Jones v. United States – Oral Argument – April 08, 1958

Media for Jones v. United States

Audio Transcription for Oral Argument – April 07, 1958 in Jones v. United States

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Earl Warren:

Number 331, Roy Jones versus United States of America.

Had you completed your opening argument, Mr. Asinof?

Wesley R. Asinof:

Yes, Mr. Chief Justice, I would like to reserve about five minutes of my time (Inaudible)

Earl Warren:

You may reserve the rest of your time if you wish.

Mr. Grimm.

Engene L. Grimm:

May it please the Court.

The facts of the case are these.

On April 30, 1956, federal agents in the Northern District of Georgia received a tip from an informant that petitioner had installed a distillery in his farmhouse.

He had — he had previously had experience along that line and so the agents proceeded to his farmhouse, to the vicinity thereof to investigate the situation.

They found spent mash running from a rubber hose into a small river, in a hollow behind the farmhouse and traces to within approximately 50 yards of the house.

The following day, which is May 1st, 1956, they again returned to the vicinity.

They found at that time, spent mash was once again running into the stream.

They could smell the odor of cooking mash in the area.

They could hear the sound of a blower burner in operation.

Here, I might say that a blower burner is used to transmit fuel oil to the boiler, which generates steam and steam is then in turn used in distillation process.

They also heard voices and bumping noises and continued their surveillance at that time until about 2:00 a.m.on the morning of May 2nd.

So, as of that time, the agents knew that a distillery was in operation within the farmhouse and they knew that several persons were involved, because for — from time to time they could see people moving around the premises.

Felix Frankfurter:

Would you mind — would you be good enough to tell me if — if the record discloses or a — a judicial notice of it.

This was a farmhouse near Dawsonville.

Engene L. Grimm:

Yes, sir.

Felix Frankfurter:

How do we get the — was there a United States Commissioner at Dawsonville?

Engene L. Grimm:

Not so far as I know, Your Honor.

Felix Frankfurter:

Well, where was the United States Commissioner?

Engene L. Grimm:

I believe —

Felix Frankfurter:

The nearest access to this farmhouse.

Engene L. Grimm:

I believe Andersonville, Georgia.

How far is that?

Engene L. Grimm:

It was a drive for the federal officers of about 30 to 45 minutes, each way.

Felix Frankfurter:

They of course had cars, did they, the federal officers?

Engene L. Grimm:

They had one car for the five.

Engene L. Grimm:

They were five in the group.

I — I’d like to say on page 40 of the record, State Agent Hollingsworth is testifying and he testified, it took 30 to 45 minutes to drive out there.

Later on that day of May 2nd, in the afternoon, the agents procured a daytime search warrant and proceeded in a party of five again to the vicinity of the farmhouse.

They arrived there in about an hour before darkness.

It was a gray overcast the day.

They took up a position in a small grove across the road from petitioner’s farmhouse.

And the agent in charge, elect in charge — elected to continue his investigation rather than serve the warrant at that time.

He testified that he did this for two reasons.

Number one, he wanted to learn whether any other persons were implicated in the operation of this distillery.

He wanted to learn who they were and he also wanted to learn whether there were any vehicles involved.

It began to rain heavily and the rain slackened off then at about 7:00 p.m. or thereabout.

The agents heard voices from the farmhouse.

The voices inquired whether someone would like to bring up the truck at that time and an unidentified person left the premises and went down to the home of petitioner’s father, which is about a quarter of a mile down the road.

Thereafter, a truck was driven into the farmyard and driven around behind the farmhouse, out of sight of the agents.

Then, the agents saw people moving around in the house through a window, a lighted window.

They heard heavy bumping noises, as though heavy objects were being moved.

And — and about 9:00 or 9:15 p.m., the truck motor was started and the truck began to drive around from the corner of the farmhouse.

The agents then began to move across the road and as the truck arrived at the driveway to the farmhouse it became mired.

At that point, the agents overtook the truck and they arrested two persons who are on the truck.

Number one, James McKinney, who’s driving the truck and Grady Jones, the brother of petitioner, was on the back.

What time is that?

What time of the day (Inaudible)

Engene L. Grimm:

This was about 9:00 or 9:15 p.m., Your Honor.

They also found 413 gallons of nontaxpaid alcohol on the truck.

William J. Brennan, Jr.:

Tell me Mr. Grimm, tell me you rely on the arrests of the people on the truck as having any bearing on the lawfulness of the entering of the house?

Engene L. Grimm:

We rely upon it, only insofar that it contributes to the entering that the — to the inference that the agents entered for the purpose of making an arrest and not for the purpose of searching for contraband, having made the — as I will say later, having made two arrests, having known that several persons were involved, having known that one of those persons was petitioner, he not having been on the truck but having been vitally interested of course in the removal of the fruits of his operation from the premises.

We think that we have reasonable inference that the agents could believe that he was therefore in the house.

William J. Brennan, Jr.:

Well, then that — that it says a matter of evidence, in other words, that it is evidence which shows light upon that purpose in entering the house is really a purpose to make an arrest.

Engene L. Grimm:

That is the Government’s contention, Your Honor.

Yes, sir.

Tom C. Clark:

No arrest wasn’t in fact made at that time?

Engene L. Grimm:

No.

As a matter of fact, it was not.

After seized — after making the arrest on the truck and after seizing the alcohol on the truck, the agents then moved to both the front and back door.

And State Agent Hollingsworth, as a matter of fact, was the first one that came to the front porch.

Now, while they were making the arrest at the truck, an unidentified carrier had come down the public road, turned into the driveway through another entrance or turned into the farmyard through another driveway.

And so when Agent Hollingsworth arrived at the front porch, he found petitioner’s wife and petitioner’s 12-year-old son there present.

Now, the boy was standing inside the doorway and he was holding a shotgun at point arm.

Hollingsworth asked him to hand over the gun, he refused to do so.

Hollingsworth then asked his mother to tell the boy to hand over the shotgun, she refused to do so.

After some conversation then, Hollingsworth edged closer and finally succeeded in jumping through the doorway and seizing the shotgun.

William J. Brennan, Jr.:

Well, now Mr. Grimm, in that respect, his testimony.

“I was standing in the door at that time,” I’m looking at page 38, “Hadn’t entered.

So, ever when the kid got close enough so that I could get to the gun.

I got the gun, sir, got the gun from the kid.”

Now, does that show that he entered?

Engene L. Grimm:

No, sir, but the District Court expressly found in its findings of fact that the first entry was made by Hollingsworth for the purpose of disarming the boy.

William J. Brennan, Jr.:

Well, that’s — that’s the only testimony —

Engene L. Grimm:

That’s —

William J. Brennan, Jr.:

— is it, upon which (Inaudible)

Engene L. Grimm:

Page —

William J. Brennan, Jr.:

— finding the arrest.

Engene L. Grimm:

Well, except that he had repeated his testimony, but that is the only expressed statement that he made.

William J. Brennan, Jr.:

Well, I thought you support any finding that he had — he entered to get the gun, does he?

Engene L. Grimm:

Well, I think that that is the gist of his entire testimony.

William J. Brennan, Jr.:

How can it be when he says, “I was standing in the door at that time, hadn’t enter.

So, ever when the kid got close enough so that I could get to the gun, I got the gun, sir.

I got the gun from the kid.”

Engene L. Grimm:

Well, here, I should point out that earlier in his testimony — testimony Hollingsworth said.

Hugo L. Black:

Where is that?

Engene L. Grimm:

On page 37.

“I went on the porch, Mr. Jones, was at the porch — on the porch rather and as I run upon the porch, a small boy there grabbed a shotgun and held it up more or less as at port arms and he went to the back.”

That is from front to back to the house.

“I hollered to Woody and Jim that he was coming to the back door with a gun, to look out.”

And after he went to the backdoor, I told Mrs.Jones, “Make the boy put the gun down.”

And she says, “I’m not going to do it.”

Asked for a search warrant and I told her, “We didn’t need a search warrant,” and the kid came back toward me, through the house again and I kept telling him, “Son, don’t you shoot me.

Give me that gun,” and he never would do it.

I was standing in the door at that time.

I haven’t entered.

So, ever when the —

And did —

Engene L. Grimm:

— the kid got close enough — from this, I think that the inference may flow that the first entry into the residence was made by Hollingsworth to secure the shotgun because the boy had been —

William J. Brennan, Jr.:

Well, I don’t see where you’re making this inference that he had entered when he said he hadn’t entered.

Engene L. Grimm:

Not at that point, but then, when the boy got close enough, he — as he said, went for the gun.

I got to the gun.

And entered at this time was (Inaudible)

Engene L. Grimm:

Yes, sir.

That’s your predicament.

Engene L. Grimm:

Yes, sir.

Well, there’s no dispute that after he disarmed him, they prolonged their visit in the house.

Engene L. Grimm:

Thereafter, Agent Langford, who was in charge of this group and Agent Evans, entered the house.

Now, in the house, they found petitioner’s father —

William J. Brennan, Jr.:

Before you get to that.

Engene L. Grimm:

— and petitioner’s brother.

William J. Brennan, Jr.:

I noticed that one of the other officers, was it Evans?

I guess he was a federal officer, Hollingsworth was the state officer, wasn’t he?

Engene L. Grimm:

That’s right, sir.

All the rest were federal officers.

William J. Brennan, Jr.:

Federal officers?

Engene L. Grimm:

Four of them.

William J. Brennan, Jr.:

I noticed that at page 31, Evans says, “She,” that’s the wife, “was standing in the front door.”

Engene L. Grimm:

Yes.

William J. Brennan, Jr.:

As I came in, in the door, she was standing in the front door with her hands like this, spread from one side to the door way to the other.

And the trial judge, the finding is that Mrs. Roy Jones undertook to block the door way to keep the officers from entering the dwelling house, telling the officers to wait until her husband Roy Jones returned.

Now, did the officers break-in or forced their way in?

Engene L. Grimm:

A little further on, on that page, sir, on page R31.

Question “Did you push or shove Mrs. Jones or do anything like that?”

Answer “I did not touch Mrs. Jones as I went in the house.”

William J. Brennan, Jr.:

Well, even if they didn’t, is there — would — did she admit them?

Was it they —

Engene L. Grimm:

I don’t know.

I’m willing to — I’m willing to say that the record shows that she protested their entry.

William J. Brennan, Jr.:

Well, have — then — then she more than — what you call their entry then was it —

Engene L. Grimm:

Well, I’m — I’m going permission or did they —

William J. Brennan, Jr.:

(Voice Overlap) —

Engene L. Grimm:

Well, no.

She — she did not consent to the entry and even if she had, I suppose we would have — that could then be very reasonably said, that well, this was called acquiescence.

William J. Brennan, Jr.:

Well, then, wasn’t it — wasn’t it a breaking-in?

Engene L. Grimm:

Well, it was an entry of a protest.

William J. Brennan, Jr.:

That wasn’t my question.

Wasn’t it a breaking-in (Voice Overlap)?

Engene L. Grimm:

Well, Your Honor, the reason — I don’t want to use that language “breaking-in” is because “breaking-in” for the purpose of arrest, that is in testing whether there was a “breaking-in” in the law of arrest is “breaking” has the same meaning and “breaking” has in the law of burglary.

William J. Brennan, Jr.:

You mean that perhaps to be a window forced or a door forced opened?

Engene L. Grimm:

Or a door opened or something of that sort.

William J. Brennan, Jr.:

And this would not come into the category of break-in?

Engene L. Grimm:

No, sir.

William J. Brennan, Jr.:

I gather then, is that the reason the Government hasn’t taken the position it did in the Miller case a few weeks ago that it would be necessary to give notice of the purpose of coming in if you are breaking-in?

Engene L. Grimm:

Well, here — here, sir, first, I must say that on — on the motion to suppress which was filed by petitioner, he contended that the search was unreasonable and that he had not consented to it and he spelled out no specific reason why he believes to be unreasonable.

Now, at the trial, an issue was never made, as it was in the Miller, as to whether or not the agents had given notice of their purpose before entry.

Engene L. Grimm:

And so, in the course of a narrative statement, Agent Langford testified that he told Mrs. Millers his name.

He told her that he was a federal officer.

She asked for a search warrant.

He said that he didn’t need any and that he intended to enter.

William J. Brennan, Jr.:

But he never told her why he wanted to go in.

He never told her he was entering for the purpose of arresting the petitioner, did he?

Engene L. Grimm:

The — the record does not show that he ever told her that and he was never asked.

William J. Brennan, Jr.:

Well, he didn’t tell anybody the purpose, did he?

Engene L. Grimm:

Well —

William J. Brennan, Jr.:

Why he was entering?

Engene L. Grimm:

The record simply doesn’t say, Your Honor.

William J. Brennan, Jr.:

All right.

Whether we got what the record to go upon, is there anything in the record at all that shows that he announced his purpose for desiring to enter?

Engene L. Grimm:

No.

There is nothing in the record that shows that, Your Honor.

On the hand, it was never an issue in this case.

William J. Brennan, Jr.:

Well, I — I’m just interested how the Government distinguishes this from the Miller case, the position that took there was that even if it was an entry on probable cause to make an arrest, it would be unlawful entry except there’s a purpose to the (Inaudible)

Engene L. Grimm:

Well, all I — I don’t believe that there’s any inconsistency here, Your Honor.

There, in the Miller case, there was an issue as to whether they had announced the purpose for their entry.

Here, it never was an issue.

No one —

William J. Brennan, Jr.:

Well, if this was breaking-in —

Engene L. Grimm:

— regardless of the relevance of the law, and so the officers (Voice Overlap) —

William J. Brennan, Jr.:

If this was a breaking-in, as to which a prior statement of purpose for the breaking is required, would it be any less and unlawful entry because the petitioner didn’t raise the question?

Engene L. Grimm:

Well, I — it would not be any — the less provided that the record established that.

But here, I will — I cannot accept the proposition that there was a breaking-in.

William J. Brennan, Jr.:

That is because they didn’t break a door or a window and that’s your —

Engene L. Grimm:

If I will —

William J. Brennan, Jr.:

— view of what’s the breaking is?

Engene L. Grimm:

Sir?

William J. Brennan, Jr.:

That is your view of what a breaking is?

There couldn’t be if they did force their way pass Mrs. Jones, that would not be a break-in?

Engene L. Grimm:

So long as — well, so long as there was no manhandling, no touching, no forcing her out of the way, certainly.

William J. Brennan, Jr.:

Well, what was it if they entered over her protest.

Well, (Voice Overlap) —

Engene L. Grimm:

Well, she told him she didn’t — she told them that she wanted them to wait until — until —

William J. Brennan, Jr.:

I mean, what kind of entry was it then?

Engene L. Grimm:

Was — was —

What sir?

William J. Brennan, Jr.:

They weren’t admitted voluntarily, wasn’t it?

Engene L. Grimm:

No, sir.

William J. Brennan, Jr.:

Well, then they entered what?

Engene L. Grimm:

Well, it’s simply they entered over her protest.

They did not break-in.

Having —

Earl Warren:

She was — suppose she was out on the porch and — and protested the entry and they just paid no attention to it, went over and opened the door and walked in, would that — would that be a break-in, an entry?

Engene L. Grimm:

Well, once it would depend upon the lawfulness of their entry.

Otherwise, as we argued in Miller and as I say here, they’re entitled to break-in or enter on over protest only if they have reasonable cause to believe that they can make a valid arrest inside the house, only if they have probable cause for an arrest and only if they have reason to believe that the person that they seek is within the house.

And so, once again, it is not the determinative factor in testing whether the entry is illegal.

Did the District Court make any finding pf the purpose of the entry was to make an arrest?

Engene L. Grimm:

Here, I must say that the District Court’s finding was rather ambiguous.

However, we believe fairly implicit within his finding is the drawing of the inference that the agents entered to make an arrest on probable cause.

Well, as I read the District Court’s opinion, it seemed to me that their construction of it was rightly or wrongly, that he said that we didn’t have to have a search warrant, that it suffice to have reasonable grounds for believing that there was contraband or something on the premises.

And that without a search warrant, that was enough to justify the entry.

And you don’t undertake to defend the case on that basis.

Now, that’s the way I read the record.

Engene L. Grimm:

Well, the Taylor case is on the books.

It’s — yes, it is.

Engene L. Grimm:

Johnson is on the books.

There are other cases —

But isn’t it — isn’t it —

Engene L. Grimm:

— of similar import —

Isn’t the — isn’t the — to be frank about it, isn’t the plain truth in the matter that you don’t undertake to justify the search on the premise — on the premises on which the District Court put them?

Engene L. Grimm:

No.

Well, Your Honor, I — we do not defend this on the proposition that a probable cause to make a search for contraband alone justifies an entry.

It has to be an incident to an arrest, that’s your case?

Engene L. Grimm:

Well, it has to be incident to an arrest or it has to be an entry made for the purpose of making an arrest.

Yes.

Engene L. Grimm:

On reasonable cause to believe that appellant is within the house.

Now —

Felix Frankfurter:

You left me — you left me in doubt —

Engene L. Grimm:

Sir?

Felix Frankfurter:

— by your answer to the question by Mr. Justice Brennan and to the Chief Justice, namely, are you saying there was no breaking in the circumstance on the fact of this case or are you saying that this — they had a lawful right to enter.

You did no more, of course, that was necessary to make the arrest.

You don’t have to bother about whether there was or was not a breaking, which is it?

Engene L. Grimm:

The latter, Your Honor.

However —

Felix Frankfurter:

Then — then you don’t have to enter to a colloquy between you and Justice Brennan of what — what constitutes a breaking is from your point of view to be irrelevant, is that right?

Engene L. Grimm:

In the ultimate resolution of this case, yes, Your Honor.

On the other hand, I don’t think that the facts carry —

Felix Frankfurter:

Well, I —

Engene L. Grimm:

— this case so far as to say there was a breaking.

That’s all.

Felix Frankfurter:

Well, if it is irrelevant, then the first thing here then — then you maybe — you may have to take that other sense you drew up.

But the first thing on which you stand, I gather therefore as an answer to Chief Justice’s question, that whatever it may be denominated is before — to be determined nearly as to whether or not it was a breaking, you don’t have to pass on it.

You will have to take the position, because you justify that the lawful entry to make a lawful arrest, is that right?

Engene L. Grimm:

That is precisely so, Your Honor.

William J. Brennan, Jr.:

Now, you’ve got me confused, Mr. Grimm.

I thought you told me before that if there was a breaking, if this was a break-in the circumstances of this case, consistent with the position that the Government took in the Miller case.

It could not be a lawful entry, even for the purposes of making an arrest on probable cause unless that it was first announced the purpose of the entry.

Engene L. Grimm:

That was — that was the case in Miller, Your Honor.

William J. Brennan, Jr.:

Now, what — what are you saying here?

Are you saying here that even if there was a breaking, no statement of purpose was required or that there was no breaking in the facts of this case?

Engene L. Grimm:

Well, for the purpose of this argument, for the purposes of this case, I say that it is irrelevant that they entered over protest.

William J. Brennan, Jr.:

Well, is that because this was not a breaking?

Engene L. Grimm:

No, it is because an issue was never made, as it was in the Miller case, as to whether or not they had given notice to the wife —

William J. Brennan, Jr.:

Well then, if I understand it, that means that even if this was a break-in in these circumstances, since they never heretofore raised the question of the requirement of prior notice of purpose or entry, that is she was not before, is that it?

Engene L. Grimm:

Yes, Your Honor.

That once again we differ as to whether there was a breaking —

Felix Frankfurter:

What —

Engene L. Grimm:

— on the fact.

Felix Frankfurter:

We can understand that the — or defending a case or this particular case.

Okay, this is my position but even if you — the Court goes against me and then move on to the next one.

But I do submit the importance of the clarity of understanding not to mix the two up and say, because I understood to take the position, one, we don’t have to consider breaking in this case in view of the fact of the circumstances of the entry for the purpose of the arrest is lawful.

Engene L. Grimm:

Yes.

Felix Frankfurter:

You think that?

Engene L. Grimm:

Yes, sir.

Felix Frankfurter:

You then move on however and say, if the Court’s (Inaudible) goes against me on that, I contend in the alternative that in fact there was no question.

Engene L. Grimm:

Yes.

Felix Frankfurter:

I don’t believe this position of yours.

I suggest —

Engene L. Grimm:

Yes, sir.

Felix Frankfurter:

— to be kept apart.

Engene L. Grimm:

Yes, Your Honor.

If I may — if I may continue, after entry, the agents found petitioner’s father and petitioner’s brother inside the house.

They did not find petitioner.

They also found a distillery in a room on the main floor of the house.

Leading up in this room was a stairway to the attic.

In the attic, they found barrels.

They found 2700 gallons of mash, a mash found in all of the other paraphernalia, usually associated with the operation of a distillery.

Engene L. Grimm:

They came back downstairs, inquired with Mrs. Jones and the boy and then went up on the front porch and waited for petitioner.

He returned home at about 10:00 p.m. and admitted ownership of the still and denied that the liquor found on the truck came from his operation.

Thereafter, the agents made the seizure of the still and destroyed that portion which they could not remove with them.

Your claim is that the seizure was made after the arrest?

Engene L. Grimm:

Yes, sir.

They opted it, what occurred before Jones showed up was —

Engene L. Grimm:

Yes, sir.

— simply a reconnaissance.

Engene L. Grimm:

Was a — well, it was a search for Jones.

I say though on the basis of the fact that it is Roy Jones who tell this — in his testimony, what it is that the agents did, in connection with this distillery.

On page 14, he says the question, “Now, then, did they seize that or destroyed or take it with them or what?”

They took part of it with them and destroyed the rest.

Destroyed it right there in the house or take it outside?

They destroyed everything in the house rather — rather than the beer or the mash whichever one you might want to call it.

They pumped a good deal of heat out and left the rest.

This, I take it to — from this, I believe you can draw the inference that he was there when they did it and that would have to be after he returned.

William J. Brennan, Jr.:

Let — let me see if I get this now.

Is this the position that there was no seizure at all until after Jones got home?

Engene L. Grimm:

Yes, sir.

William J. Brennan, Jr.:

What — what was that they have done before that?

Engene L. Grimm:

They had entered and they have looked through the house for petitioner and they had come upon the contraband in plain view.

William J. Brennan, Jr.:

But they’ve done nothing with anything until he arrived home?

Engene L. Grimm:

That’s right, Your Honor.

William J. Brennan, Jr.:

Well, now, are you cogitating the legality of the seizure then upon the fact that all were secured after he came home and was placed under arrest?

Engene L. Grimm:

That would not necessarily be so, Your Honor, because we contend that the contraband having been in plain view after a lawful entry and the agents having come upon it in plain view after a lawful entry.

It was subject to immediate forfeiture and seizure by these agents.

William J. Brennan, Jr.:

Well, that’s the position you take in your brief, isn’t it?

You don’t relate this until Jones’ returned home.

You relate it to the fact that you had a reasonable cause for entering, thinking he was their when you entered, isn’t that it?

Engene L. Grimm:

That’s right, Your Honor.

Engene L. Grimm:

However, that is simply the — the way the facts happened as — as I believe they are to be found.

We do not contend that the search of a dwelling house is justified on probable cause to believe that contraband will be found within.

However, we do believe that agents may — if they have probable cause to make an arrest and reason to believe that the person they seek is within the dwelling house that they may enter for the purpose of finding him and arresting him.

Felix Frankfurter:

And —

Engene L. Grimm:

And that having — then, coming upon contraband in plain view, the contraband is subject to seizure.

Here, I might also say that this case stands on the same footing as one where an arrest is made after entry, even though no — as it turned out, no entry — no arrest was made thereafter because if the test of whether or not they’re entitled to make an entry is reasonable cause to believe that the person is within there then the fact that the arrest isn’t — is not made thereafter, cannot be the determining issue.

We could not justify an entry by what is found thereafter on the person if someone who was arrested.

We could not justify his arrest by the fact that he might be found committing a felony.

The test is still whether there was probable cause to believe that he was committing a felony at the time of entry.

And so, the fact that an arrest could not be made ultimately, does not measure the lawfulness of the entry.

Nonetheless, we come back to the proposition that if they had reason to believe that the person they sought was within the house and if they had probable cause to make an arrest, then the entry is lawful.

If Jones had never come back to the house at all, your position would be that they could have seized the —

Engene L. Grimm:

They could have made the seizure at the time —

— (Voice Overlap) in the house.

Engene L. Grimm:

— they were first within the house.

Yes, sir.

That’s your position?

Earl Warren:

What constituted the seizure?

Engene L. Grimm:

The taking of the barrel, the boiler, and the burner.

Earl Warren:

Not the taking possession of the household and what’s in there, and dispossessing those who are living there at the time, although they were not — practically not confused of violating the law themselves?

Engene L. Grimm:

No, Your Honor.

It is —

Earl Warren:

You can do a — can you break into a house and go all through the — the house and search it and find something that is — is contraband and stay there as officers of the law, in charge of it without having made a seizure?

Engene L. Grimm:

Well, by — by finding and then taking charge of it.

Earl Warren:

Do you mean that there is no seizure until — until they removed it from the premises?

Engene L. Grimm:

Well, I would say there that the seizure occurs when they first exercised dominion over the —

Earl Warren:

So when did they first exercise dominion in this case?

Engene L. Grimm:

Well, I would — I would say that when they first came upon it —

Earl Warren:

(Voice Overlap) —

Engene L. Grimm:

— because certainly thereafter, they would not permit anyone to remove it.

Earl Warren:

Yes.

But now wasn’t that — would then the seizure take place then rather than when Jones came home?

Engene L. Grimm:

Well, in — in legal theory that might well be —

Earl Warren:

Well, aren’t we talking about —

Engene L. Grimm:

— in practical —

Earl Warren:

Aren’t we talking about legal seizure?

Engene L. Grimm:

In — in practical — well, yes, Your Honor.

But in practical effect, when they put their hands on it, when they made a physical seizure was after Jones returned.

Earl Warren:

What are you relying on now, the time as before the seizure?

I understood you a little while ago to say that you dated the seizure from the time that Jones came home, but I understood your question to me that in point of law the seizure actually took place when they took dominion over the home.

Engene L. Grimm:

I would say that that is in legal theory when the seizure took place.

Yes, Your Honor.

Earl Warren:

Well then, for the purposes of this case, when did the seizure take place?

Engene L. Grimm:

When they came upon the contraband —

Earl Warren:

In —

Engene L. Grimm:

— I would say.

Earl Warren:

In the home?

Yes.

Engene L. Grimm:

In the home.

Earl Warren:

All right.

Felix Frankfurter:

Mr. Grimm, your time is nearly up and you haven’t (Inaudible)

Engene L. Grimm:

Sir?

Felix Frankfurter:

— for me is the most important question.

Engene L. Grimm:

Yes, sir.

Felix Frankfurter:

And I’d like to point it.

Is it the comment or in relation to a phrase that you’ve just used a minute that you mentioned before, having gone in there, having entered, was viewed to arresting somebody who they have the right to arrest with probable cause.

You used the word, the phrase, “They came upon the things that they seized,” is that right?

Engene L. Grimm:

Yes, sir.

Felix Frankfurter:

Now, did they come upon them then in the sense which come upon means something that they had to find unexpected, a revelation or —

Engene L. Grimm:

Well —

Felix Frankfurter:

— it’s not a fact that for two days, they had probable cause on the basis of which to comply with the Fourth Amendment?

Engene L. Grimm:

Well, Your Honor —

Felix Frankfurter:

Is that right, that they did had probable cause for two days to go to a Commissioner and get a search warrant, is that right?

Engene L. Grimm:

As of the morning — 2:00 a.m. in the morning of May 2nd —

Felix Frankfurter:

So from —

Engene L. Grimm:

— they had probable cause, at least then.

Felix Frankfurter:

So that — and — and when did they begin this?

Engene L. Grimm:

Well, that —

Felix Frankfurter:

Could you give me the order?

Engene L. Grimm:

That evening, that evening.

Felix Frankfurter:

So they had the whole night, whatever that was, (Voice Overlap).

Engene L. Grimm:

Well, a day — a day.

Felix Frankfurter:

A day.

So that for a full day, they could have brought them — held within the Fourth Amendment, namely, the right of the people to be securing their person, how could a state in effect, against unreasonable search and seizure?

The Government interfered with cases and I’m sorry to say that the Court I think has taken that brief out of context against unreasonable search and seizure shall not be violated as no warrant shall issue.

In other words, warrant appears there for the first time in relation to what we preceded, namely, an unreasonable search and seizure, is something by which no warrant was issued because it says there, no warrant shall issue.

That’s the way to avoid unreasonable search and seizure, except in the restricted and limited, and closely confined situation of necessity where you couldn’t get a warrant issued.

Engene L. Grimm:

Well, Your Honor.

Felix Frankfurter:

And you said they came upon it?

I point it to you that they had (Inaudible) a day, a whole day which they could have gone to the very (Inaudible) and got to this farm.

Engene L. Grimm:

I think so.

Felix Frankfurter:

So, I think it came upon as a rather — may I say loosely of describing their experience.

Engene L. Grimm:

But may I — may I —

Earl Warren:

As a matter of fact, you were — you were in the Commissioner’s office that day on this same subject and you did do the affidavits where — that you have probable cause at that time, is it not?

Engene L. Grimm:

Yes, Your Honor.

They — they had — as I say, that was after 2:00 a.m. on the morning of May 2nd.

That afternoon, they did go and obtained a daytime search warrant.

Earl Warren:

Yes.

And that was based on probable cause to believe that there was a still in that house.

Engene L. Grimm:

Yes, Your Honor.

Earl Warren:

And that was based on the affidavit of the officers.

Engene L. Grimm:

Yes, sir.

Now, may — may I answer your — take time to answer your question, sir.

Earl Warren:

Yes.

Go ahead.

Engene L. Grimm:

First of all, when I used the word “came upon,” they — they entered the house as we contend to arrest petitioner.

Now, there has been a good deal of commotion outside and they could reasonably infer that he might be hiding inside the house.

And so, they could look into each room in the house.

Now, they didn’t know where in the house was the distillery was and when I say, “They came upon it,” I mean, “they came upon,” it’s exactly the case (Voice Overlap) —

Felix Frankfurter:

In that case, that was all the issue.

Engene L. Grimm:

Yes, sir.

Now, insofar as the Fourth Amendment is concerned, it is true as — as you — certainly true as you’ve just said that it begins a person — people shall be secured against unreasonable searches and seizures and that no warrant shall issue.

However, I do not believe that the Amendment has been read by this Court, to mean that the latter portion of the Amendment limits the first portion.

And so, through judicial decision, we have evolved the concepts of certain kinds of searches that are reasonable, thus, the search on proper warrant.

Search warrant is reasonable, thus, the search incident to arrest is reasonable.

William J. Brennan, Jr.:

Arrest on warrant.

Engene L. Grimm:

Sir?

William J. Brennan, Jr.:

Arrest on warrant.

Did this Court ever gone beyond that?

Engene L. Grimm:

Arrest on probable cause.

Yes, Your Honor, in Agnello.

William J. Brennan, Jr.:

Assert —

Engene L. Grimm:

In Agnello versus U.S., 269 U.S.10 —

William J. Brennan, Jr.:

Wasn’t that the one where they saw him through the window?

Engene L. Grimm:

Yes, sir.

But that was an arrest on —

William J. Brennan, Jr.:

That’s very different from this one, is it not?

Engene L. Grimm:

That was an arrest on probable cause, Your Honor.

Felix Frankfurter:

Without warrant?

Engene L. Grimm:

Without warrant.

Felix Frankfurter:

As to what?

William J. Brennan, Jr.:

Where they saw the actual crime through the window being committed?

Engene L. Grimm:

It was committed —

William J. Brennan, Jr.:

Yes.

Engene L. Grimm:

Well, the construction is, it’s committed in their presence because they saw it, but a felony is also generally construed to be in your presence —

William J. Brennan, Jr.:

Well, I suggest you do.

Engene L. Grimm:

(Voice Overlap)

William J. Brennan, Jr.:

It’s a very different case than the one we have here.

Felix Frankfurter:

May I say that I’m entirely — I think your answer to my question is that — actually, I won’t say it fairly because I assumed counsel — I assumed the counsel (Inaudible) in answering the question.

I think it’s accurate and that’s why I question your — your petition here, it’s the argument yesterday in asking him whether he’s asking us to overrule or whether he is standing on the cases that has been decided because I think you’re quite right in making the comment that was made.

But I wish to add to that that in the field which — in which there has been so much conflict, such conflict within the Court.

I respect the decision as long as it stands.

We’re dealing here with a constitutional problem as to which it has been continuous difficulty and difference in the Court.

And therefore, I suggest that the Government ought to be prepared to defend their position and not here withstand on the immediate result of a contested case.

(Inaudible)

Engene L. Grimm:

Sir?

Kindly —

(Inaudible) provided by law.

It took a long copy of Rabinowitz with them, when they made this search.

Engene L. Grimm:

[Laugh]

I don’t believe I said that, Your Honor.

Whether or not they did.

Felix Frankfurter:

Could we reject that they were entitled to stand on it, if it’s covered?

Engene L. Grimm:

Yes — yes, sir, surely.

And it is one of the later pronouncements of this Court.

Thank you Your Honors.

Earl Warren:

Mr. Asinof, you may close your argument.

Wesley R. Asinof:

I would like to take the remaining time that I have to answer a question from Mr. Justice Brennan, with reference to the force angle that was used in — and call the Court’s attention to the brief filed by the petitioner on page 19 of that brief.

There’s an appendix in there of the testimony of Mrs.Roy Jones as to this particular portion, right toward the bottom of the page, this is her answer.

Speaking about the agent, the federal agent, he says, “We don’t wait.”

Wesley R. Asinof:

So, he kept pushing and I kept pushing back and they’d sling me first one way and the other.

But then, I come back on them and there’s one of them, that little old, I don’t know which one he was, a little short one, he told my little boy, he said, “You stand back or I slap your brains out,” and I say, “You won’t put your hands on my kid.”

And I asked the question, “How old is that little boy?”

And said — she said, “Well, he was 12 at that time.”

I say, “You won’t put your hands on my kid.”

He says, “I’ll slap his damn brains out,” and there was another one there.

He said to that other one, he says, “Here, put this handcuffs on him.”

He slapped my hands behind me and got one of the handcuffs on me.

Woody come up and say, “You take the handcuffs off of her,” so he took the handcuffs off of me.

And then right on the bottom of page 20, in response to a question on cross-examination by the District Attorney.

Question “And they didn’t do anything to you except to go pass you and get into the house?”

Answer “No.

They — I was at the door and they pushed me against the side of the door and I run in front of them again.

They would push me back up against the wall and I’d come back and I’d pushed them again.

And when they put their feet and skinned — well, they had skinned my feet all over kicking.

I reckon not stopping, as I was pushing them backwards.”

Now, the record just shows that this was —

Where do you recall that, in your appendix in your brief?

Wesley R. Asinof:

Yes, Your Honor.

It’s in the appendix on page 19 and 20.

You have it printed in the record?

Wesley R. Asinof:

No, Your Honor.

We — we omitted it from printing, but we put in the other — in as much as the Solicitor General put this of it.

Now, I’d like to call the Court’s attention also to another question as for Mr. Justice Brennan yesterday.

On page 51 of the record, this testimony appears in here a question.

“What was the reason, please sir, that you told Mrs.Jones that you did not need a search warrant or didn’t have one?”

Answer “Because I thought we had sufficient evidence to go in the premises without a search warrant.”

Question “You didn’t exhibit this search warrant that you had to her?”

Answer “I did not.

That was a daytime search warrant.”

Wesley R. Asinof:

And on page 54 of the record, the trial judge found this as a matter of fact, as to the entry.

Mrs. Jones asked Officer Woody Langford if he had a search warrant and Langford replied that he did not need one and the officers then searched the premises without a search warrant, with reference to question asked by Mr. Justice Frankfurter.

On the same page, the trial judge found this as a matter of fact with reference to the — he says the house had only two or three doors and they were five officers watching the residence and would have been possible for the officers to watch each of the doors and still send another officer for a nighttime search warrant had the officers deemed this to be necessary.

At the bottom of the page, in the trial judge’s findings of fact, he says, “The Court finds that probable cause for the search existed at the time the search was made.

There was no finding that there was any question of going in there for the purpose of making an arrest,” as contended by the Government in this Court.

Now, this, if the Court please, we say that this case is on all fours with the Kaplan case.

It was decided by Judge Learned Hand in the Second Circuit Court of Appeals, I believe.

On page — page 5 of our reply brief.

In that case, the Second Circuit Court of Appeals with reference to a warrant of arrest and this case was — certiorari was denied by this Court.

The Court said this, “The statute certainly requires a warrant when there is time to obtain one that this concession is limited to occasions when it is not safe to wait,” and they were speaking of arrest warrants in that case.

Now, we respectfully submit that in this case, the record shows that there was no question, but what they did have was an ample amount of time to have obtained some warrant of some kind, either to search or to arrest.

Was there a warrant of arrest in Rabinowitz, if you got them?

Wesley R. Asinof:

There was a warrant for arrest in Rabinowitz and it was based upon that warrant.

Now, we respect —

Felix Frankfurter:

Does it mean the implication of what we’ve just said, if isn’t it, that although they could have searched and seized more particularly to the extent that it was done in this case as an incident, in the Government’s point of view, before there was an arrest, assume that.

Wesley R. Asinof:

Yes, sir.

Felix Frankfurter:

That opportunity or that right is denied or simply, it doesn’t come into play, is there a matter of fact, before the necessity for making the arrest, they could have got a search warrant to search and seize what they did into that search?

Wesley R. Asinof:

That’s correct.

Felix Frankfurter:

Is that what you’re saying?

Wesley R. Asinof:

That’s correct.