just as any other citizen when it came to his attention that — that he thought the law was being violated there, he made a report not to the general law enforcement officers, but to the liquor agents.

    And when he made that report and told them, “If you come out here, I’ll show where it still is,” I feel that he had fulfilled his obligations.

    I feel that from that point on, it was within the hands of the officers and the officers should have known what to do and it — the law clearly says what those officers should do in the abatement of an action.

    Charles E. Whittaker:

    Well, under your law, could they, the officers, derive any author — entry authority from him, the landlord?

    J. Sewell Elliott:

    Not — not to the extent of breaking and entering.

    There are no provisions that I know of on the — in the codes of Georgia, in the law of Georgia to allow it.

    Turning to the common law, there is no provision there to allow any such entry to the extent of breaking — of breaking a window or a door.

    And by breaking the seal on this house, by opening a closed window is very clearly a breaking and it is not permitted by — by federal — by common law and there is no provision under state law for any such action that was — as was done here.

    This was simply — very clearly, a report to the officers by a citizen that I think the law is being violated and turning it over to the officers to take the proper action.

    Felix Frankfurter:

    And you think it’s — and you would regard it as a — a trespass for him if he’s under this duty at least of reporting, to verifying his sense of smell by visual — by visual proof?

    J. Sewell Elliott:

    I think it would’ve been —

    Felix Frankfurter:

    Do you think that would be trespass?

    J. Sewell Elliott:

    I think it would’ve been trespass for him to —

    Felix Frankfurter:

    The door was open.

    J. Sewell Elliott:

    — enter it, to do anymore than he had done before the officers came.

    And I think the officers had no more right to do more than he could have done.

    Felix Frankfurter:

    Practically yes, but do you think that landlords can’t take measures, as one, he could be certain —

    J. Sewell Elliott:

    There was —

    Felix Frankfurter:

    — that they were mashing things up if — what if he’s under a duty to report?

    J. Sewell Elliott:

    There was no compelling —

    Felix Frankfurter:

    He knocked at the door and found that nobody is in.

    J. Sewell Elliott:

    There was no compelling circumstance here.

    There was no reason in the world why the officers could not obtain a warrant.

    There was full and ample opportunity.

    Felix Frankfurter:

    That is not the requirements of this Court as to this — that is not the test of ambiguity.

    J. Sewell Elliott:

    The — I have two or three other comments that I’ll try to be very brief on.

    Even though property rights would have been lost, either under this Georgia statute that is quoted in the brief of the Government, I think that that would not strip away from his — him his constitutional rights.

    I also asked the Court to please, if they consider the quoted Section 58 Ga. Code 106 that they also consider the Section 58 Ga. Code 101 which is referred in that Section, but is not quoted in the brief of the Government.

    Earl Warren:

    What does that Section provide, Mr. Elliott?

    J. Sewell Elliott:

    That Section provide, Your Honor, the term “prohibited liquors and beverages” and that is in quote, used in any law to promote temperance or to suppress the evils of intemperance shall include the following.

    One, alcohol, alcoholic liquors, spirituous liquors and all mixed liquors, any part of which is spirituous, foreign or domestic spirits or rectified or distill spirits; absent, whiskey brandy, rum and gin and then two, Venus liquors and beverages, three, “Nothing in this chapter shall apply to fermented beverages made from malt in hold or in thought or any similar beverages.”

    I feel —

    Earl Warren:

    What — what’s the — to what effect do you quote that?

    J. Sewell Elliott:

    Well, in this particular case, there was nothing in this house, but mash.

    There — there was no liquor in this house.

    And I do not believe this particular Section has any applicability here because I do not think that was anything in that house that would exercise any forfeiture.

    And I also want to point out that the Section provides, shall at the option of the landlord, work a forfeiture.

    There’s no indication that the landlord exercised any or — or option to forfeit the rights of this tenant.

    There’s no indication that he’s — took it upon himself to say, “There is a forfeiture and therefore, you are not required to pay anymore rent under any contract that may exist.”

    Hugo L. Black:

    What was the mash made of?

    J. Sewell Elliott:

    I’m not sure that I can answer —

    Hugo L. Black:

    Does the record show?

    J. Sewell Elliott:

    — that question.

    Hugo L. Black:

    Does the record show?

    J. Sewell Elliott:

    The record shows that — that it was simply mash.

    I — I can’t help you on that, sir.

    I think it was a type of mash that has been left to ferment, as I understand it.

    J. Sewell Elliott:

    There was no whiskey involved in this case at all, and none in the house.

    So, I don’t think there’s —

    Hugo L. Black:

    Does the record show what —

    J. Sewell Elliott:

    — applicability of this statute.

    Hugo L. Black:

    — does the record show what it was to be if it was carried forth before a provision?

    J. Sewell Elliott:

    I — I’m sorry, I didn’t understand your —

    Hugo L. Black:

    Did the evidence show what is — would have been, had the process could’ve been completed?

    J. Sewell Elliott:

    As I understand, I — I think perhaps it would’ve been white lightning if the process [Laughter] had been —

    Hugo L. Black:

    You mean corn liquor —

    J. Sewell Elliott:

    — had been terminated.

    Hugo L. Black:

    You mean corn liquor?

    J. Sewell Elliott:

    That would be hard liquor.

    What they [Laughter] term as white whiskey or —

    Earl Warren:

    White lightning.

    [Laughs]

    J. Sewell Elliott:

    There is no — there’s nothing in the Georgia law to permit this landowner to do what he did.

    I further say that I do not agree with the contention of the Government that — in other words, they present this argument.

    They say that the landlord actually went in and took the — the agent with him.

    I don’t interpret the facts and I don’t think the facts support that conclusion.

    I think, at most, what it was, it was a report to the liquor agent that I think I know where you can find the still and he helped them locate it.

    And at that stage of the game, it was turned over to the officers and they should’ve known exactly what to do and that a warrant was required.

    Also, it was a case of going around the house.

    The Harbin, who is the officer who entered, went all the way around the house, tried all the windows until he found one that was unlocked and that one he went into.

    I also would like to point out that this house or the evidence clearly shows that the house was not back in the woods to such a — to such an extent that it could not be clearly seen.I

    t was a little longer than the length of the courtroom in the — in the trial court from the road.

    It could be clearly seen from the road.

    It was not hidden back in the woods as a still house might be.

    And I want to thank this Honorable Court for your indulgence in the presentation of this case.

    Thank you.

    Earl Warren:

    Gentlemen, as to the next case, I think it would serve no purpose to — to start at this late — late moment.

    Earl Warren:

    We will start fresh on it Monday morning.

    We’ll recess now.