Elkins v. United States – Oral Argument – March 28, 1960

Media for Elkins v. United States

Audio Transcription for Oral Argument – March 29, 1960 in Elkins v. United States

del

Earl Warren:

No. 126, James Butler Elkins and Raymond Frederick Clark, Petitioners, versus United States.

Colonel Wiener.

Frederick Bernays Wiener:

The Court please, this is a search and seizure case which until 10 days ago represented two principal issues.

The first issue was whether when state officers illegally seized evidence without any federal participation in that seizure, such evidence was admissible in a federal prosecution and the second principal issue is whether the rule of the Rea case in the 350 U.S., was a rule of comity.

That was the case which held, as Your Honors will recall, that where a federal court suppresses the results of a search by federal officers, it showed enjoined those federal officers from testifying concerning that seizure in a subsequent state prosecution and this case presents the converse of that situation namely, a state court which has suppressed the fruits of a state seizure whether that court may enjoin the state officers who participated from testifying in a subsequent federal prosecution based on the same evidence.

Now, until 10 days ago, those were the only issues because it was conceded at the hearing of — on the motion to suppress, it was conceded by the United States attorney on the motion to suppress that the state seizure had been illegal.

I will read from page 80 of the record, “Mr. Lackey, that’s the U.S. attorney for the District of Oregon, I think we can take the position, Your Honor, without saying that we either accept or disbelieve that it was or was not an illegal search and seizure that for the purposes of this matter we may treat it as illegal.”

And then ten days ago when the prosecution’s brief was file here, that concession which had never been questioned or withdrawn in any stage and on the basis of which an appeal was taken, certiorari was applied for and granted on the record designated, the prosecution undertakes to reargue that case, whether in view of the holding in Abel decided today they can do so, I don’t know.

I shouldn’t think so unless, of course, we have one rule for concessions made by the movement on motions to suppress and another for the United States attorney.

Now, the facts in this case and I will try to state them in brief compass are these.

The case originates in May 1956.

One Langley at that time the district attorney of Multnomah County, Oregon, which includes the City of Portland, he has been judicially removed from his convict in office, was out to get the petitioner, Elkins, and when I say, was out to get, I rely on record testimony by Langley in this case to the effect that he wanted to get Elkins on a traffic charge and put him away in the state penitentiary for life and that’s — I — in the footnote on page 49 of petitioners’ blue brief.

In order to get Elkins, he struck at his employee, the petitioner Clark, and he executed an affidavit on information and belief.

Now on view of the Jones case just decided, I’d ask Your Honors to look at that affidavit on pages 20 and 21 of the record.

Langley deposed an information and belief that there obscene photographs with accompanying sound recordings in the home of the petitioner, Clark.

As Your Honors will see, there was no statement of any supporting evidence.

No statement of any supporting information.

Langley said he believed that Clark had these articles with intent to exhibit them in violation of the state law and then he went on to say that the source of this information was Police Chief Herder of Saint Helens, Oregon, which is a small community about 25 miles north of Oregon and that was all.

There was absolutely no statement of supporting facts.

Herder, the Chief of Police in Saint Helens, did not know Clark, did not know where Clark lived, had no knowledge of any obscene photographs etcetera in the home of Clark and didn’t know anything about Clark except what he had been told by others and Herder also said that he had never communicated with Langley.

He didn’t know the man.

He had never conversed with him.

As I will show later, there is a question whether Langley without betraying his presence listened in on an extension phone, to a phone call between Herder and a reporter, but nothing turns on that.

Langley’s position was that since it was information from a police chief, it was therefore probable cause.

At any rate, it was either double or triple hearsay without any statement of supporting facts, but on the strength of that affidavit, Langley got a search warrant from a judge who as he later admitted, didn’t read the document too carefully and armed with that search warrant, a raid was made in the evening of the 17th of May, on the home of the petitioner, Clark.

That raid was conducted by three deputy sheriffs, two policemen in uniform and they were accompanied by two reporters and one newspaper photographer.

And in the evening of that day, about 8:30 at night, they’ve broke in the door of the petitioner, Clark’s home, and they made return that they found no obscene photographs for the accompanying sound recordings.

That was the sheriff’s return.

They did seize the five electronic tapes herein question.

They couldn’t tell what those tapes contained, if anything.

Frederick Bernays Wiener:

There were slips accompanying those tapes which the seizing deputy did not read.

He didn’t arrest the petitioner, Clark, for wiretapping which is an offense under Oregon law and indeed, he left these five electronic tapes off the list — the receipt that he handed Clark.

He took those tapes that night down to the sheriff’s office in the courthouse downtown and in the wee small hours, played them back and made copies of those tapes which were duly published the next paper — the next morning I should say, in the enterprising paper, whose reporters had accompanied the raid.

Now, the 17th was a Thursday night.

The next three days were non-judicial days so that it wasn’t until Monday morning that Clark was able to redress this unlawful search, which he did by motion — by a motion to suppress filed before the very judge who had issued the search warrant.

Now, while this motion to suppress was pending in the State District Court which is the lowest tribunal in the Oregon hierarchy, Langley played these tapes to the grand jury, secured an indictment of both petitioners for violation of the state wiretapping act and one of the deputies sheriffs played back part of the tape to an FBI agent.

At the end of the hearing on the motion to suppress in the State District Court, the judge who have issued the warrant said that if he’d look at it properly and if he hadn’t relied too much on Langley’s integrity instead of his inspection, he would never have issued it and ordered the evidence suppressed and ordered it placed in the custody of the State Attorney General, subject to the further orders of the courts and the state — the tapes were put into a private bank in the actual custody of the Oregon state police.

A few months later, there arose a question whether the State District Court had jurisdiction to issue the order of suppression after the indictment had been returned the State Circuit Court, which is the court of general criminal jurisdiction in Oregon.

The motion to suppress was reargued in the State Circuit Court and the State Circuit Court again, suppressed the evidence as illegally seized and ordered it held by the Attorney General of the State, subject to further orders of the court.

Potter Stewart:

How did it get from a District Court to the Circuit Court, is that a matter of appeal? (Voice Overlap) —

Frederick Bernays Wiener:

It —

Potter Stewart:

— was it not?

Frederick Bernays Wiener:

— wasn’t an appeal.

It was a — apparently, as nearly as I can judge from the record, it was a new proceeding.

It was reargued.

The only proceeding for bringing it up would have been a writ of review which seems to have been discussed, but it was actually argued de novo in the State Circuit Court.

Potter Stewart:

And —

Charles E. Whittaker:

Would you think (Inaudible)

Frederick Bernays Wiener:

There is none here.

No — no additional evidence was taken.

Potter Stewart:

And where — where was the trial of this have been for violation of the Oregon wiretapping (Voice Overlap) —

Frederick Bernays Wiener:

In the State Circuit Court — in the Oregon Circuit Court.

Potter Stewart:

Circuit Court —

Frederick Bernays Wiener:

Yes.

Potter Stewart:

— rather than the District Court.

Frederick Bernays Wiener:

Yes, because it’s the State Circuit Court which is the court of general criminal jurisdiction.

Now, while those tapes were in the bank, they were taken from the bank where they were in the constructive custody of the state courts, they were taken under a federal search warrant and a few months later, the present — federal indictments followed briefly a number of substantive counts for violation of Section 605 of the Communications Act, the federal wiretapping statute with the inevitable accompaniment of a conspiracy count.

Petitioners then filed a motion to suppress in the U.S. District Court and they had a four-day hearing on that motion and their grounds were for, first that since the matter had been illegally seized by state officers, it was inadmissible for all purposes in the federal prosecution.

Second that the federal agent didn’t have probable cause, third that the federal agents and the state officers had cooperated and fourth that the property was in the constructive custody of the state court at the time of seizure and therefore, couldn’t be reached by a federal warrant.

A four-day hearing followed.

Frederick Bernays Wiener:

When Chief Herder finished his testimony in which he made it plain that he knew nothing about the petitioner, Clark, and that he’d never, in his life ever talked to then District Attorney Langley, the U.S. District Court leaned forward and asked the U.S. Attorney, “What is your position on the legality of this state seizure?”

And the U.S. Attorney trying not to impugn the legality of state officers finally said, “I think that without taking a position on this that for purposes of this matter, that is the motion to suppress, we may treat it as illegal.”

During and at the close of this four-day hearing on the motion to suppress, the U.S. district judge made three rulings.

First, he said that the validity of the federal search warrant was immaterial and he cut off further proof on that.

Second, he made a finding that there was no federal participation or complicity in the state raid and third, he said that under the silver platter doctrine, which is the Weeks case, plus the buyer’s dictum, plus ballistic dictum, it was admissible in a federal prosecution regardless of its original illegality because of the lack of federal participation and he denied the motion.

Petitioners then went in — back to the State Circuit Court and got a restraining order, later a preliminary injunction, against the state and county officers enjoining them from testifying in the federal court as to the circumstances of the illegal state seizure in which they had participated and that order was based on the Rea case in the 350 U.S. and the opinion of the State Circuit Court cited and relied on the Rea case.

When that order was shown, the U.S. district judge who at that point was trying the case, he said it was a nullity under the Supremacy Clause and he ordered the eight enjoined witnesses to testify when they were respectively called.

Seven of them had been mentioned by name in the state court order.

One recognized that he was included within its terms.

Of those eight, three had been under the restraint before they were subpoenaed by for the federal trial, five were subpoenaed for the trial before the restraining order issue.

Also, at the trial, the reels of tape, the five reels of tape were admitted into evidence.

The petitioners preserved their objections, the matter wasn’t, of course, reargued, but there was no waiver.

At the end of a long trial which included night and Saturday sessions, petitioners were convicted.

Now, following the close of the evidence in their federal trial, they went back into the State Circuit Court and instituted contempt proceedings against the State and county officials who had violated the order of the state court by testifying and the United States Attorney countered with an injunction against petitioners from further pursuing those contempt proceedings.

In due course, the conviction was appealed and the Ninth Circuit affirmed that on the ground of the silver platter doctrine which is the same issue that’s also in Rios, No. 52, which follows this case on argument.

Now those are the facts in essential outline.

The first question logically is, was the state search and seizure illegal?

The United States Attorney conceded at the hearing on the motion to suppress that it was illegal.

And I think that if the —

William J. Brennan, Jr.:

You’re never sure of that.

Frederick Bernays Wiener:

What’s that?

William J. Brennan, Jr.:

When we’re sure of that (Inaudible) case that would be decided on the premise that it wasn’t (Voice Overlap) —

Frederick Bernays Wiener:

That for the purposes of this matter, we may feed it as —

William J. Brennan, Jr.:

reversed —

Frederick Bernays Wiener:

— as illegal.

And the entire trial proceeded on that basis that concession wasn’t withdrawn at the subsequent hearings on the motion.

It wasn’t withdrawn at the trial.

It wasn’t withdrawn in the Court of Appeals and it wasn’t withdrawn until 10 days ago.

And I think that if the Abel case decides anything, it decides that is now too late to try to wiggle out of that.

But if the question is still open —

Felix Frankfurter:

Perhaps after you’ll read the opinion tomorrow morning — quite to find that they decided that.

Frederick Bernays Wiener:

I thought that that was the one point on which everybody agreed and that what they disagreed on was the consequences of the concession that the arrest was legal.

Felix Frankfurter:

The case didn’t go on the ground that the matter couldn’t be considered here, otherwise it wouldn’t have been considered.

Frederick Bernays Wiener:

Well, very well, if it’s going to be considered, then I have no hesitation in saying that the United States Attorney’s concession was well founded, because —

Felix Frankfurter:

What was the — what position did the Court of Appeals take?

Frederick Bernays Wiener:

The Court of Appeals cited Rios and said it was immaterial.

In Rios they said that the silver platter doctrine only comes into play when the state seizure is illegal.

It doesn’t make any difference.

I’m perfectly prepared to argue the legality of it and there I will invoke the Jones case.

Now, the facts were that Langley set forth no supporting facts.

He said on information and belief, Clark has the — these articles, the source of my information is Chief Herder.

Chief Herder knew absolutely nothing in the world about it, except what he had been told.

Felix Frankfurter:

Am I right in this — understanding that illegal means illegal under state law.

Frederick Bernays Wiener:

Well I —

Felix Frankfurter:

Well a warrant — the warrants to which you are addressing yourself as a state court (Voice Overlap) —

Frederick Bernays Wiener:

It was a state court warrant so far as I’m going to show that it was illegal under state law and that was illegal under the Fourteenth Amendment.

Felix Frankfurter:

They’re not —

Potter Stewart:

What did the Oregon courts hold that it was illegal under both?

Frederick Bernays Wiener:

The Oregon courts only purported to decide state law.

They said it was illegal under state law because under the law of Oregon, you cannot issue a search warrant on information and belief.

Felix Frankfurter:

I’m sure you have a good reason for it, why don’t you rest on the Oregon determination?

Frederick Bernays Wiener:

I don’t rest on the Oregon determinations because the prosecution now relies on a later Oregon case which didn’t deal with a search warrant —

Felix Frankfurter:

But — never mind as far as I’m concerned about the later Oregon case.

Was there an adjudication?

Frederick Bernays Wiener:

There were — there were two —

Felix Frankfurter:

Was there an adjudication by Oregon with reference to this very matter adjudicating it to have been an illegal performance?

Frederick Bernays Wiener:

Yes, Your Honor.

There were two such adjudications.

There were two such adjudications and I will go farther.

And I will say that if Oregon had attempted to hold the warrant good, it would’ve violated the Fourteenth Amendment.

Felix Frankfurter:

Why should we hear, we determine an adjudication by Oregon of its law regarding the legal nature or illegal nature of this transaction?

Frederick Bernays Wiener:

I would be very happy if Your Honors didn’t —

Felix Frankfurter:

Well, then you must (Voice Overlap) for not making that —

Frederick Bernays Wiener:

— because it will simplify my task.

The only reason I have is that the prosecution is trying to open it up.

Felix Frankfurter:

But you don’t always follow what you deem unwise by the other side, do you?

Frederick Bernays Wiener:

All right, I’ll — I’ll go ahead.

I think it’s perfectly plain that under Oregon law, under the Fourteenth Amendment, under the Fourth Amendment, the Jones case, this was an illegal search and seizure because the affidavit was worthless.

There were no facts stated in it.

It was based on probably treble hearsay or if you believe that Langley, the District Attorney in a county of some 400,000 people, didn’t communicate directly with the county chief of police, 25 miles away by calling him, but only did so by listening in unbeknownst to the police chief on a call made by a police reporter.

If Your Honors will believe that, then we’re down to only double hearsay, still without any statement of supporting facts and that was an illegal search and an illegal seizure and the people in there were not only trespassers, but since they broke and entered a dwelling house in the night time with intent to take and carry away personal property, then if my memory of criminal common law, crimes doesn’t dessert me, they were burglars as well as trespassers.

And since they were not lawfully in the premises, we don’t have to go into the question of what they could property have seized which was the point on which the — Your Honors divided this morning in the Abel case because the basis of Harris and Rabinowitz, of course, is that the people are lawfully on the premises.

These people were not lawfully on the premises.

So we say it was an unreasonable search and seizure in violation of state law, in violation therefore, of the Fourteenth Amendment.

Now, since there was no federal participation and we don’t question those findings, since there was no federal participation, we reach what I deem to be the basic question here and I think ultimately, the only question namely the continued validity of what due to an expression in the Lustig case has been become known as the silver platter doctrine.

Namely, if evidence illegally seized by state officers is handed to federal officers on a silver platter, without any participation on their part, that it is admissible.

Now, there are at least six reasons in my judgment why that doctrine can stand and why it has no further validity.

And the first and I think, basic reason is that the assumption on which it rested has been abandoned by this Court.

Your Honors will recall that in the Weeks case, there were two seizures involved.

One was the seizure by federal officers which was ordered suppressed and the other was the seizure by state officers which was not ordered suppressed, because said the Court, the Fourth Amendment doesn’t reach these states and therefore, an illegal seizure by state officers at that time, did not violate the Fourteenth Amendment, I’m sorry — they did not violate the Constitution of the United States.

That was in 1914.

35 years past, we get to the case of the Wolf against Colorado.

That held that the Due Process Clause of the Fourteenth Amendment includes the right to be free from illegal searches and seizures, so that the basis on which the state court seizure in Weeks was rested no longer upholds, because now, an illegal seizure by state officers violates the Fourteenth Amendment.

It violates the Federal Constitution and therefore, it is inadmissible in a federal court.

Let me take — let me take one sentence from the Weeks opinion which I think sets forth its rationale succinctly and clearly.

The Court there said that if the evidence in question can thus be seized and held and used in evidence against the citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value.

And so far as those — thus placed is concerned, might as well be stricken from the Constitution.

Now, let us move on pass 1949 when Wolf v. Colorado has held the Due Process Clause of the Fourteenth, incorporates the essential guarantee of the Fourth Amendment, the freedom from unreasonable searches and seizures and let me paraphrase what was said in Weeks by changing a single word that if this articles can thus be seized and held and used in evidence against the citizen accused of an offense, the protection of the Fourteenth Amendment declaring his right to be secure against such searches and seizures, is of no value and so far as those thus placed is concerned, might as well be stricken from the Constitution.

So that unless the Court is prepared to say that it will protect and enforce the Fourteenth Amendment, less than it’s prepared to protect the Fourth, I think it must follow that the state seizure aspect of Weeks is gone —

Felix Frankfurter:

That was precisely the decision of Wolf that it is protecting less the Fourteenth than the Fourth.

Frederick Bernays Wiener:

Well —

Felix Frankfurter:

(Voice Overlap) very point of Wolf.

Frederick Bernays Wiener:

The —

Felix Frankfurter:

Otherwise, the decision would have had to be the same.

Frederick Bernays Wiener:

I don’t think with all deference and I realize I’m talking to the author of the decision.

Felix Frankfurter:

But the author has no more data on which to — to express an opinion as to what that opinion means than you do.

Frederick Bernays Wiener:

The — the Wolf case did not involve a federal prosecution.

The Wolf case as I read it, said, “A state cannot — a state cannot affirmatively sanction unreasonable searches and seizures,” but the manner in which the State enforces the protection against searches and seizures is up to the State, it may do it by excluding it, it may do it otherwise.

Now, however, we have a situation that is more akin to the Benanti case because we have an illegal search and seizure, which is a violation of the Fourteenth Amendment and we have the problem not that we had in Wolf of admitting the fruits of that violation in evidence in a state court, we have the problem of whether that evidence is to be admitted in a federal court.

Felix Frankfurter:

But the source of the illegality is a violation of the Fourteenth Amendment.

Frederick Bernays Wiener:

Exactly.

Felix Frankfurter:

Whereas the precise question is as I see it, what enforcement is to be given in the federal courts to a violation of the Fourteenth Amendment?

Frederick Bernays Wiener:

And I say the same —

Felix Frankfurter:

(Voice Overlap), what consequence these are to be drawn in the federal court to a violation of the Fourth Amendment.

Frederick Bernays Wiener:

And I —

Felix Frankfurter:

I’m not saying your result may not —

Frederick Bernays Wiener:

No, no.

Felix Frankfurter:

— be saying, but I think, the issues of this —

William O. Douglas:

Well, in this case, Oregon follows a Weeks —

Frederick Bernays Wiener:

I believe —

William O. Douglas:

(Voice Overlap) doesn’t it?

Frederick Bernays Wiener:

— I believe that it does at least, it does on practice, two Oregon courts suppress this evidence.

Potter Stewart:

But that’s not — that is an issue between you and your brother isn’t it?

Frederick Bernays Wiener:

Yes, well — well, when that question is asked, I — I’ve taken back 30 years in memory, but the old farmer back home was asked whether he believed in baptism and he said, “Good Lord, yes, I’ve seen it done.”

Well right here in this record there are two suppressions of illegally seized evidence by state courts of Oregon.

So whether or not, the — all of the elegantia juris of Weeks has been adopted by the Supreme Court in — in firm holdings other than dicta, in fact, they suppressed illegally seized evidence and they suppressed it twice here.

Potter Stewart:

Now, did they suppress it actually or did they turned it over to the custody of somebody else?

Frederick Bernays Wiener:

They suppressed — they didn’t return it.

They — they suppressed it for use in evidence.

They turned it over to the Attorney General to be held subject to the further orders of the Oregon courts.

Potter Stewart:

It’s a little different from suppressing evidence as it’s known in the federal courts isn’t it or not?

Frederick Bernays Wiener:

Well, in the — in the — not necessarily, no.

No, because suppose they suppress narcotics, you don’t return that to the owner.

Potter Stewart:

Well, as I understood it, not if I don’t —

Frederick Bernays Wiener:

There’s a — there’s a statute in — there’s a statute in Title 28, which was considered in the Rea case, where narcotics taken by federal officers even if it’s suppressed, is held subject to the orders of the federal court.

Potter Stewart:

Any property taken under the Internal Revenue Code.

Frederick Bernays Wiener:

Yes.

Potter Stewart:

(Voice Overlap) —

Frederick Bernays Wiener:

And — and this property was suppressed not — it couldn’t be used further against petitioners.

They were never tried on the state indictment, the state indictment was dismissed.

Potter Stewart:

Was it?

Frederick Bernays Wiener:

It was dismissed — the — the evidence was suppressed.

It was held subject to the order in the — the courts so it’s really the Rea case, but getting back to where — my — the — the present point —

Felix Frankfurter:

May I — may I —

Frederick Bernays Wiener:

Certainly.

Felix Frankfurter:

— make a comment on your answer to Justice — my Brother’s question, in the first place, since we are here enforcing, since we’re seeking to have it enforced, some deductions of the Fourth Amendment as to the use to the what evidence is admitted, the answer is even if Oregon adopted the Weeks rule, it certainly would be a difficult suggestion — a difficult rule to have the Weeks stopped and applied the state-secured — illegally state-secured evidence, in states that follow the Weeks doctrine and not in other states.

Frederick Bernays Wiener:

Exactly.

Felix Frankfurter:

But that would be — that really would make an awful pattern —

Frederick Bernays Wiener:

Yes.

Felix Frankfurter:

— for federal prosecution —

Frederick Bernays Wiener:

Yes.

And — and as — as I see —

Felix Frankfurter:

But as a matter of fact, this Oregon — way regarded and I’m just looking —

Frederick Bernays Wiener:

Well —

Felix Frankfurter:

(Voice Overlap) and Wolf and I gather that the — that Wolf — that Oregon opposed the Weeks doctrine both before that.

Frederick Bernays Wiener:

I — I didn’t read the cases that way, Your Honor.

Felix Frankfurter:

I haven’t read them.

I just looked at the table —

Frederick Bernays Wiener:

Well, I — I looked at the table and then I read the cases and I arrive at the — at the conclusion.

Felix Frankfurter:

You mean the tables misrepresent Oregon?

Frederick Bernays Wiener:

The table doesn’t read the Oregon cases the way I read them.

Let — let us leave it on that.

Felix Frankfurter:

(Voice Overlap) dubious as that.

That you and I can mean a different thing.

Frederick Bernays Wiener:

If Your Honor read those cases, then we read them differently.

But I — I read those cases as saying empowers it, the recent case says no, we’ve never adopted the Laundy dictum, all I can say is that they are suppressed and they were suppressed here.

Felix Frankfurter:

Well, I’m with you there, but I’d go back to what is the larger issue that I — I for one wouldn’t lay down a rule that applies to the Weeks doctrine —

Frederick Bernays Wiener:

Well —

Felix Frankfurter:

— applies in the states and not in other states.

Frederick Bernays Wiener:

Neither would I.

Felix Frankfurter:

I believe that in the worst of all answers —

Frederick Bernays Wiener:

I — I would agree.

I would agree and I put — I put this — these three — these four situations.

Evidence is illegally seized by federal officers.

It’s sought to be used in a federal prosecution.

You can’t do it Weeks.

Evidence is severally illegally seized by federal officers.

It suppressed.

It’s then sought to be turned over to the state for prosecution.

Again you can’t do it, Rea.

Evidence is —

Felix Frankfurter:

You can’t — you can’t — the Court has power to prevent its office.

Frederick Bernays Wiener:

That’s right.

Felix Frankfurter:

From being party to such transactions.

Frederick Bernays Wiener:

Correct.

Third situation — illegal state seizure — state prosecution that’s the question of Weeks or non-Weeks in this — in Oregon it couldn’t be used.

The indictments were dismissed and the fourth situation, illegal state seizure, a shift in other direction to federal officers, why should you be able to turn it over to the federal officers.

Now, it seems to me that you are in leaving open one or possibly two in some states leaving open that situation, you get an intolerable answer because you open the door wide for connivance and subterfuge and evasion.

Now, I don’t say it was present here, I say the way is open because while the hearing on the State — first state motion to suppress was pending, one of the seized reels which were sought to be suppressed, was played back to an FBI agent.

Charles E. Whittaker:

Mr. Wiener may ask you please, sir?

Charles E. Whittaker:

Is it correct to say that this evidence was turned over by the State to the Federal Government under these facts?

Frederick Bernays Wiener:

It was actually seized by the Federal Government under a federal search warrant.

The federal district judge hearing the motion to suppress said he didn’t think it made any difference whether the federal search warrant was legal or illegal.

I am inclined to agree with him because if the illegal state seizure tainted this evidence, so that under the doctrine for which I’m contending it was incapable of use in a federal court, it couldn’t be cleansed by subsequent seizure under a federal warrant particularly — particularly, when that evidence at the time was in the custody, constructive custody of a state court.

Charles E. Whittaker:

Then would the bundling or even purposeful misuse of process by state officers, forever put out of use, the possible proper seizure of evidence and its use by the Federal Government.

Frederick Bernays Wiener:

Not if the access of state power were exerted with a view to frustrating federal — a federal prosecution or a federal action.

Charles E. Whittaker:

But suppose it is —

Frederick Bernays Wiener:

I apprehend that if — to take an example, if certain ballot boxes were being held for examination by a federal commission who — operating under the Fifteenth Amendment, I take it, those could not be rendered inadmissible by a sudden excess of zeal by state sheriffs who violated the Fourteenth Amendment in their own state constitutional provision against searches and seizure, but we don’t have that here.

Charles E. Whittaker:

But I — I don’t quite follow you there, if I get your illustration.

The state sheriff violates the law of the State, to illegal seizure, is that it?

Frederick Bernays Wiener:

Yes, sir.

Charles E. Whittaker:

And those documents — that those materials are afterwards necessary in the federal or relevant to a Federal Constitution, you say in that case, there isn’t a taint — there isn’t a — an inexpugnable infection or taint, upon that evidentiary material, is that it?

Frederick Bernays Wiener:

Well — No, it isn’t.

(Voice Overlap) if the purpose of the illegal state seizure were to fasten the taint on materials precluding them from use in a federal prosecution.

Felix Frankfurter:

But then — then the rule if which you’re urging, as I understand you, you generalize that situation is where — an illegal state seizure is made in order to frustrate a federal prosecution.

Frederick Bernays Wiener:

That might — that might well be different, yes.

Felix Frankfurter:

Well if — is —

Frederick Bernays Wiener:

Well, we don’t have that situation here.

Felix Frankfurter:

You don’t have it?

Frederick Bernays Wiener:

We – we don’t have that situation here (Voice Overlap) —

Felix Frankfurter:

But if the sheriff did it out of his own — in his own ignorant blindness or blind ignorance, not thinking about federal prosecution at all then it would be tainted, wouldn’t it?

Frederick Bernays Wiener:

Yes same as in Rea — same as in Rea.

The federal —

Felix Frankfurter:

(Voice Overlap) but the Rea is a very special thing.

Rea says that you are officers of this Court and you can’t do skullduggery.

Frederick Bernays Wiener:

That what the State circuit judge tells the State sheriffs here, your officers —

Felix Frankfurter:

And —

Frederick Bernays Wiener:

— of this Court.

You can’t do this kind skullduggery, that’s precisely what they say.

Felix Frankfurter:

Yes, but that’s all within the same household, but here the question is —

Frederick Bernays Wiener:

So is this.

Felix Frankfurter:

But (Voice Overlap) —

Frederick Bernays Wiener:

But the — but the effect of Rea —

Felix Frankfurter:

(Voice Overlap) the same household because the question here arises, whether as Justice Whittaker’s question indicate, honestly sought and legally — otherwise, formally legally efforts to obtain relevant evidence to preclude the use of that evidence because the holder of the evidence was guilty of state illegality.

Frederick Bernays Wiener:

I — I again repeat, Your Honor, that — that was Rea.

That was the Rea case.

New Mexico could never again prosecute Rea.

Felix Frankfurter:

Because the federal court says “It’s official, you’ll not be allowed to carry out the skullduggery.”

Frederick Bernays Wiener:

Exactly, well that —

Felix Frankfurter:

But, is that here?

Frederick Bernays Wiener:

Yes.

That — because this involves the converse of Rea.

There was an order here patterned after Rea by the State Circuit Court directed at the Oregon State and county officials saying, “You may not testify regarding your skullduggery in the federal court”.

Felix Frankfurter:

But that — but you’re seeking to bind that determination upon the powers — you’re seeking to subject to powers of the federal court to the admissive diligence to a search warrant, arguendo through a valid search warrant of none having the basis of which is knowledge that has come to the U.S. Attorney that somewhere over there across the street in a state building, is evidence which is — which is relevant to prosection —

Frederick Bernays Wiener:

The — the —

Felix Frankfurter:

— is that this case?

Frederick Bernays Wiener:

This – No, it isn’t this case because the federal search warrant was directed that property in the constructive custody of state courts.

Felix Frankfurter:

Well that raises a question of the comity between federal —

Frederick Bernays Wiener:

I know —

Felix Frankfurter:

— and state authority.

Frederick Bernays Wiener:

— exactly and I say the —

Felix Frankfurter:

I’d understand that.

Frederick Bernays Wiener:

I say that the warrant couldn’t reach that, but what I’m saying at the outset —

Felix Frankfurter:

But that has — that — it couldn’t reach that — that argument does not derive from the Fourth of — Fourteenth Amendment —

Frederick Bernays Wiener:

No.

Felix Frankfurter:

— that argument derives from the interplay (Voice Overlap) —

Frederick Bernays Wiener:

Exactly and I’m now — I’m now addressing myself to the silver platter doctrine and I have mentioned the four situations and now, there are certain other considerations which I’d like to — which tell the theory here, as logically as they do on the brief and that is this.

Let’s go back to non-constitutional aspect of the Olmstead case.

Now as — as Professor Coin’s paper indicates and we have the access to Justice Brandeis’ papers, he originally wanted to decide the Olmstead case on the basis that the federal officers were violating state law in the process of enforcing federal law and that is the non-constitutional feature of this dissent.

Now, the federal officers engaged in prosecuting here, did not, themselves, violate state law, namely the state provisions against searches and seizures, but when they took the fruits of that illegal state search, I submit that they ratified the illegality and they took evidence with all that taint there unto appertaining and I say that on the reasoning of Mr. Justice Brandeis’ non-constitutional dissent, that should be inadmissible in federal court, in that respect, it’s like Gambino.

Felix Frankfurter:

Well you (Voice Overlap) —

Frederick Bernays Wiener:

Moreover —

Felix Frankfurter:

— Burdeau against McDowell.

His dissent in the case, in that case is supported.

Frederick Bernays Wiener:

I have — I have sighted that also and I hope that Your Honors will follow that dissent.

Now, there’s another feature.

For many years, it was impossible to obtain here any adjudication as to the validity or otherwise of restricted racial covenants, because those were regarded as private agreements.

And then in Shelley against Kreamer, it was held that when you take that private agreement into a state court and get a state injunction that is a — that is state action and that is state action to be governed and tested by the contours of the Fourteenth Amendment.

Now, similarly here, what was originally done to these petitioners was state action, but when you take the fruits of that state action and use it to prove the corpus delicti of a federal offense in a federal court, in a federal prosecution, which will send citizens to jail, you have transformed that original state action into federal action and I say it’s an inadmissible and I say that a court of the United States is bound to enforce the Fourteenth Amendment, as vigorously as the —

William O. Douglas:

But —

Frederick Bernays Wiener:

— Fourteenth Amendment.

William O. Douglas:

— what you’re saying is that the result is as bad as it would’ve been if the federal officers have gone with the state officers on the original search?

Frederick Bernays Wiener:

Yes.

Yes, Your Honor because —

Felix Frankfurter:

But that argument — that argument wasn’t valid, wasn’t applicable when Weeks, Center and Burdeau and McDowell are before the Court, forget about because that has nothing to do with Wolf —

Frederick Bernays Wiener:

No.

I — I don’t think — I —

Felix Frankfurter:

That has nothing to do with Wolf.

Frederick Bernays Wiener:

It was — it was as valid when Burdeau v. McDowell is before the Court.

Felix Frankfurter:

We got as Center because that rested on — that’s cited.

Frederick Bernays Wiener:

Well, I know, but — but basically —

Felix Frankfurter:

(Voice Overlap) —

Frederick Bernays Wiener:

— but basically, the — the Weeks case, the state aspect of the Weeks case rests on the proposition that state officers making an illegal search don’t violate the Federal Constitution because the Fourth Amendment doesn’t bind them.

Now then, after Wolf, when State officers make an illegal search, they violate the Fourteenth Amendment.

Felix Frankfurter:

I understand that, but I was addressing myself to the state of your argument, namely, your appeal that we follow order in McDowell and that rests not on the constitutional argument, but on our power although shaping the law of evidence in the federal court.

Frederick Bernays Wiener:

And the same — then the same must be true of the Weeks case, because on Wolf it was said that —

Felix Frankfurter:

I understand —

Frederick Bernays Wiener:

Yes.

So, I —

Felix Frankfurter:

I think it was true.

Frederick Bernays Wiener:

Yes.

Felix Frankfurter:

I think that argument was — that’s why I said.

Frederick Bernays Wiener:

Well —

Felix Frankfurter:

Not with the view to disagreeing with you, but making the point that that line of argument was just as relevant at the time on Weeks, Burdeau, McDowell and Center.

And therefore, to deal with that argument wholly apart from the Wolf respect on this problem, we would have explicitly to overrule those cases.

Frederick Bernays Wiener:

There’s no question about that.

Felix Frankfurter:

All right.

Frederick Bernays Wiener:

But — but for the most part — but for the most part, it seems to me that if you over rule the — it isn’t so much overruling the state seizure aspect of Weeks as it tends to recognize that that portion of Weeks is now a form of legal driftwood left on the banks of legal history, where the stream of constitutional interpretation has passed upon.

Felix Frankfurter:

A fine phrase Mr. Wiener![Laughter]

Frederick Bernays Wiener:

There’s one other feature of the silver platter doctrine and that is the conflicts that it causes between state and federal courts.

Now in this case there were five conflicts between state and federal courts as a consequence of the silver platter doctrine.

Conflict number one, when the District Court said, “Notwithstanding the concession of the United States Attorney that this was an illegal seizure, I will let it in nonetheless.”

There’s not question here — there isn’t Rea of a reexamination.

Second conflict, when the state court then applied the converse of Rea to enjoin the state and county officers from testifying regarding that illegal seizure in which they are — had participated.

Third conflict when the district — U.S. District Court ordered the state and county officers to disregard the injunction.

Fourth conflict, when they were cited for contempt on said conflict when there was an injunction against further prosecution of the contempt proceedings.

Contrary was, if there were no silver platter doctrine, once the United States Attorney admitted both that for the purposes of this matter we may treat it as the illegal, that would have been the end of the entire situation.

Now, of course, he would still be free to say, well, if Your Honors please, I don’t agree we the state courts.

I don’t think it developed all the facts, I think I can show that this was perfectly legal, valid seizure tested by state and or by federal standards and particularly by the Fourteenth Amendment standards, I’ve never questioned it would be completely open to the U.S. District Court, indeed, it would be its duty to reexamine, but that question didn’t arise.

You mean in light of the — in light of the Fourth Amendment.

Frederick Bernays Wiener:

In light of the Fourteenth Amendment.

Now, what I mean is assuming one accepts the view that under state law, the seizure was illegal, is it open to the federal court to reexamine the seizure for the purposes of admissibility, leaving aside silvers platter for a moment?

Frederick Bernays Wiener:

Yes, because I —

Under the Fourth Amendment?

Frederick Bernays Wiener:

No, not Fourth Amendment, Your Honor.

It can’t be Fourth Amendment.

The Fourth Amendment doesn’t reach the States.

I understand that, but the evidence is being sought to be admitted in the federal prosecution.

Frederick Bernays Wiener:

Yes.

But it is not fair.

Frederick Bernays Wiener:

It is evidence illegally seized by state officers therefore, if any Federal constitutional provision has been violated, it’s the Fourteenth Amendment.

If — if Oregon for instance, had a statute saying that on the basis of triple hearsay, you can break into — into dwelling houses in the nighttime provided only that you get your information from the uniformed policeman and that it concerns obscenity.

Obviously, that would be bad under the Fourteenth Amendment.

Let us take a somewhat borderline case, let us take a somewhat borderline case, let us take a case something like Jones, is it bad because it’s hearsay or is it bad because they’re now supporting facts.

And then I think the federal court would have to determine whether admissibility would violate the standards of the Fourteenth Amendment.

In other words, since this is a federal prosecution, it can’t be determined on the basis of state law bearing from the State to State, nor as Mr. Justice Frankfurter says, “Can you have it admissible in the Weeks’ jurisdiction — in a non-Weeks jurisdiction and admissible — inadmissible in the Weeks jurisdiction — admissible in the non-Weeks jurisdiction?”

In other words, this concerns the admissibility of evidence in a federal court and that is the federal question on the federal court, is not included by any state determinations, nor by any state law.

I mean, if Oregon said that you cannot get a search warrant on any kind of the hearsay, if Oregon for instance, followed the rule of the Grau case, that the only kind of the affidavit must be the — of the sort of facts that would be admissible on evidence at a trial.

The federal court might well say, will this might violate Oregon law, but we think it comports with federal standards of due process and therefore we will admit it.

Now that basically is our position.

There are two other problems which I don’t reach for mostly for lack of time.

One is the question of the converse of the Rea case.

We only reach that in — in case that the evidence is admissible and we discuss whether Rea is a doctrine of supremacy or comity.

And then the question of the validity of the federal search warrant, that’s fully covered in the brief.

Basically, our position is that the district judge was right in saying it was a material because if the evidence was tainted, it couldn’t be purified by having another search warrant applied to it.

The federal search warrant couldn’t reach it in any event, because it was a state custody.

And finally, since the validity of the federal search warrant wasn’t litigated by the District Court, it can’t be sustained by the Court of Appeals least of all, where counsel seeking to suppress the evidence was cutoff from their proof as they were here.

But basically, we think this a matter of silver platter and we think that when silver platter is reviewed in the light of Wolf and when we give a good hard new look at what Mr. Justice Brandeis tried unsuccessfully to persuade his brethren in Burdeau v. McDowell and in Olmstead, that is to say the non-constitutional aspect that the conclusion must follow that there can be no room for introduction in the federal court of evidence seized by state officers in violation of the Fourteenth Amendment.

Felix Frankfurter:

I suggest though that there might be another conclusion, namely the circumstances under which the illegality, the fact that spell out illegality of action by state officials namely, Center presents one situation, of one quality of conduct if I may so call it.

Suppose Gambino — in Gambino, there hadn’t been the act of cooperation, but the state officials had thought as the matter of fact, had thought quite earnestly because not a question of zeal, but just —

William O. Douglas:

465 —

Felix Frankfurter:

— a misapprehension as to their power, but morally, an innocent conduct.

I’m not at all sure, I don’t know anymore about it than you do or maybe less, I know nothing about it and I was all sure that the Burdeau-McDowell attitude might not draw that distinction.

Frederick Bernays Wiener:

I will consider that, if Your Honor please.

The prosecution makes that suggestion.

I don’t think you can properly —

Felix Frankfurter:

I’m not sure this is a good place in which you can make it.

Frederick Bernays Wiener:

Well I — I’d like to take it up, I’m prepared (Voice Overlap) —

Felix Frankfurter:

I mean, I’m not sure on these facts that —

Frederick Bernays Wiener:

On — on these, I’ll take it first in general and then on these facts.

Frederick Bernays Wiener:

In the first place, I don’t think you can take the position that a little constitutionality is all right just as —

Felix Frankfurter:

But — but it didn’t go unconstitutionally.

You constantly hop back.

Burdeau and McDowell doesn’t go on unconstitutional.

Frederick Bernays Wiener:

Well, that goes — if that goes on — if it goes on little — unconstitutionality I don’t accept —

Felix Frankfurter:

All right.

Frederick Bernays Wiener:

— if it goes on how grievous is the lack of good faith, then let me just review the facts here.

Felix Frankfurter:

It goes on the — the attitude of the federal courts toward the kind of things that they will allow to go to judgment.

Frederick Bernays Wiener:

All right and let me —

Felix Frankfurter:

Which — which may not reach the level of constitutionality at all.

Frederick Bernays Wiener:

Let me deal with the question which is also raised in the prosecution’s brief of that, if they act in good faith or are guilty an inadvertent act failing to comply with all the technicalities of the search warrants, it should be called all right.

In the first place, there was no good faith here.

Langley was out to get Elkins and ordered to send them away for life on a traffic violation.

He was less than candid with the state district judge to whom he applied for a warrant, because the warrant to be executed on the night — on a night which was to be followed by three non-judicial days, so that to redress an illegal breaking on a Thursday night, the petitioners have to wait for Monday morning.

During the interval, during that non judicial interval, the state officers caused that tapes to be copied and public — facilitated their publication in a newspaper, Langley used the tapes to get the petitioners indicted while the motion to suppress was pending and I therefore say it’s just mockery to talk of a state — this is the prosecution’s quotation, “State officers acting in good faith, but mistakenly failing to comply with all the legal requirements.”

Or later, they talked about evidence of say, “Silver platter, if it does, is rejected, should still apply to evidence not obtained by intentional or evidence which wasn’t obtained intentional or clear violation of constitutional rights.”

I submit that when people forcibly break into a dwelling house at night, that’s neither a negligent action, nor inadvertence.

Felix Frankfurter:

Mr. Wiener to what extent were the facts as you see them of the — Mr. Langley brought to the knowledge of the federal that’s argued?

Frederick Bernays Wiener:

When you mean federal authorities, do you mean the federal court?

Felix Frankfurter:

I mean the U.S. Attorney when he — when the search warrant was sought out or —

Frederick Bernays Wiener:

The U.S. —

Felix Frankfurter:

(Voice Overlap) question of admissibility was raised.

Frederick Bernays Wiener:

The U.S. Attorney had no knowledge of — there is a finding, he had no knowledge that was — the raid was to be conducted.

By the time the motion to suppress was being heard, there was available — the transcript of the hearing at the State District Court and the State Circuit Court.

At the State District Court, which was where they took testimony, the affidavit was in evidence and Herder’s testimony that he knew nothing about Clark and knew nothing about — at never — knew nothing — didn’t know Langley and had never talked to him, that was in evidence.

Then, when Langley was called as the (Inaudible) first witness on the — the federal motion to suppress, he told this story of listening in on a phone call.

That was followed by Herder who again repeated that he didn’t know Clark, didn’t know where he lived, didn’t know anything about him and anything he passed on about him, he had passed on as hearsay.

When Herder left the stand, the district judge said, “Now, Mr. Lucky what about this seizure?

What position have you take about?” and Mr. Lucky tried to say, “Well, I don’t try to take any position,” and then he wound up with this concession that — we must — for the purposes of this matter we may treat it as illegal.

So that the U.S. Attorney was fully aware of the fact that this, our affidavit had only the authenticity of a $3 bill.

Felix Frankfurter:

Is it — is it — what can you say as to the extent to which the district judge when he denied the motion to suppress had substantially before — it had before him or was exposed to that narrative of facts which you have given here a minute ago?

Frederick Bernays Wiener:

Well, he was sufficiently impressed by it, than what he heard — heard his testimony so well, now, what’s you position on this?

And I — and later on, this is very interesting at page 313 of the record which is when the — when the state restraining order is brought, there is a long flag waving, hoorah, about the Supremacy Clause and twice on that page 313, the U.S. district judge who have been an Oregon State judge before his appointment to the federal bench, said that in his view, the order of the State District Court was correct in holding the State search illegal and in suppressing the evidence and later on, on the page he says I think in my opinion, the State Circuit Court was right in holding the search illegal and in suppressing the evidence.

So, while he didn’t rule on it because in his view, it was immaterial, I think he — he never for a minute, thought that it was legal.

Earl Warren:

Mr. Wilkey.

Malcolm Richard Wilkey:

Mr. Chief Justice may it please the Court.

First of all, I’d like to outline the position we will take here in argument.

As the opposition counsel has done, I shall devote myself primarily to two points.

First, being that the state search and seizure was valid under both the Federal Constitution requirements and the state standards and that if it meets the federal constitutional requirements, this should sufficient for admissibility in the federal courts.

Secondly, that on the facts of this case, on the facts of the Elkins case, this is no case for this Court to adopt a rule of exclusion of evidence, otherwise admissible in federal courts because of the conduct of state officials, law enforcement officers in the obtaining of the evidence.

Now, we submit that first of all, this warrant meets to the search and seizure based on the affidavit and the warrant meets federal standards.

Also, we suggest, that those standards are virtually equivalent to the standards in Oregon, as petitioner on page 48 of this original brief states.

Now Mr. Justice Frankfurter asked the petitioners’ counsel why he did not rest upon Oregon only deciding that the Oregon courts deciding this on Oregon law that that would be sufficient.

The petitioner, Mr. Justice, on page 50 of his brief, as I think he stated orally here, has been quite candid in saying that we have no doubt that a federal court would not be concluded by prior state court determination that particular evidence was obtained in violation of state law certainly where the state court had applied an erroneous measure of constitutionality or even more clearly, where operation of the state law would frustrate federal policies or even violate the Federal Constitution.

So, we think that petitioner admits that Oregon state law is not determinative of this and if the rule of exclusion must be based entirely on whether or not this search and seizure and the warrant met federal constitutional standards pertaining to the Fourteenth and the Fourth Amendment.

Felix Frankfurter:

Mr. Wilkey —

Malcolm Richard Wilkey:

Yes.

Felix Frankfurter:

— you can set (Inaudible) of one thing — is one question whether the federal court is foreclosed by an adjudication of a state court as to whether something is illegal under a state law.

A totally different question is whether that determination of state illegality is binding upon the federal court.

Malcolm Richard Wilkey:

There are — they are two different things Mr. Justice Frankfurter.

Felix Frankfurter:

(Voice Overlap) —

Malcolm Richard Wilkey:

We think — we think that not only one, should the federal court be free to examine, but secondly that if the Oregon State law or the law of any other state is more restricted than the constitutional requirement, then the constitutional requirement should provide a minimal standard in order (Voice Overlap) —

Felix Frankfurter:

But as to if — if an Oregon court says, “This is illegal under Oregon law,” is the matter to be re-litigated as to Oregon law in the federal court?

Malcolm Richard Wilkey:

I think that essentially in the federal court, the inquiry should be if it meets federal constitutional standards.

And actually in most cases, it would not be necessary to re-litigate the state law question, in most cases.

I think that if they — if there’s showing that the state law was more restricted than the federal, that the federal prosecutor should be able to meet federal constitutional standards to introduce the evidence.

Now, in — I remind Your Honor that in the Rios case, we do have a question on the redetermination there, which I’ll get to in that case.

And for the reason, Mr. Justice Frankfurter, that you enunciated in the colloquy with counsel on another point, that we must have a uniform rule of evidence in the federal courts, throughout the land.

Felix Frankfurter:

But insofar as state law is relevant, it seems to me a little odd there, the federal court re-determine what the state law is.

I noticed that, just look at your page 50, Mr. Wiener’s brief, what he cites that the Compare case, that case is rather more complicated question.

Malcolm Richard Wilkey:

Now, I should like to make clear as Mr. Justice Harlan suggested that the United States Attorney did not in Mr. Justice Harlan words go quite so far, go so far in making a concession.

In my own words, the Government and the prosecution did not make any concession whatever as to illegality of the state seizure.

And I refer Your Honors to the record on page 79 at the bottom of the page.

“Where the court inquired,” this was the page before the quotation read by posing counsel.

The court, “Mr. Lucky I wonder if you can advised me, does the Government concede that the search and seizure had by the state officials, the sheriff of Multnomah County, the original seizure of these articles now sought to be suppressed, whether or not, that was an illegal search and seizure?

Have you taken any position about it but that is binding in this Court?”

Mr. Lucky, “On that matter Your Honor, I would suggest that the position of the Government would be that it is immaterial whether or not, it was illegal.

And we wouldn’t feel it was incumbent upon us to establish the legality of that search and seizure.”

Now, then follows the quotation read by opposing counsel — I — Mr. Lucky goes on, “On the other hand, we would not desire to redress.

I think that should be review — the state processes and mark it as illegal in our view.

What Mr. Lucky was doing there was relying on the silver platter doctrine.

He did not wish in this federal proceeding to get into and inquire into the hassle and the tussle that was going on in the state courts and the state political process in regard to the people involved.

And later on in my argument I shall make clear why in this case at least, on these facts, it was the better part of wisdom for neither the federal prosecutor nor the federal judge to concern himself with this hassle pulling back and forth that was going on I — I cannot state.

— the fact of the matter is though wisely or unwisely, this case was litigated below on the silver platter theory.

Malcolm Richard Wilkey:

The —

Is that not true?

Malcolm Richard Wilkey:

The trial judge deciding — that he could accept the evidence without further inquiry as to the validity of the state seizure.

Right.

Now urging us here now, strike that to – decide it without reaching that question?(Voice Overlap) —

Malcolm Richard Wilkey:

Yes, Your Honor.

I think that the Court can because all of the evidence available —

Well, that’s the next question I want to ask you at having been decided on the silver platter premise, rightly or wrongly, is the record in such shape that we could do that without sending the case back?

Malcolm Richard Wilkey:

Yes Your Honor, I believe that it could be done and I think it was in the Jones case decided today that the question of probable cause, a decision was made by this Court without sending it back for examination on that.

However, we do say this that only if this Court makes a determination that the seizure first was invalid and secondly, that there is no such thing as a silver platter doctrine under any circumstances should the conviction be reversed.

The second alternative the Government would urge would be that it be sent back, but we think that the record here is complete in order that a determination maybe made that this was a valid search and seizure by federal constitutional standards and indeed by the state constitutional standards in Oregon.

Now —

Felix Frankfurter:

Is it true, Mr. Wilkey, that – it’s tedious way of putting it, is it a fact that the state court of appropriate jurisdiction, twice held that the state seizure was illegal?

Malcolm Richard Wilkey:

The see — the two state courts held that the seizure was illegal under Oregon law, but they did not suppress the others.

Felix Frankfurter:

I understand that.

Malcolm Richard Wilkey:

And they did not consider federal constitutional questions.

Felix Frankfurter:

I understand that too.

Malcolm Richard Wilkey:

Yes.

Felix Frankfurter:

But there were determinations by appropriate court of record, of Oregon, how high did it go to a determination?

Malcolm Richard Wilkey:

It went to the Circuit Court which is the trial court for felonies.

The District Court in Oregon is a — not a court of record.

In the city, it’s called a District Court.

The same equivalent court in the county is called the Justice of the Peace.

Every proceeding in that court is subject de novo litigation in the Circuit Court.

Felix Frankfurter:

And it was — it was re-litigated de novo in the Circuit Court, a court of record and that found it to be illegal, is that right?

Malcolm Richard Wilkey:

Yes Your Honor, they found it to be illegal, but only on the record made in the court below.

There was no additional proof put in, no evidence was heard by the State at anytime in these two proceedings and contrary to the assertion by petitioner, this proceeding has not been terminated in Oregon, because contrary to his assertion, this evidence was never suppressed by either Oregon court, the evidence was impounded and turned over to the State Attorney General, subject to such orders as this Court might make later on.

It has never been finally adjudicated the in Oregon that this evidence cannot be used in an Oregon court and furthermore, subject — a subsequent —

William J. Brennan, Jr.:

But did I understand Mr. Wilkey that the indictment has in fact been dismissed — the state indictment.

Malcolm Richard Wilkey:

I don’t think that the state indictment is a factor.

William J. Brennan, Jr.:

For what it just meant.

Malcolm Richard Wilkey:

That’s the statement indictment has been dismissed.

William J. Brennan, Jr.:

Well, on the — in any event, this evidence could not be used to prove that effect?

Malcolm Richard Wilkey:

I don’t know about that, Your Honor.

William J. Brennan, Jr.:

(Voice Overlap) indictment’s dismissed, how can it be used?

Malcolm Richard Wilkey:

Yes but I suspected the indictment was dismissed without prejudice.

In other words, this evidence might be available on a prosecution order.

Potter Stewart:

So indictment was not dismissed by reason of the invalidity of this search, was it?

Malcolm Richard Wilkey:

No, it was not.

Potter Stewart:

It was dismissed, actually at the request of prosecuting attorney, Mr. Langley.

Malcolm Richard Wilkey:

I think, on September the 26th the two, prosecuting attorney and his chief deputy wrote a letter in which they urged the dismissal of this indictment and I think that the motivating factor in that was that this evidence had been ruled illegal and was then impounded in the custody of the State Attorney General.

It was only about a year more later that eventually in March, I think of 1958, that it came around to the dismissed in the state courts.

Now, furthermore, there are other proceedings pending —

Felix Frankfurter:

Before — before you go on, may — would you be good enough to help me on this?

The — the accused materials — the accused evidentiary material, where are they now, physically in the procession of the federal U.S. Attorney’s Office?

Malcolm Richard Wilkey:

I think they’re here in the possession of the clerk of this Court.

Felix Frankfurter:

Well, they got — they’ve got to the U.S. Attorney’s Office?

Malcolm Richard Wilkey:

On September the 5th, 1956.

Felix Frankfurter:

And — and from when did he get them?

Malcolm Richard Wilkey:

From the deposit vault — a box in the bank.

Felix Frankfurter:

So that —

Malcolm Richard Wilkey:

By a warrant.

Felix Frankfurter:

From the bank?

Malcolm Richard Wilkey:

By — from the bank.

Felix Frankfurter:

And even if the hands of the State — the state prosecutor?

Malcolm Richard Wilkey:

There were in the hands of the State Attorney General and he had entrusted that actual custody to two state police officers with the name Cross and Gurdain who in — in furtherance of their duty, took out a box in the bank vault and there placed them for security.

Felix Frankfurter:

They were there — just were — they were to constitute a bank for on behalf of the State of Oregon, was that it?

Malcolm Richard Wilkey:

Yes.

Felix Frankfurter:

Yes and then the search warrant of United States, the federal search warrant was directed to the box of the bank, is that it, the bank?

Malcolm Richard Wilkey:

Yes.

Felix Frankfurter:

And that’s how they got in the U.S. Attorney’s Office and then they came here?

Malcolm Richard Wilkey:

That is correct Your, Honor.

Now I should like, on this question of the status of these materials, I should like to clarify the situation by reading from the record on page 24 and page 26.

Page 24 is the order of this District Judge Maris, as to what he did with it.

The first two full paragraphs deal for his reason that the warrant was invalid.

The third paragraph has to do with articles which were sought to be seized, which were named in the warrant.

That is not material here.

None of those are in this case.

The second paragraph disposes of the slot machines which were contraband and could be destroyed.

The — the fifth paragraph deals with the property here.

It is further ordered and adjudged in view of the executive order from the Governor of the State of Oregon that had —

Felix Frankfurter:

(Voice Overlap) Mr. Wilkey, page 26?

Malcolm Richard Wilkey:

24.

Felix Frankfurter:

I beg your pardon.

Malcolm Richard Wilkey:

Yes sir, fifth full paragraph.

Felix Frankfurter:

All right.

Felix Frankfurter:

I’m sorry Mr. —

Malcolm Richard Wilkey:

It is further ordered and adjudged in view of the executive order from the Governor of the State of Oregon, the remaining property B and the same as hereby ordered impounded in the procession of the sheriff of Multnomah County to be held and released only upon the direction of the Attorney General of the State of Oregon or such higher circuit or Supreme Court upon the whom the matter maybe heard.

He is now —

Earl Warren:

What was that — what was that executive order —

Malcolm Richard Wilkey:

Best dealt with — taking the prosecution in this county out of the hands of the local prosecuting Attorney Langley and placing it in the hands of Thornton, the State Attorney General.

This is a — the whole picture is a struggle for — it’s a local hassle and struggle between various law enforcement officers and various people in Oregon which is one excellent reason why the federal prosecutor in the federal court didn’t get into this whole thing in the hearing.

Now, on page 26, we have the words of the circuit judge at third full paragraph, “I’m not going to suppress the evidence in that case.

I am going to turn that over to the Attorney General,” and so on.

Now, Your Honors, neither court suppressed this evidence.

They held it subject to the orders of higher courts for possible future use.

It’s true the — see — the warrant has held — declared illegal, but there was no suppression of the evidence and one reason perhaps maybe that Oregon does not have a Weeks rule and so it was undecided until subsequent litigation what should be done with this evidence.

Now this petitioner’s case here rests on two pretty fragile supports.

One is the determination by this local magistrate in Oregon that the — this affidavit was invalid and the search and seizure was illegal, that’s his first point.

Secondly, is assertion that Oregon has a rule of exclusion along the lines of Weeks.

Now, throughout his brief and his argument, there are drawn various deductions as to the harmony of state and federal rule preventing conflicts, the logic of applying the same rules, all of which fall with this false premise that Oregon has, which it does not, a Weeks rule.

Now, on the first point on the determination of this local magistrate, again, I should like to — to turn to the record on page 24 and to show that on federal law at least as handed down this morning, this magistrate was clearly wrong.

In the first paragraph he says, “It is hereby ordered and adjudged that the affidavit in support of the search warrant, shows upon its face that it was based primarily upon information and belief only” and so on.

Now that, Your Honors, is the reason that the District Court, the local magistrate of the Justice of the Peace level and also the Circuit Court, thought that this whole search and seizure was illegal.

But as the decision in the Jones case holds, certainly that is not the standard in the federal courts because in page 13th of the slip opinion, this Court said, we conclude therefore, the hearsay maybe the basis for a warrant and it goes on to discuss that.

Earl Warren:

Mr. Wilkey, it looks to me that the order of the court goes a little farther that you — you have indicated here because in the fourth — in the fourth or the third full paragraph, the court says, “It is further ordered and adjudged said search warrant should be and this held be in all affects in nullity and then the article seized under the said search warrant, were improperly so seized and should be suppressed as evidence.”

Then — then let me go on please, “Then he goes on to — to make particular disposition of certain — certain articles that were taken because of certain special situations and the first one was that of course the slot machines are contraband, it can’t be used by anybody, so we destroyed it.”

Now, if he did — if he hasn’t suppressed it, hasn’t suppressed his inquire why would he have destroyed that?

Then secondly, because of this executive order from the Governor the State of Oregon as you say transferring everything to the — to another officer, they hold that — that these matters that are under discussion here, shall be turned over to the Attorney General to be — I see, to be disposed of legally and then the third and last — last disposition is that anyone who has any copies or recordings of the seized property shall surrender to — to the sheriff.

Now, that’s getting awfully close to a suppression, if isn’t a suppression where he says it’s no, a nullity and any article seized under the search warrant were — were improperly so seized should be suppressed as evidence.

Malcolm Richard Wilkey:

Mr. —

Earl Warren:

So what more should he have said?

Malcolm Richard Wilkey:

Mr. Chief Justice, I didn’t make it clear apparently going over that the first time.

The paragraph that you were very properly concerned with does not relate to the articles here before this Court.

Earl Warren:

That’s what you said that the next and last paragraph on page 24 that which I just referred to, did include that because in furtherance of the executive order from the Governor, those things were to be impounded with the Attorney General.

Malcolm Richard Wilkey:

Yes, Your Honor.

Malcolm Richard Wilkey:

Mr. Chief Justice that does refer that next to last paragraph does refer to the property here before this Court.

Earl Warren:

Yes.

Malcolm Richard Wilkey:

But the paragraph, two paragraphs above, where he says, “The search warrant is held in all affects to be a nullity.”

Now, of course, that applies to the warrant as a whole.

Earl Warren:

As the whole, yes.

Malcolm Richard Wilkey:

Yes indeed.

He did say that.

Earl Warren:

Yes.

Malcolm Richard Wilkey:

But the articles that he suppressed were those which were named in the warrant.

There were some recordings which were listed in the warrant and which were returned, I believe.

And it is those that are ordered suppressed, not any articles that are in this — involved in this case.

Earl Warren:

Well, he doesn’t say that any — any articles that were listed there.

He says it is further ordered and the judge said, “Search warrants should be and is held to be in all affects, a nullity and any articles seized under the search warrant were improperly so seized and should be suppressed as evidence.”

Now, that — that seems to me is all (Inaudible)

Malcolm Richard Wilkey:

Your Honor, whether likely or wrongly, we have always interpreted this phraseology here that any article seized under the warrant meant those named in the warrant because there were some that are named and seized and then, the — he differentiated between those items which he suppressed and the next two items, one was the slot machines —

Earl Warren:

I see.

Malcolm Richard Wilkey:

— and the other were these tapes which are here involved.

There is a careful differentiation there.

I believe Your Honor will find that —

Earl Warren:

I — I see — I see your point.

Malcolm Richard Wilkey:

And furthermore, I think that it’s true under Oregon law that this magistrate had no authority to — really to deal with anything except the items which were named and sought for in the warrant and then all he could do was to hold in any other items which might be gathered up for the Circuit Court.

Felix Frankfurter:

What was this — what was the scope of declaration of illegality by the Circuit judge, Mr. Wilkey?

Malcolm Richard Wilkey:

The same, I think, as the District Court.

Felix Frankfurter:

The same phraseologies?

I mean, was the point that you made in answer to the Chief Justice’s question, more clearly found by the state’s court as this?

Malcolm Richard Wilkey:

At this moment —

Felix Frankfurter:

All right (Voice Overlap) —

Malcolm Richard Wilkey:

— I don’t find the order of the Circuit Court here.

The words I think are clearly differentiate.

They’re on page 26, the once that I’ve read.

Earl Warren:

26 —

Malcolm Richard Wilkey:

Page — the middle of page 26 that’s the Circuit judge speaking, that’s for — speaking from the bench Judge Lionel.

Now, on the question of whether or not Oregon is a Weeks rule case, I refer to State versus Hoover and the — the language of the Court in State versus Hoover was this.

“The federal practice is to deny the use of such evidence, State versus Laundy, citing a 1922 case.

This rule of practice, they are quoting from Laundy, now this rule of practice sanctioned by the Supreme Court of the United States are for the same reason which recommended to that Court be adopted and followed by the courts of this State” from Laundy, which is a dictum.

Then the Court of Oregon goes on in the Hoover case, but there in Laundy, as here, it was not necessary to reach the question.

We have never been confronted with a case which has squarely demanded the decision to accept or reject the dictum of the Laundy case.

Now that statement of the Supreme Court of Oregon in State versus Hoover came down in November 1959.

That confirms Mr. Justice Frankfurter, I think, in his categorizing of the position of Oregon in Wolf.

It confirms the Oregon State law review article of — the Oregon Law Review Journal of an earlier date, which said that the question perhaps still could be decided that Oregon had gone with the Weeks rule of state.

William O. Douglas:

Well, isn’t it the best you can say, is this pretty much up in the air.

I’ve read that case too.

Malcolm Richard Wilkey:

I think that is true, Mr. Justice Douglas.

I — I — but our position is simply that is not a Weeks rule case, that there is no requirement of exclusion.

William J. Brennan, Jr.:

Well, Mr. Wilkey I am looking at page 225 of the record where Mr. Lonagan was questioned about the dismissal of the wiretap indictment and when he was asked, “Why did you urge that the indictment be dismissed,” at the bottom of page 225, his answer is, “For the reason that the Attorney General had wrongfully conceded that the evidence was seized illegally, so as to prevent a prosecution under the state indictment.”

What’s that mean?

Malcolm Richard Wilkey:

That, Your Honor, is part of the evidence showing the playback and forth, the tussle that was going on between people in a Bourdon in Oregon at this time.

William J. Brennan, Jr.:

Well, am I wrong then in — in reading this as in effect saying that was going to use in prosecuting a state indictment.

You couldn’t use the illegally seized evidence to support them?

Malcolm Richard Wilkey:

I think that is correct and Your Honor will —

William J. Brennan, Jr.:

That I’m correct in reading it that way?

Malcolm Richard Wilkey:

I think that you are, Mr. Justice Brennan.You will recall a few minutes ago, I said that Langley and his chief assistant wrote a letter in which they asked for the dismissal of these indictments which wasn’t taken up — action wasn’t taken on it for many months.

And as far as the position of the State Attorney General of Oregon, I — I would refer the Court to page 413 of the record in which the district judge, Judge Maris of this lower court, in the middle of the page 413, a — or little higher, the Attorney General, this Mr. Judge Maris saying, “The Attorney General has likewise asked me to rule on this point and he said he would abide by the ruling of the Court.”

Now a little further, Mr. Hewlett who’s one of the prosecutors for the State, says “The Attorney General has come into the situation and has asked the Court in Chambers concerning this matter has discussed it.”

So, this part of the play that goes on here.

William J. Brennan, Jr.:

Well, the only reason I’ve referred to this it seems to me at least this much is to whatever may be the state of the law in the Oregon Supreme Court for the purposes of this case, the officers who had charged prosecuting these state indictments, dismissed them for the reason that they thought the evidence having been determined to be illegal seized could not be used in the Oregon courts for said indictment.

Malcolm Richard Wilkey:

I think that is correct, but these same prosecutors that is Mr. Langley and Mr. — as chief assistant Mr. Lonagan not to be confused with the Circuit judge with the same name, those two prosecutors did not feel that this determination was correct and at the bottom of page 226 or in the middle of page 226, you will see Mr. Lonagan saying, “The raid was not illegal, sir.” And then down below at the end of the page, is — in referring to Oregon being a Weeks rule case, I might add that it is never definitely established in the State of Oregon that Oregon follows the federal rule and he goes on about that.

And then earlier at the very top of the page referring to the State Attorney General and he, the State Attorney General had seen to it that the evidence in favor of the State was not submitted on behalf of the State.

Now, the two prosecutors —

William J. Brennan, Jr.:

It’s all part of political hassle (Voice Overlap) —

Malcolm Richard Wilkey:

That is correct, Your Honor.

Felix Frankfurter:

I don’t understand — rather I’m confused by the reservation of Judge Maris to which you call our attention on page 24, in impounding some of this stuff and what you say is the tapes that are now in controversy, we found in those tapes that the request the Attorney General that it was intended in the portion read that the whole thing should be suppressed.

Malcolm Richard Wilkey:

I don’t know what the intent.

Felix Frankfurter:

Well, I’m just reading his order.

The order to which you call our attention on page 24, it’s next to the last paragraph.

(Inaudible) order of judge in view of executive order the same is hereby ordered impounded.

He held on at least only upon writ of the Attorney General that evidently a negative notion that in all of it was suppressed.

Malcolm Richard Wilkey:

Precisely, Mr. Justice Frankfurter, precisely.

Now, one other point on this, on the position of the state prosecutors, Mr. Langley and Mr. Lonagan and Mr. Hewlett who was handling the case before Judge Maris.

Over on page 412, I simply want to make this point that the state ruling of the State District Court, Judge Maris was purely on the face with the affidavit here, page 412 about seven lines down — six lines down.

I can see no further reason for continuing a hearing of this case because we always will have to go back to the affidavit which is the original, the starting document which I now find under the state law to be faulty.

Mr. Hewlett who is the prosecutor in charge of the case, “Your Honor, you haven’t allowed the State to put on any testimony at all or to argue the question?”

The court, “You can’t change this document.”

Mr. Hewlett “It’s just as good as gold, Your Honor.”

Now, my point there is that at no time in the State District Court or in the Circuit Court once the state prosecutor represented by Langley Lonagan and Hewlett allowed to offer any evidence that the ruling of the District Court was purely on the face of the affidavit that it was invalid because it was hearsay and this Court has said in Jones versus United States today that that at least, is not the federal standard.

And in State versus Hoover, we would argue that information of a reliable sort whether hearsay or not, can be made the basis of an affidavit even in Oregon.

Hugo L. Black:

May I ask you if he was relying on this hearsay only?

What is meant by the last clause, page 24, in the first paragraph?

I don’t quite understand that.

It seems that he was complaining that the excess things they were searching for (Inaudible) that they were searching photographs and there were none found.

Malcolm Richard Wilkey:

Which paragraph is that Mr. Justice Black?

Hugo L. Black:

The first paragraph on page 24.

It ends up by saying and that no photographs were among the property seized.

He had said that they got the affidavit on the basis that they were seeking photographs.

Malcolm Richard Wilkey:

That’s correct.

Hugo L. Black:

And he then says no photographs were seized.

How did he know that, did he have evidence?

Malcolm Richard Wilkey:

There was a return made on the warrant.

The return made on the warrant which was before it.

Hugo L. Black:

So what was he using that part to show that the affidavit was illegal or that he wouldn’t — the search warrant was bad?

Malcolm Richard Wilkey:

I don’t know, Mr. Justice Black.

Hugo L. Black:

It seems to me that both indicate because I don’t know what that means.

It seems to be indicated there that he was saying that they had obtained this affidavit and search warrant on seeking photographs and that they had no photographs and it was there.

The photograph of the —

Malcolm Richard Wilkey:

Well, Your Honor I would say — that you can no more rule the warrants illegal by what is found or not found after it then you can rule it legal, by what is found or not found, I think this Court has said that at least in one case, they did — the — the warrant was for two things.

Indecent photographs, indecent recordings, they found some recordings and made return on the warrant, they didn’t find the photographs.

They did find also the slot machines and the other tapes which are before this Court.

Hugo L. Black:

Well, there was a disagreement this morning as to whether or not, the facts and I think Justice — Mr. Justice Frankfurter emphasized that, we were deciding it on the facts of that as whether or not was probable cause.

Malcolm Richard Wilkey:

In the Jones case?

Hugo L. Black:

Yes.

Malcolm Richard Wilkey:

Yes, Your Honor.

I would like to cite the facts on which district attorney and Langley relied and on which he got to his affidavit, the probable cause that he had.

First of all —

Earl Warren:

I think we might as well recess now, before you start that.