Jones v. United States – Oral Argument – January 21, 1960 (Part 2)

Media for Jones v. United States

Audio Transcription for Oral Argument – January 21, 1960 (Part 1) in Jones v. United States

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Louis Henkin:

The District Court didn’t consider this case in terms of the various standards which we quoted from some of the other cases.

They didn’t discuss whether he was an occupant or whether he was a licensee or what he had dominion.

They called him a guest and that seemed to settle that.

Of the guest rule —

Potter Stewart:

That was on the original motion?

Louis Henkin:

On the original motion, sir.

The guest rule of — seems to have been invoked more often in the District Court.

It is not unanimously involved.

In any event, we suggest that it’s a rule which really deserves some examination.

There are guests and guests.

If someone lends me his house for a year and I’m living there as a guest, I’m sure no one would challenge for that — my status as regard to the Fourth Amendment and under — in that house, is quite different from perhaps a man in somebody else’s house of 20 other people there and he’s there as a guest, too.

Potter Stewart:

You have the man who came to dinner.

Louis Henkin:

The man came to dinner — what is clear is that no — no guest case cited by the district judge below, no case cited by the Government deals with the kind of guest you had in this case.

A fellow who is in the apartment without the owner there, so that he’s a guest of some conceptual sense, of course, but he’s not there by sufferance of someone else who has the right and the power to assert his responsibility for the apartment.

In this case, and this is the only case, we submit, this — in this case, he was in charge of the apartment whether you call him guest or not.

If Arthur Evans had been there, that might be a different question, that’s not the course.

But none of the cases cited involved a case, where the man was there not in the presence of the owner and was in charge of the apartment.

The guest rule has been suggested in this Court before, it has never been decided.

In the McDonald case, so the Court will recall, the majority said even if we assume that a guest in the apartment of another — in the presence of another in that case, has no standing under the Fourth Amendment, we will still exclude the evidence because it had to be excluded from McDonald, therefore, we would exclude it for Washington.

On the notion that if it had been returned to McDonald, as McDonald has originally requested, it wouldn’t be available for Washington.

Three of the justices in that Court suggested that there’s no reason why a guest should not enjoy the privacy of — the right to privacy under the rooftree of a friend anymore than anybody else.

What basically we have here is a man who borrows an apartment.

And a man who borrows an apartment should have the same rights of privacy in that apartment as anyone else, as anybody who owns the apartment.

Interestingly enough, a man who borrows a car is not his, just borrows it for an afternoon, no one has ever denied his right to object to the seizure of that car.

In fact, in the Henry case decided just a few weeks ago here, the Court will recall that Henry objected to the seizure of materials in the automobile because his arrest went unlawful.

Felix Frankfurter:

I suppose if you have occasion had given a car on a trailer, which I take it’s one that is wrong personally, I’d suppose anybody who do this (Inaudible)

Louis Henkin:

Perhaps, sir.

In the Henry case, interestingly enough, no one claimed — no one claimed that Henry didn’t have the right to object to the seizure of the materials on the car simply because it wasn’t his car.

In fact, he was not only a guest in the car.

He was a guest of a guest.

Louis Henkin:

The driver borrowed the car from someone else, as the record shows, and he was invited to ride in it and yet, no one suggested that in that case because the automobile was borrowed rather than owned or because the owner wasn’t there or because, for some reason or other, the relation to the automobile is only temporary that therefore he should have no standing and of course, the automobile would generally doesn’t have anyone near the kind of protection that — that the dwelling has.

There is one case before this Court, which we refer in our brief on page 29, the Kremen case.

The Court decided that per curiam.

It’s — it appears that in that case, the crime involved was harboring fugitives from justice.

Someone had hired a cabin under an assumed name and the other three persons were found in the cabin with them and they searched and — and seized lots of materials.

And the Government argued in that case and the lower court held none of the four had standing and yet, the Supreme Court just reversed per curiam without — just asserting the fact they clearly had standing in effect.

The — one can deal with these issues in terms of the niceties of property law.

But in the question really, what are the — what is the right of privacy a man has under the Fourth Amendment?

One of the District Court cases we cite, case from the District of Columbia Court of Appeals in the District of Columbia suggests that the question is whether it’s unreasonable, if it’s unreasonable to take these materials from this person, then that person should have a right to stand.

Now, it’s a circular test obviously and yet, it maybe a perfectly proper way of handling questions of — which are often merely questions of degree.

It seems to us quite clear that in the circumstances of this case, Jones had a right of privacy.

In this apartment, he had a right to keep out trespassers.

He had a right to keep out police without a warrant.

He should clearly have standing to object to the unlawfulness of the warrant.

But the case really is considerably stronger than that.

What happened after the motion was denied was that it was repeated at the beginning at the trial and Judge Holtzoff said, “I am bound by what the previous judge had done on motion.”

Charles E. Whittaker:

May I ask you very frankly, not merely the renewal of the pleading filed in the defendant motion?

Louis Henkin:

Yes, sir.

Charles E. Whittaker:

Thank you.

Louis Henkin:

And the Court said, “I am bound by that motion and didn’t consider it.”

Well, as we shall saw — as we shall see — we question whether that decision was correct, but we don’t think it’s important enough to stop on it.

After the Government’s evidence was in, counsel asked again, and it appears in — in the record on page 56, counsel asked again to note that we object to the inclusion of this Government’s testimony.

And it was noted for the record and the Court didn’t — didn’t affirm — didn’t grant the motion.

Well, by this time, lots — more evidence was before the Court.

By this time, the Government had introduced its whole case.

It introduced evidence which said that he had been living in this apartment.

It introduced evidence which said that he was in possession of narcotics.

And not only introduced this evidence, but it must have proved it beyond a reasonable doubt, because these were the evidence in which this man was later convicted of possession, so that at least as to his relation to the narcotic seized, the evidence was “beyond a reasonable doubt that these were his”.

Well, the Government — the Government doesn’t deny any of this, but it seems to take the position that it came too late that once a motion is denied at the beginning of the trial, now, then, the Court needn’t to stop in the course of the trial to reexamine this question.

Charles E. Whittaker:

(Inaudible)

Louis Henkin:

Yes, sir.

Yes.

We believe the Government is mistaken in its position as to what the trial judge should have done at this time and the answer seems clear on the basis of the Gouled case, which is cited in our brief on page 40 and 41.

And in fact, the entire portion of the Gouled case which is relevant to this point is quoted in that — in that brief at that point.

What happened — this was — came up on a certified question.

And the Court, in effect, said if there’d been a motion to deny, which was to suppress earlier, which had been denied, but it appeared in the course of the trial that the evidence was unconstitutionally seized should the trial court have stopped and examined it.

And the Court said quite clearly, “Sure, we don’t want the trials interrupted, but that’s only as — rule of procedure and should not stand on the way of constitutional right.”

The — the duty of the trial judge at that moment was as soon as it appeared probable, it don’t have to appear certain, so it’s appeared probable that it had been an unconstitutional seizure just to stop and see whether there had been an unconstitutional seizure.

That was before the rule.

Louis Henkin:

Yes, sir.

And no one had suggested that the rules had been changed on any of these points, sir.

In fact, the — the question which the District Court had to decide at this moment, we believe, is one that could have take — it didn’t have to go to the jury.

It didn’t have to do anymore than spend 15 minutes looking at the affidavit and deciding whether to do what he had never done before which is look at that affidavit and decide, is it adequate for the warrant.

The Court didn’t do that and the Gouled case and the Amos case decided the same day, seemed fairly clear to show that the Court — if it — if it exercised any discretion, which doesn’t seem to be clear, abused him.

The Government cites one case in opposition and that is Segurola, cited in the government brief on page 33.

That’s a very different case.

In Segurola, there was no motion to suppress the evidence before.

No objection before the trial at all.

And at the trial, the objection is made to the — to the admission of the liquor had nothing to do with — with search and seizure or — or unlawful arrest.

Afterwards, the man said — the counsel said, “Well, in any event, we believe it should be suppressed.”

The Court said, “It’s quite clearly, this motion is an afterthought and you come too late.”

That didn’t happen in our case.

Jones made his motion.

And the facts in support of that motion and they didn’t appear at the time appeared during the course of the trial under Gouled names and we believe that the trial judge should have stopped and looked at the affidavit.

The Government says in effect, “Yes, but it’s different.

In Gouled, what appeared in the course of the trial was the unconstitutionality of the seizure.

Here, what appears in the course of the trial is the standing to raise the unconstitutionality.”

We don’t see why that should make any difference.

But in any event, the reason it didn’t appear in the course of the trial that was unconstitutional is because we had never been allowed to prove that the warrant was bad.

If we assume, as we may assume for this probable case that the warrant was bad, there must be standing, appears all the elements necessary to prove unconstitutionality of either case.

Louis Henkin:

There’s still one further and perhaps the crucial issue in cases of this kind is the one to which Mr. Justice Harlan was referring before the lunch and recess.

These crimes are what we might call possession crimes.

All the Government has to prove is possession.

The Government admits that possession, and it doesn’t claim it’s a different kind of possession, Government admits that possession of the narcotics is enough to constitute standing, so that the whole government case is based on the assumption that the Government — that the defendant has that relation to these narcotics which justifies him in objecting to their introduction if they were unlawfully seized.

Again, there was — by this time, not only the warrant and the affidavit of the complaint and the indictment and all the evidence, all charged possession under — under the Jeffers case to be quite clear that possession is all you have to prove.

But they say it’s not enough because Jones must claim possession.

And what is cited as an old opinion of Judge Learned Hand, for whom I have the highest respect.

In Connolly v. Medalie in which he said in effect the motion to suppress is a pleading and the petitioner has to assert the facts which justify his standing under it.

He said in effect, “The right to object is — to evidence is remedial.

It’s — it only amount with the constitutional — with the constitutional privilege which is being infringed has a right to object and therefore, he must show this constitutional privilege.”

He also went out to say that of course, a man may hesitate to admit possession of contraband but that’s — that’s tough.

That’s one of the difficult things in life.

If he wants — if he wants the benefits of possession, then he ought to have bare the burden of possession.

Well, with all due respect, there are number of things to be said about Judge Hand’s opinion, but even if it — even assuming it — we could not distinguish it which we believe we can, we believe it’s erroneous.

Do you — do you claim that the standing rule ought to be done away with entirely in the sense that if a man is on trial and evidence is introduced against him, is that in and of itself enough to give him standing to make the motion?

Louis Henkin:

We believe — we’re not claiming that, sir.

That is one of the points we argue in our brief.

But we’ve — at this point, we’re arguing —

You don’t have to go that —

Louis Henkin:

We don’t have to go that far.

— far in this case.(Voice Overlap) —

Louis Henkin:

We don’t have to go that far.

And we’re now concern with the fact that this was a — this was a case where possession i.e. the same fact which constitutes standing is the crux of the crime is what the Government claims from the beginning and is what the Government proved.

Well, they insist however that’s not enough.

Jones has to file that motion, and Jones has to say, “I possess it.”

One might ask perhaps, “Well, why doesn’t he?”

And of course, Mr. Justice Harlan gave the answer before because he find himself on a whipsaw.

It’s interesting to read the records.

If you read on the motion to suppress where the objection to the motion was lack of standing that Jones is minimizing his relation to the apartment, although it’s in his interest on that motion to maximize it, the Government is trying to prove he had more relation to that apartment although on the motion, it was in its interest to minimize it.

And the reason — the reason is, as the Government said quite clearly, “The cases show that if he makes this motion, either the motion or the affidavit can be introduced against him.”

Louis Henkin:

What does this mean?

It means that in order to — that in these possession cases, in these possession cases, in order to assert as rights under the Fourth Amendment, a man must — must incriminate himself.

He must give up his rights under the Fifth.

And it isn’t really only, if this is accurate, it isn’t really only a choice between the two amendments.

They tend to nullify each other because the man is in a dilemma.

And the dilemma is Judge Hand’s word.

If he claims possession, then they will introduce us admission and that’s it.

If he doesn’t claim possession, then they introduce the evidence and that’s it.

So, he — the two things nullify each other.

Charles E. Whittaker:

I wonder if he has to make any statement at all about the matter of ownership or is he not entitled in such case to make this claim to sustain this motion unless he affirms that we disclaim it.

Louis Henkin:

We — we claim that, sir.

We claim that he doesn’t have to do anything in these possession cases because — because the element of possession is supplied for him by the Government.

We also submit, Mr. Justice Whittaker, that even if he disclaims it in the first instance, it shouldn’t matter if in fact the Government has — the Government shows possession.

That the — the result of all this is certain that the Government succeeds in these cases in convicting a man on unlawfully seized evidence.

This is the result of these cases because if the man for any reason and — and these cases, the reasons are fair and confusion and the fact that the cases are not clear and the map for any reason refrains from objecting to the evidence although he’s — this isn’t case where he’s waiving his rights.

This isn’t the case where he — where there’s any doubt about his possession.

The Government insisted his possession.

But in — in all these cases, the result of this is that this man is convicted on unlawfully seized evidence.

Not all — not all the — the cases below have followed Judge Hand.

We cite in our brief the Dean case which says just the other way.

It says the — it’s the Government who has to prove possession, even if he denied that in the first instance.

When the Government later claims possession, they shouldn’t be in a position to deny it.

In the Williams case, also cited in our brief, in the District of Columbia where the man had — again, earlier this claimed possession, the Court said, “When the Government later brings in evidence, it shows that it — he did have possession, that order give him standing.”

The point is that a man should not be able to be convicted on evidence unlawfully seized.

The same point has been made by the Court of Appeals for Illinois — the Supreme Court of Illinois in the Grau case where they say, “At least to regard to a dwelling,” and that’s all that we have here.

We don’t have to decide what we would do in another case.

“At least to regard to a dwelling the — the person should not be forced to incriminate himself in order to assert his rights under the Fourth Amendment.”

The Government says in its brief that the Supreme Court has never held that the — that he makes this motion, it could be used against him.

That is true.

The Supreme Court has never held it.

Louis Henkin:

Some lower courts have held it, as we say in our brief.

We — we believe that those lower courts maybe erroneous but the result has been that counsel after counsel and defendant after defendant has been afraid to assert his rights under the Fourth Amendment.

Under your view, I take it, if this man had never — not been in the premises at the time, it would have been sufficient form to simply go in, in view of the nature of this charge, and said this evidence had been illegally seized period, and that would be enough.

Louis Henkin:

That’s right, sir.

And — and, Mr. Justice Harlan, if I may, this is not — this is sometimes referred to as who shall have the dilemma, whether the individual shall have the dilemma or the Government shall have the dilemma.

If it came to a choice of that, we suggest that it should be the Government which has the dilemma, but that — we don’t really think that that’s choice because the — if we exclude evidence where the Government claims that he had possession and in fact, the man didn’t have possession, so that the exclusion was erroneous, it doesn’t do him, the Government, any harm because he hadn’t committed the crime anyhow, the crime as possession.

Whereas in his case, in his case, if you force him to make this choice, the result, I repeat, the result is to convict this man an unlawfully seized evidence.

In the Kremen case, which I referred to a little while ago, the government brief in this Court objected that nobody had claimed possession or ownership of any of the material seized, it’s cited in our brief, the reference is on page 22 of the government brief in the Kremen case and it’s cited in our brief.

The Supreme Court just didn’t see to pay attention to it.

Felix Frankfurter:

What does that mean?

What simple interest do you draw from paying no attention to it?

Louis Henkin:

That — the Court paid no attention to the argument but held that the — that the people in question had standing and therefore, it seems to us, and Mr. Justice Frankfurter fared to assume that the Court held that this gentlemen had standing although they had not claimed it.

Felix Frankfurter:

(Voice Overlap) so obvious that no reference has to be made for the question.

Louis Henkin:

So, it seems so, sir.

Felix Frankfurter:

First would you suggest to applicable process — if you need (Inaudible) to process in this Court.

Louis Henkin:

I hope so, sir.

Felix Frankfurter:

You do?

Louis Henkin:

The — there’s was one other case to which we refer — which I’d like to mention and that is notice that in the Kremen case and in the Agnello case, which we cite in our brief, it wasn’t even all these possessory crimes.

It was even — it was another crime.

The Court simply said that fellow — if the fellow denies it and you proved it for him, that’s all right, you proved his standing.

Potter Stewart:

Your argument here is to find that he’s in possessory crime (Voice Overlap) —

Louis Henkin:

That’s right, sir.

Potter Stewart:

— this — this aspect, isn’t it?

Louis Henkin:

That’s right.

There is a — the case of White and Texas is an interesting one.

It was a case of a — in 310 U.S., it was a case of a coerced confession in a state court, and the State challenged the right of the defendant to object to the coerced confession because he denied he ever signed it.

And they said, “Well, if you didn’t sign it, then it’s not yours, what your — what’s your past?”

The Supreme Court unanimously threw that argument out.

Felix Frankfurter:

All of this shall (Inaudible) present itself, only.

If one accepts the refinement (Inaudible) refinement about having the right (Inaudible)

Louis Henkin:

Yes, sir.

Felix Frankfurter:

(Inaudible) to read some — some (Inaudible) what relations of the premises were?

Louis Henkin:

Well, since either relations of the premises, sir, or relation to the materials were enough, we wouldn’t have to do that.

But we have been arguing this case at — to this point on the assumption that the rule which the federal — lower federal court developed that a man must have standing to challenge this is sound.

Having said what we’ve said maybe we have no standing to object to the standing rule because we have standing.

Nevertheless, as our brief argues, we aren’t disposed unless it were necessary to argue that the Supreme Court should throw out what all the lower federal courts have held with the virtue of the unanimity.

But the Court can’t decide this question against Jones unless without at the same time finding that the standing rule is necessary.

If you find we have standing, that’s fine.

But if you should find we have no standing, then the Court must face whether standing is necessary.

And on this — as our brief argues, the standing notion is based on the — as based on the idea that the whole purpose of the exclusionary rule is remedial, that is to make it up to the fellow whose rights had been deprived.

In fact, the Government admits that “a — a major purpose,” I’m quoting, “a major purpose of this exclusionary rule is deterrence”.

Obviously, it will deter more if you also exclude not only in the case where a man has standing but also in the case where a man hasn’t standing.

The time when — when this rule of exclusion was what Mr. Wigmore called a terrible exception is long gone.

I suggest then — and since the time when this rule is developed, another doctrine of this Court, the doctrine of McNabb and the cases which followed it, both notions of deterrence and discipline of the police and perhaps the notion that (Inaudible) which is we don’t want our court soiled with dirty evidence.

That the evidence is dirty no matter whose rights were violated.

And if it should be necessary to reach that question, there is much to be said for Mr. Justice Traynor’s opinion of the Court of Appeal — for the Supreme Court of California in which he tries — he — he attempts to show that the whole motion of standing is based on a misinterpretation of the cases of this Court.

The —

Felix Frankfurter:

Can I ask you this question?

Louis Henkin:

Yes, sir.

Felix Frankfurter:

The body of lower court opinion, all doctorates and (Inaudible) satisfying the standing requirements?

Louis Henkin:

Yes, sir.

Felix Frankfurter:

There are good many of these cases, aren’t they?

Louis Henkin:

Yes, sir.

Felix Frankfurter:

Of the cases that discussed what — what satisfies the requirement of what you call these possessory cases, is there any classification to be — to be made of cases that you’ll examine as to what is the minimum, what body of opinion in this body of opinion means satisfactory at a minute of one — one end of a spectrum as against the other?

Louis Henkin:

Yes, sir.

Felix Frankfurter:

In other words, what support is there to the lower court opinion that they think that your view on this record satisfies the relationship with being your view in the premises and supported by lower court opinion?

Louis Henkin:

In regard to Jones and the premises, sir, we cite the opinions of lower courts in our brief in which they speak of the standards.

One court says everyone but a trespasser.

This is the standard they suggest.

Well, Jones clearly wasn’t a trespasser.

Louis Henkin:

Some of them speak of occupant.

Some speak of dominion.

We suggest that Jones satisfies — satisfies those.

This is all in relation to the premises which are an independent ground from across the relationship which we try to show to — which we say the Government has shown for his relationship to the materials.

In the time that it left —

Felix Frankfurter:

So that — so that’s — assume that the Court adopts your most extreme position on the application of the standing rule, what body of opinion of lower court that has to be overruled by such a decision of this Court?

Louis Henkin:

Our most extreme position, Your Honor, is that no standing is necessary.

Felix Frankfurter:

Yes.

Louis Henkin:

If you went that far, you’ve had to overrule them all.

Felix Frankfurter:

Certainly.

Louis Henkin:

On the possession case — on the possession cases, the — the large majority makes no distinction between possession cases and non-possession crimes.

But the number of cases which consider this question is — is — maybe there — I think almost all the cases which really consider this problem of the possession crime and we cite the — the Dean case and the Williams case seems to be in that category.

Commonly, a modality the — the Hand opinion in 1932 considers it but not very fully.

It doesn’t deal with it in terms of Fourth and Fifth Amendment.

It just says man is in dilemma.

So, in fact, Mr. Justice Frankfurter, one can decide this case on the very narrowest ground, and I’m not sure which is narrower, either of this that this is a possession crime and the Government clearly proved our standing or on this relation to the premises, his fellow was in charged of the apartment and he’s an occupant and to do that, it’d be very little overruling on — on that last point at all.

Charles E. Whittaker:

Would there be any on the possession point alone?

Louis Henkin:

Any cases which should have to be overruled?

Yes, sir.

They didn’t consider this very carefully but the Court of Appeals in this case and the Government’s brief in effect says courts have never distinguished.

I’m not sure they’ve been asked to distinguish but they never distinguished between the possession crimes and the others.

If the petitioner has a standing, then the Government and we are agreed that this Court ought to consider the validity of the warrant.

And obviously, if he has standing invalid and the warrant is invalid that disposes of the case.

There’s a third issue in the case which I won’t have time to reach but I would like to take a moment on the probable cause.

What do we —

William O. Douglas:

Well, but the point you won’t be able to reach is the point in which the Court will overrule, is that right?

Louis Henkin:

Yes, it did.

It raised in the court below for the first time, they’ll not raise in the lower court.

The Court of Appeals — this is the question of whether the warrant is properly executed under Section 3109.

One doesn’t have to get to that question if you find for Jones on standing plus probable cause.

Louis Henkin:

And unless the Court wants to ask some questions about that last point, we are prepared to stand on our brief in relation to that point.

But in regard to probable cause, we think, and I should not like to use these words carelessly, we think that this is the most shocking and flimsiest case.

The flimsiest case of any reported case we have found of the issuance of a warrant for a search of a dwelling.

In fact, I don’t know if any flimsier one even for the search of an automobile and this Court has repeatedly said the defense.

What do we have here?

We have a tip from an informer plus the affidavit says, the affidavit is contained on page 3 of the record, if the Court will, “Received information that Cecil Jones and Earline Richardson were involved in the illicit narcotic traffic etcetera and kept a ready supply.

The same information regarding narcotics had been given to the undersigned and other officers from other sources of information.

If I may stop for a moment just on the nature of this tip, the informer is not named.

There is no affidavit from the informer either given to the police or given to the Commissioner.

William O. Douglas:

When you say it’s not named, you mean his — the absence of the name but is there an indication as to — that he was a police officer or (Voice Overlap) —

Louis Henkin:

No indication that he’s a police officer, sir.

No, no — neither name nor identity in — in terms which are meaningful except, and the words are very important to note because it seems that the man who drafted this seem to weigh them very carefully.

He said all that about this man — this first source of information has given information to the undersigned on previous occasion, on previous occasion.

To us, that sounds like a nice way of trying to say one previous occasion, at least, it doesn’t say more than one previous occasion and which was correct, so we know that there wasn’t a tip from this informer once before that it was correct.

We do not know whether there were any other tips.

We do not know how many tips he may have given which were incurred.

And this — this is what is given to the Commissioner.

This is what is given to the Commissioner and it supposed to produce not cause, not some cause, not the, as this Court said in Henry case, not reasons to suspect the probable cause.

This is what is given to the Commissioner under an affidavit when the constitution requires oath and affirmation but the old test should be meaningful.

You — if you want to say something under oath, it — the oath is the — is the safe guard.

The man has to be able to testify to something under oath so that if he’s lying about it would mean something.

Charles E. Whittaker:

But doesn’t —

Louis Henkin:

What —

Charles E. Whittaker:

— it have to be such as would be competent as testimony?

Louis Henkin:

We’re not claiming that, sir.

This Court said in the Brinegar case that it doesn’t.

Of course, that was not a dwelling case, and the Brinegar case clearly said that dwelling cases are different, but we’re not claiming that all hearsay as such is — is inadequate.

We’re saying — we are saying that there is no case where hearsay alone from an unidentified informer without anything about him with — the — the Government didn’t even do what it does in all these cases.

It calls the man reliable, but the Government doesn’t call him unreliable.

The magistrate or the Commissioner here has no assumption to assume he’s reliable.

Louis Henkin:

They didn’t even give him that label of reliability which maybe a judgment to which — to which either they find, he could testify or maybe the Court — the Commissioner might have cross-examined.

Charles E. Whittaker:

It is so, is it not, on the last paragraph of Officer — by Jones’ affidavit on record 3, the statement that the cause decision (Inaudible) in the open paragraph is giving information that we understand our pleading of the case and which was correct?

Louis Henkin:

Previous occasion, sir, is what it says —

Charles E. Whittaker:

(Inaudible)

Louis Henkin:

And — and we suggest that if — if the police commissioner — the police officer himself may not fail if that’s necessarily, that that necessarily makes him a reliable informant.

In any event, sir, even if we were to assume that this man was a reliable informant, there is no case that we found where all you have is a tip from a reliable informant.

Charles E. Whittaker:

You have anymore jury to think on the — the affidavit you’re citing that the person or a known narcotics users through this (Inaudible)

Louis Henkin:

Your Honor, the police says he — the — the affidavit says he was familiar to police, as we say in our brief, so as the Commissioner probably.

What does familiar to police mean?

Is it if the suggestion is that he was familiar to police because he had a previous record which seems to be what we find — was trying to give, the — the answer is that he had no previous record relating to narcotics.

Charles E. Whittaker:

Not the federal warrant?

Louis Henkin:

Yes, sir.

Charles E. Whittaker:

Both we aforementioned, persons are familiar to the undersigned.

Louis Henkin:

That’s right, sir, familiar as what?

It doesn’t say — it doesn’t — it — it seems to me, sir, that the fellow was trying to suggest he’s a shady character.

Well, he can’t — he can’t suggest that and it’s meaningless.

Charles E. Whittaker:

He followed to then, to the next sentence both has committed to the use of narcotics — narcotic drugs and explained either marked as evidence are the same?

Louis Henkin:

Yes, sir.

The only other — the only other question — the only other point mentioned is that these persons were addicts.

All about it is we say two things.

The notion that an addict is probably a pusher, if I may use it, is, I think, not one about which one would — could make a claim of probability.

There were — people in this room, all of them were set to be addicts.

Only of them were charged with this crime, so it would guess that the law of probability seemed to work 2-to-1 against the notion that — in this context that an addict is a pusher.

But in addition to this, it isn’t even very clear, Mr. Justice Whittaker, that that this statement was made as of his own knowledge.

It was ambiguous here, sir.

But if you look at the record, it shows that at least as to Earline Richardson, at least as to Earline Richardson, his statement that she was a narcotics addict came to him from others.

This is referred to in the — in the record on page 46, sir.

Charles E. Whittaker:

What — this — I am correct in believing that this motion to suppress attack this affidavit and warrant for defects on its face?

Louis Henkin:

Yes, sir.

Charles E. Whittaker:

I’m correct in that?

Louis Henkin:

Yes, sir.

On its face, we believe, on its face, this warrant doesn’t show what is necessary.

There is one final point, if I may, Mr. Whittaker, on this question.

This is not a warrant for the arrest of Mr. Jones.

Charles E. Whittaker:

No.

Louis Henkin:

This is a warrant for the search of a property.

As to this apartment which Jones didn’t own, as we’ve said, the notion that Jones as an addict is utterly irrelevant to whether there are drugs in this apartment that Jones that — the notion that Jones is but familiar is utterly irrelevant to whether there are drugs in this apartment.

The only thing you have as to the apartment is the tip, plain unvarnished tip.

Felix Frankfurter:

May I — may I ask you whether you attached no significance to the first — what is stated on the first paragraph, the source of information goes on to relate.

I suppose the source of information is — is the same as the source of information in the last paragraph, is that the same thing?

Louis Henkin:

Yes, sir.

Felix Frankfurter:

The source of information was on to relate that on many occasions, the source of information has gone to said apartment and purchased on not exactly, we don’t mention the first person.

The narcotics (Inaudible) makes complaint so that you have multiplicity of experience is not a single one.

Louis Henkin:

You have a single tip claiming multiplicity of experience.

Felix Frankfurter:

Yes.

Louis Henkin:

If the tip sir, if the tip is insufficient, because at some — a tip maybe insufficient for a number of reasons, one, maybe just lack of reliability.

And if it lacked of reliability and the fact that someone maybe lying, well, if he can lie about the fact that there’s narcotics there, it’s just as easy to lie that he — that there were narcotics there 20 times.

Felix Frankfurter:

Do you suggest that he has lied to give him a name?

Louis Henkin:

Not if I could cross-examine him, if I had an affidavit.

He didn’t say this under oath, sir.

Hugo L. Black:

But you have known —

Felix Frankfurter:

But you don’t have an affidavit when — when search or application for a search warrant, affidavit on which a search warrant is sought, if you knew opportunity for cross-examination assume we — the search warrant is otherwise satisfies the Constitution.

Louis Henkin:

Yes, sir, the Commissioner can cross-examine the police officer.

In fact that —

Felix Frankfurter:

But — but the Commissioner can ask these questions on this warrant on the basis of this warrant.

Louis Henkin:

Well, he didn’t as far as we —

Felix Frankfurter:

But that’s a different story.

Louis Henkin:

Well —

Felix Frankfurter:

The question is whether he can give him enough to the Commissioner on the basis of which he, on his oath, can issue a warrant.

And if he can cross-examine if the name is given, he can cross-examine, a fortiori, because no name is given.

Louis Henkin:

Yes, sir.

We’re not challenging the inadequacy of the affidavit.

We’re challenge — challenging the warrant.

If on this affidavit the Commissioner had cross-examined him and got some additional information, then we wouldn’t care about.

Then that would supply whatever defects there are in this thing.

Felix Frankfurter:

No, but the Commissioner may have known the liability of the affiant.

Louis Henkin:

But — yes, sir, the —

Felix Frankfurter:

They think, must that be set forth in the warrant?

Louis Henkin:

No —

Felix Frankfurter:

The Commissioner is certainly — and where was it, he watched him —

Louis Henkin:

Yes, sir.

Felix Frankfurter:

The Commissioner probably had experience to this particular advice, hadn’t before again and again and again.

Must be set forth in the warrant whereas I am confident in the reliability or in the — in the — in the preduality or inpreduality of comments he’s owning.

I’m satisfied that his interest — that he’s with reason — within reason.

Louis Henkin:

No, sir.

Felix Frankfurter:

(Inaudible)

Louis Henkin:

Yes, I don’t know.

We don’t need that, sir, but —

Felix Frankfurter:

Assuming.

Louis Henkin:

— the Commissioner can say I believe from the Police Commissioner Didone that he got a tip, but does that enough to make a probable cause that the search was illegal?

Felix Frankfurter:

That must be — if the — if the Commissioner is satisfied, you say on the basis of this would be cross-examining Jones, he could have satisfied his actions.

Louis Henkin:

He may have, sir, he may have found out who is your informant and have you ask them these following questions, he may have, sir.

Felix Frankfurter:

Now, what I’m putting to you is that a past experience, he may have known that Didone was a very concerned, conservative sceptical on cross-examining enforcement officer.

And that when he says, “I had a tip from somebody who told me beyond many occasions,” they just defined that.

He didn’t have to go through this process of cross-examination.

Louis Henkin:

Well, it’s not — Didone — Didone said I’ve got a tip from X on that — that fellow said on many occasions.

That doesn’t go to Didone’s credibility.

We’re not questioning Didone’s credibility.

Felix Frankfurter:

Oh, no, no.

But it goes to the reliance of the Commissioner may make on Didone’s asking on an undisclosed informer.

Louis Henkin:

The purpose of the warrant, sir, this Court has repeatedly said is for the magistrate to be able to make that decision probable cause that there is a need to evade the privacy of a dwelling.

We don’t believe that he ought to be able to do that on an affidavit of a statement by a police officer who got it from some other person without anymore, without any — there are cases, sir, where — where on the same facts, the police normally don’t do this.

Felix Frankfurter:

Now, let me ask you this.

Suppose he’d given a name.

Suppose he’d given the informant’s name.

Louis Henkin:

That may still not be enough, sir.

Felix Frankfurter:

That may not be enough.

And the Commissioner then asks on that, you would say that was an — an illegal warrant?

Louis Henkin:

We think so, sir.

Charles E. Whittaker:

What do you say about this?

The informant who have been found at least active if not trustworthy before says to the agent, “I bought narcotics at this place and these people many times.

I was there last night and I bought narcotics from them.

You go there and you’ll find them under the pillow, on the dresser, or on the window ledge.”

Now, is that enough report of magistrate to justify the issuance of this warrant?

Louis Henkin:

We don’t think so, sir, unless as Mr. Justice Bradley says in the — in that case we cite on the note, unless — at least there were an affidavit from — this man didn’t say it’s under oath.

And if he — and if he’s going to make statements about the apartment not under oath, he can make them — he — he can fill it all that he tells he wants to.

If one is going to fabricate a story, well, he can fabricate it.

But if — if you please, Mr. Justice Whittaker, there’s another point in this thing.

It isn’t only the lack of reliability that we’re concerned with.

When you have just a tip, think of the dangers of mistake.

The man said apartment 36, maybe he said 63.

Maybe he said 35.

And on the basis of this alone, you go to a particular apartment and in this case the police go.

They don’t even identify themselves, as we show in our brief.

They go into this apartment, knock on the door and break in just on the basis that this man is not only reliable after his tip but perfectly accurate in the information he gave us.

If the police had done in this case what they do normally, sir, which is — there are cases all the time, there’s the Murphy case under the District of Columbia this past summer.

What they do all the time is to — to send somebody out there with marked money, get an agent as a purchaser.

There was no indication of urgency in this case, sir.

The fellow had said it’s been going on for a long time.

They will be there tomorrow and a day after.

Louis Henkin:

My time is up, thank you, sir.

Potter Stewart:

Before you sit down, I —

Louis Henkin:

Yes, sir.

Potter Stewart:

— I have a question to you.

You did not reach until the end of your argument for obvious reasons for organization, the — the basic question of the validity of this search and seizure.

If the Court should decide that the search and seizure was not invalid, then we would never reach your standing question at all, would it?

Louis Henkin:

Yes, sir, because we believe that the third issue which is whether this warrant is properly executed.

Potter Stewart:

Well, I’m including both the execution and the carrying out of the —

Louis Henkin:

Well —

Potter Stewart:

I mean the — both the — both the sufficiency of — of the affidavit to support the —

Louis Henkin:

Yes, sir, but —

Potter Stewart:

— the warrant and the carrying of a doubt.

Louis Henkin:

But our objection on the Section 3109 in our third — up — third part of our case applies even if the warrant is out.

If — in order to execute a valid warrant, you have to give warning, give notice of your presence before you break in.

And we submit that what the police did in this case did not give a notice required by the statute and that even if you take their version of it, that is the truth, that is the truth.

And in any event, there’s a — an obvious mistake by the Court of Appeals, which the Government admits and which the dissenting judge admits as to whether the facts were found in favor of the police on circumstances where it’s not entirely clear that the fact should be found in favor of the police because after all, the police know the rule and had an interest in saying they have complied with it.

No indication that Jones even knew about Section 3109.

He had no reason to falsify the execution.

No — no indication that his counsel even knew it because it wasn’t raised until we got to the Court of Appeals by a different counsel.

Potter Stewart:

And —

Louis Henkin:

So, in — in any event, sir, you would — even if you find that the warrant was valid and issue a probable cause, the Court would still have to consider whether it was properly executed in terms of Section 3109.

Potter Stewart:

And that was on that basis that Judge Bazelon dissented probably.

Louis Henkin:

Yes, sir.

Earl Warren:

Mr. Knapp, you may proceed.

James W. Knapp:

Mr. Chief Justice, may it please the Court.

At the outset, I understood counsel to remark that the Government had treated this case as though the prosecution admitted the warrant was unlawful.

If he did say that — in that — in my understanding of it, I’m sure that it is not correct.

That has never been the Government’s position.

The Government’s position in the trial court was simply this that the defendant did not have any standing to raise the question of the illegality of the warrant.

And that since the trial — motion’s trial judge held that no — there was no standing, he never reached the question as to whether or not the warrant was valid.

James W. Knapp:

Now, the Court of Appeals, we think, must have at least considered that the warrant was valid because it went on to discuss the execution point, and that’s the only basis, and I think you’ll find it in our brief at page 35 of our belief that perhaps the — the Court of Appeals did consider the validity of the warrant and consider it valid.

However, they made no mentioned of it and it isn’t explicit in that Court’s opinion.

I would like at the outset to try to get this case, the perspective of this case back to the way the case was tried at the trial level.

It seems to me that the position was consistent to the parties.

The Government — the defendant first filed his pro se motion to dismiss in which it was discussed here before in which if the defendant did not deny possession of the narcotics and if he did not deny having made such use of the premises as to charge him with notice and knowledge of what the premises contain, he certainly did his best to convey that.

And certainly, any prosecutor reading it would understand that this man is saying, “You haven’t proved possession and I’m not admitting it.”

Now, he comes forth with his motion to suppress filed by counsel, the counsel who was argued the Jeffers case here, a very able attorney.

And he made no mention of any standing.

His motion was based on the face of the warrant.

Find it was invalid because it had, in effect, been obtained through hearsay.

At the hearing on that motion, the Government raised the point with the motion’s judge, Judge Laws and said, “The defendant has not shown that he has standing here to raise the question as to the illegality of the search.”

At that point, without anything further, the defense lawyer didn’t say, “Well, I don’t have to prove standing” or “I can rely on the Government’s allegations in its indictment or in its — in its warrant or in its application for a warrant.”

He said, “I asked leave to a man to show that the defendant was present at the time on the premises at the time in question as an invitee or guest,” so he immediately came up.

His — his permission to a man was allowed.

He is the attorney endorsed on the motion.

And then he proceeded to put the defendant on the stand, and he was very particular that he did not want the defendant question by the Government as to innocence or guilt.

Then he went right to the question of what right he had to be in the premises.

And I believe that the defendant testified.

He said, “Whose place was it?

Did you rent it?

Did you pay rent or own it or anything?”

He said, “He was Evans, Arthur’s place.”

What page is this?

James W. Knapp:

This is page 24 of the record, Your Honor.

I’m sorry.

Felix Frankfurter:

To be able to follow your argument more easily, Mr. Knapp, would you tell me to what point are you addressing yourself now?

James W. Knapp:

I’m addressing —

Felix Frankfurter:

That he has no right to raise the question that he has standing or to disapprove that he has standing?

James W. Knapp:

I’m raising the — the — right now, as I understand that the defendant has abandoned the argument that — that he does not have to show stand or at least has abandoned it to a great extent.

But what I was trying to do is to set the — the factual —

Felix Frankfurter:

(Voice Overlap) —

James W. Knapp:

— picture rather than — as to the broad scope of the entire case, rather than as to any particular point, Your Honor.

Felix Frankfurter:

All right.

James W. Knapp:

I’m sorry.

But he said, “Was he a friend of yours?”

Did he give you the use of that apartment in any manner?”

“He did.”

“Did he give you a key?”

“He let me have a key.”

Now, that was the extent of his direct testimony in — on cross-examination.

Now, the Government is asking, “Is it not a fact, sir, that you had your clothing and your personal property in these premises on the date that you are arrested there?”

“I had a suit there.”

“One suit?”

“Yes, sir.”

“And your shirt?”

“A suit and a shirt.”

“And other clothing that you have there?”

“Shoes and stocking that I had on.

I didn’t have anything on.”

I understand this to mean certainly taking in the context of his testimony at the trial where he testified on page 60.

“Isn’t it a fact that you had your clothes in this apartment on August 21?”

This is on cross-examination.

Answer, “That I had to put on.”

I understand that what he meant is that he had a clothes he had their in the apartment was the clothes that he physically had on his body and that he had nothing else there.

Then on cross-examination, the Government went on and developed that he lived with his parents at 811 9th Street Northeast and that he read it from them and that was his home.

Now, that’s consistent with what he said in his motion to dismiss.

And this defendant at the trial when he came to testify on his own behalf didn’t change his testimony any.

It was still the same thing.

As a matter of fact, he was asked, “Now, isn’t a fact you tell the police officer that the apartment belonged to Mr. Evans who had gone to Philadelphia and he was allowing you to stay in his apartment?”

Answer, “He didn’t allow me to stay in the apartment, sir.”

James W. Knapp:

“He had a key?”

“Yes, sir.”

(Voice Overlap) —

James W. Knapp:

He also testified that he hadn’t slept there a night before.

Excuse me, Your Honor, I’m sorry.

On what page?

James W. Knapp:

I’m on page 60 and 61.

That he — that he had not spent there the night before, that he arrived around 4:30 or maybe 5 o’ clock.

And that he came there to get Earline Richardson.

“Where there — where,” in — at the bottom of the page, he asked, “Where all these other people already there?”

“Yes, sir, they were there.”

“You knew all these other people, didn’t you?”

“No, not personally, sir.”

I believe that somewhere else he testified over on the top of page 60 that they were in the apartment when he came there, that the only one he knew personally was a man named Cicero Martin.

So you had Earline Richardson and Cicero Martin and about three or four others that he didn’t even know that were in this apartment.

So — and he testified too on his own behalf, on record page 59 and over on page — that he did not possess the narcotic pill which was found.

He was very definite that he didn’t put the pill in the awning or in the bird’s nest, that the paraphernalia was not his, that he knew nothing about it.

So thus, you have here a defendant who has consistently taken the position that he did not possess the narcotics —

You’re consistent —

James W. Knapp:

— consistent —

— in taking the position that he did.

James W. Knapp:

Yes, Your Honor, the Government has consistently taken the position that he did possess.

And in fact, his counsel pointed out, we could not prevail here unless the jury did believe that question.

That’s correct.

Charles E. Whittaker:

And — and what — then sharpens right down to the plain point of the brief that that argument — that in his possession, for instance, or the (Inaudible) of possession which the Government has to prove (Inaudible) whether or it’s involved automatically that the defendant then has standing (Inaudible)

James W. Knapp:

Well, if Your Honor please, here it is.

If he possesses the property, if it is, he is and he claims it, then he has no right to get up and lie and say that I didn’t have possession of it.

So, if you’re giving that right, you’re giving in two strings to the bow.

He can sit here and say, “One thing, I — the — the search is illegal.”

And at the same time, he can turn around and say, “Well, I didn’t know there was anybody.”

Well, at least he got —

James W. Knapp:

But under —

— he’s got a third right under the Constitution —

James W. Knapp:

Yes, sir.

He’s —

— (Voice Overlap) to say nothing.

James W. Knapp:

That’s correct.

He has that right to say nothing.

And your — your formula would require him to say what would incriminate him.

James W. Knapp:

But if —

Charles E. Whittaker:

Well, would it — you don’t insist that he talk, do you?

James W. Knapp:

No.

Charles E. Whittaker:

I understand your last argument is that he — he make keep still but he can’t go hot and cold.

He can’t say, “I — it’s not mine and that it is mine.”

James W. Knapp:

If he had come here.

And at the end of the Government’s evidence had said, “I will stand on that evidence,” I think maybe then the Court might have had some problem —

Felix Frankfurter:

Is he —

James W. Knapp:

— to go there.

Felix Frankfurter:

— going hot and cold?

James W. Knapp:

Well, yes, sir.

I think he is.

Felix Frankfurter:

Is he going hot and cold?

Because you say, “I confess that he could,” that part of a relation, that he could.”

On that basis, I may insist on my legal right to say that you can’t break, you can’t get the evidence against me except by legal procedure, a proper search warrant or in the sequential right,” and — and you can arrest him without warrant.

In other words, he search the — he — he says, “I accept your premise.”

The Government can go hot and cold.

The Government can’t say “I’m — I’m in possession, but I’m not in possession as against the way of a constitutionality.”

And in addition to that he says “Go ahead and prove it.”

James W. Knapp:

But —

Felix Frankfurter:

Those are not inconsistencies.

James W. Knapp:

Your Honor, I think —

Felix Frankfurter:

Practically than having been (Inaudible)

James W. Knapp:

I think we’re into that circle that Judge —

Felix Frankfurter:

All — eventually all (Voice Overlap) —

James W. Knapp:

— Whittaker.

Felix Frankfurter:

gets into the circle, the circle you’re speaking of.

James W. Knapp:

But I don’t think that that is — pardon me, exactly true.

There are — if he came — if he comes to claim the right, he has to be a person entitled to claimant.

And it’s clear that this privilege of the Fourth Amendment is a privilege of this person.

This Court has said so in several cases.

Felix Frankfurter:

He isn’t — he isn’t — forgive me, he isn’t claiming the right, he is — he is challenging your right to say —

James W. Knapp:

Was —

Felix Frankfurter:

— something that if you’re right, you have no (Voice Overlap) —

James W. Knapp:

But we — we have no right to take it.

We have no right to use it if it is his or if he has some interest in it.

Felix Frankfurter:

That’s the —

James W. Knapp:

The Fifth —

Felix Frankfurter:

— and the whole litigation is based on that starting point.

James W. Knapp:

The — the Fourth Amendment, as we understand it and as all of the Courts of Appeal and as this Court has held and it’s stated in cases, is a personal right.

It’s a personal right of the individual.

It’s his right to privacy.

He hasn’t any right to complain about the invasion of someone else’s right to privacy.

And that’s —

Felix Frankfurter:

(Voice Overlap) another test.

James W. Knapp:

Well, it’s true.

We did get off from —

Felix Frankfurter:

In fact, you have charged him with possession and you have — at one point of view, you may rightly say, he can’t say, he can’t deny that or stand new and get — can be examine of it.

I suggest that all circular argument has to be broken somewhere.

Somebody has to do the breaking.

James W. Knapp:

Exactly, Your Honor, there’s — there’s no doubt about, and the point is where.

James W. Knapp:

And — and we say here that it’s — he is affirmatively challenging.

He is the one who is — he has what is known among the lawyers as the fighting motion.

It’s his duty to fight it.

It’s his duty to show that he comes within the scope of the constitutional protection and he has to do it.

Now, everywhere somewhere on — along the line in the lawsuit, somebody has to make a decision whether to use evidence, what to do.

It’s true that in this case maybe a possibility, the only way he could do it would to be make a motion, an affidavit himself saying that he did have possession.

Felix Frankfurter:

Can — can —

James W. Knapp:

But —

Felix Frankfurter:

— a defendant under the — I ought to know this but I don’t.

Can a defendant stands new as you could in common law, and if he stands new, that it seems to be that we have not used it.

James W. Knapp:

That is correct, Your Honor.

Felix Frankfurter:

But he may, as a matter of fact, say, “Your Honor, I have nothing to say unless the Government proven its case.”

Can you that today?

James W. Knapp:

Certainly.

Felix Frankfurter:

All right.

James W. Knapp:

Certainly yes, sir, if he stands new.

Felix Frankfurter:

I was contesting the fact that even in possession, he simply says, “Prove it beyond a reasonable doubt (Inaudible).”

James W. Knapp:

But the Government is going to prove that when it proves the case of course.

But he has to — I say he has to either adopt the Government’s proof which he did not do here in respect.

He specifically denied it.

He — he couldn’t do it.

He couldn’t do it ethically or honorably.

Felix Frankfurter:

I’m suggesting this and that in the colloquial language he could stand pass.

James W. Knapp:

Well, he — he could have — he could have stood pass but he didn’t seek to do it.

That was not the nature of his defense.

He elected to put in the general issue and to fight it out along that line that I didn’t own the narcotics.

Felix Frankfurter:

But you said he did.

James W. Knapp:

And we said he did.

Felix Frankfurter:

(Voice Overlap) the consequences of that position.

James W. Knapp:

Well, if — in — on his position, he could not claim the right to suppress it because he had no standing unless he could bring himself within the standing rule by this very — this testimony that he had been given the use of the premises and the key.

James W. Knapp:

Now, of course —

Felix Frankfurter:

Is it fair to say —

James W. Knapp:

— they were consistent with his defense.

Felix Frankfurter:

Is if fair to say that you want to stop him and he want to stop you?

James W. Knapp:

I — I don’t think it’s somewhat that because I don’t —

Felix Frankfurter:

He won’t stop you from denying that he is in possession because that’s your charge, and you want to stop him in — in denying your charge and thereby implying that isn’t true.

James W. Knapp:

No, sir, I don’t think —

Felix Frankfurter:

(Voice Overlap) specifically you’re trying to stop each other.

James W. Knapp:

I don’t think we were trying to stop him, but we were trying to make him elect what defense he had.

He had two defenses.

And to some extent, they would be inconsistent and he couldn’t make both of them honorably.

He couldn’t say, “These are my narcotics,” and then come onto trial and say they are.

I mean he’s lying somewhat.

(Voice Overlap) for the purposes of this motion only, I assert that these are my narcotics,” would that have done it?

James W. Knapp:

Well, pardon me, Your Honor.

As he pointed out, the Circuit Court cases, those that we have found, do say that any admission that he makes certainly through testimony could be used against him.

That point is not here.

It’s not in this case because it was not done and on his theory of defense, it was not necessary for him to do it and — and nothing that he did here was used against him.

And it seems to me that if that point has to be decided as to whether or not such a thing should be useable by the Government, it should come before this Court in a case where it has the specific factual situation and not in a generality point.

Well, perhaps —

James W. Knapp:

But —

— perhaps, to be qualified, that the way I suggest is it can be all right.

James W. Knapp:

It — it might well be.

I — I don’t want —

Would that satisfy your requirement of standing?

James W. Knapp:

I think he would have to come and — and show —

You have to go the whole end.

James W. Knapp:

I think so, Your Honor.

(Voice Overlap) —

James W. Knapp:

But let me point out here.

James W. Knapp:

It doesn’t necessarily mean, as far as standing, that he would have to get up there and make an admission.

I think in this case, he could have proved standing without bearing the government officers.

Charles E. Whittaker:

Mr. Knapp, (Voice Overlap) —

James W. Knapp:

He wouldn’t have to testify here, I don’t think.

Charles E. Whittaker:

Would you enlighten me on this?

I believe you agreed this question is here.

The — the petitioner sought to suppress this evidence a pot of gram that it had been illegally obtained and the warrant to stand on its face.

Judge Laws held that he didn’t have to do any of that because the man had no standing to raise it.

And some influence has brought to that issue by this man, this petitioner’s statement of the fact that these were not his goods.

Now, let me ask you.

Would a determination then of standing based on that issue of whether or not they were his goods have amounted in effect to a trial of the case on the merits?

James W. Knapp:

I don’t believe that it would have amounted to a trial on the merits.

Charles E. Whittaker:

Well, if in order —

James W. Knapp:

If —

Charles E. Whittaker:

— if in order to (Inaudible) that he didn’t have standing that had to be in determination if they were not his goods, then isn’t that the issue on the trial on the merits —

James W. Knapp:

Without a reason —

Charles E. Whittaker:

(Voice Overlap) that they were not his goods, he were in possession and this is a crime of possession.

James W. Knapp:

Yes, that’s true.

Charles E. Whittaker:

Well, how do you answer that?

James W. Knapp:

Well, all I can say is that this is a special motion that we’re deciding in preliminary in a — in a corollary matter.

And that the — it isn’t until all the — the case is finally tried before a jury that you — the jury decides the ultimate question here of whether the Government has proved it perhaps.

I don’t understand this, sir.

(Voice Overlap) —

Charles E. Whittaker:

But the Government says, “You’re not in position, Mr. Jones, to raise this question.

Here, you have a standing for you said the goods aren’t yours.”

James W. Knapp:

Yes.

Charles E. Whittaker:

Then if a determination is to be made of that issue on that point, then that’s to determine the merits of the case because if that point is proved and brought back, he couldn’t be guilty of — of — in the offense alleged in the indictment.

James W. Knapp:

If — if that would be true, Your Honor, we should take that that venue would have to have on the preliminary motion of this character even in effect have a complete trial of the issue.

Charles E. Whittaker:

The — the way (Inaudible) it, don’t you answer that.

James W. Knapp:

I would — I don’t believe so because I think it’s up to him to allege it.

James W. Knapp:

It’s up to him to show it, not the Government to show that he didn’t have it.

I think it’s up for him to show that he did, that he brings himself within the ambit of the constitutional protection.

I think it’s up to him to do it.

The case is so —

Charles E. Whittaker:

Would you think he’s got permission at least to focus up to the point on the merits in Mr. Henkin’s argument that in the possession, he may have this right of standing as a matter of law?

James W. Knapp:

I have looked and read the cases cited in our brief and — except for the — I believe it is the Dean case which is a District Court case which was cited as being against us.

The general proposition in the circuit courts is — does not make any distinction as to whether this is a possessory case or not.

And as a matter of fact, there are a number cases that I ran across, perhaps six or eight of them in which they find that the man had no standing but nevertheless find it from the evidence at the trial that he had possession and they convict him on it and so, it’s not unusual.

Charles E. Whittaker:

I realized that this has not made (Inaudible) of this distinction but we argue that they ought to, I mean urge us to do so.

Now, should we?

James W. Knapp:

No, sir, we should not make that distinction because as I say again it’s — the constitutional privilege is a personal right, a personal privilege and it’s up to the defendant to bring himself within it.

If he brings himself within it, then he has the standing required and the question goes on.

Now, if you’re going to allow then to — to go look at where this thing will finally lined up, let’s see where we’re going to get to eventually.

And eventually, we’ll come to a position and some will come here and say, “We don’t need any standing at all.”

And then, you’re going to have cases where the Government may — I can imagine one readily where the police learn of a shooting or a holdup and they hear that the gun is in a certain house and they get a warrant and they go there and so — we’ll say it’s A’s house.

They come in A and B there and there’s the gun.

And he says, “Yes, it’s my gun.

Sure it’s my gun.

But I love it to be, he’s just returned it.

Well, wait a minute.

I didn’t commit this crime.

I can prove that I was in another place.”

He is not in quite out but — and as a result, A is a witness.

It’s A’s home.

It’s A’s gun.

Would you let B claim that the search and seizure of A’s home for A’s gun was illegal?

Charles E. Whittaker:

Only if he were charged with unlawful possession of the gun.

James W. Knapp:

Well, would it make any difference if one of the charges whether he had unlawfully possessed a firearm because in the District of Columbia that it would be an unlawful possession of a firearm along with a — assault of charge.

Felix Frankfurter:

Mr. Knapp, may I ask you whether he could spoke to you (Inaudible) the petitioner here to argue one that he had standing to sue in view of his relation to the premise, was that in the case before us?

James W. Knapp:

Oh, yes —

Felix Frankfurter:

(Voice Overlap) —

James W. Knapp:

— very definitely the question of —

Felix Frankfurter:

You’re going to deal with that?

James W. Knapp:

Yes, and I would like to turn to that at this point if — if we’ve exhausted the other subject.

Question of whether or not on the fact shown by him that he had the right to use the apartment and the key to it, on that question as counsel points out the cases go different ways.

They — Second Circuit cases seem to make it depend upon whether the person who was the guest was dwelling in the premises.

They have the employees who are rightfully on the premises even though they might have some custody of the premises generally held it’s not having standing to object to — to searches of the premises.

It seems to me that the cases generally hold that he has to have some possessory or proprietary interest and these are the premises or the things seized in order to have standing, although it doesn’t — you — you’ll find cases where he certainly had less than — than that.

There are some cases such as the automobile case that he ment.

But it seems to me that the thing we’re after, the thing we have to look at is what are we trying to protect?

What right is the man’s right to privacy?

It’s his right to have a place, a home where he’s free from invasion by others.

And if so, it seems to me that it’s the use to which he puts that place.

And this man made no such use of these premises.

He didn’t live in them.

He didn’t sleep there except maybe a night as he testified.

He didn’t have his —

Felix Frankfurter:

He has to run up in — he has to run up the apartment.

James W. Knapp:

Well —

Felix Frankfurter:

I mean, if you — if you say to me, “I’ve got an apartment because I’m not using whenever you want (Inaudible) want to have a place or (Inaudible) whenever if you like it, do up there, go to my apartment.

And I suppose I’m there one afternoon, would I have standing as against any — although I call it inclusion by the police?

James W. Knapp:

I would not think that —

Felix Frankfurter:

Would not be —

James W. Knapp:

— you would have standing because it’s not a place that you treat as your own.

It’s your —

Felix Frankfurter:

(Voice Overlap) —

James W. Knapp:

— place where you’ll take your own private possession, a place where you put your things and have a right to feel that, “This is mine —

Felix Frankfurter:

Well, it (Voice Overlap) —

James W. Knapp:

— and no one else dare to come in here.”

Felix Frankfurter:

— in the case I put particularly my privacy.

Felix Frankfurter:

Many of some —

James W. Knapp:

Well —

Felix Frankfurter:

(Voice Overlap) like that.

James W. Knapp:

But I don’t think that’s the kind of privacy that this — that the — the Constitution intends to protect.

Felix Frankfurter:

Well, why not?

James W. Knapp:

It’s the —

Felix Frankfurter:

Why not as you go to purposes of (Inaudible)

James W. Knapp:

Because there, all he has physically is his presence, is his person there and whatever he may have on him.

The other way, it’s — as I think it was this Constitution that designed this to protect the people in their homes and their houses and in their personal effect.

But certainly not to — to protect someone who might be in someone else’s apartment or someone else’s home.

So, I think that — I mean that’s we argue before that here, he did not make such use of these premises as would entitle him to the protection of the — of the — at home.

Felix Frankfurter:

May I — may I recall the words of Article IV?

James W. Knapp:

Yes, sir.

Felix Frankfurter:

The right of — the right of the people to be secure in their person’s houses papers in effect against some reasonable searches and seizures.

Now, the fact of the matter is (Inaudible) put to you for good many years, I — I was given the privilege of whenever I wanted to work in quiet (Inaudible).

And I went there for the very purpose of (Inaudible) and you — you indicate that the Fourth Amendment — the Fourth Amendment wouldn’t apply to an inclusion into that room.

James W. Knapp:

I don’t believe it would.

Felix Frankfurter:

The relation that I have for it.

That is your point.

James W. Knapp:

I — I don’t think it would, sir.

I don’t think it should.

Felix Frankfurter:

You don’t think it should.

James W. Knapp:

No, sir, I do not think that it should.

I think it — that — if you had made some new cell, it is to keeping as your own.

Felix Frankfurter:

(Voice Overlap) if I made of it, to your side made of it was to be by myself.

James W. Knapp:

But you kept none of your possessions there.

If you had, that would have been a different proposition.

Felix Frankfurter:

(Voice Overlap) my possession on my (Inaudible) was there would’ve (Voice Overlap) —

James W. Knapp:

Oh, I think that would make us —

Felix Frankfurter:

I don’t mean permanently.

Felix Frankfurter:

I would point they would pay for them for the — for the (Inaudible).

I didn’t (Inaudible) in there.

James W. Knapp:

Well, I think that you have to — to break some place if you would think that you have control over it, that you even feel that you have a custody of your things, your private effects.

Many of the people have — as you’ve described it as a hideout, but there — certainly there is a nature of human dealings is — is such that I know personally.

My dad goes away, gives me the key to his house and said, “Jim, you can use it anytime you want to.”

Felix Frankfurter:

(Voice Overlap) —

James W. Knapp:

But I don’t go over there and sleep and move in, but if I did, I think I would be protected but when I don’t, if I just —

Felix Frankfurter:

But before that work days, suppose you are working on a brief, and go to your dad’s house by day, day after day, three days succession.

You would think that the Fourth Amendment, for purposes of that, would be protected?

James W. Knapp:

No, sir, I’ll be —

Felix Frankfurter:

Call it intrusion by the police.

James W. Knapp:

I don’t believe that he would under those circumstances.

I think I have not made such sufficient use for the purpose.

Felix Frankfurter:

Let me put to you the consequences of this argument in that.

Think of the — think of the complete trial or the — within trial, the inquiry that has to be made, how much commitment you’ve made in your father’s apartment or on (Voice Overlap) —

James W. Knapp:

Oh, yes.

Felix Frankfurter:

It’s the volume of papers that you left there whether it was just a (Inaudible) without anything written or a portion of a manuscript.

That’s a (Inaudible)

James W. Knapp:

But —

Felix Frankfurter:

(Inaudible) inquiry that you imply if —

James W. Knapp:

Well, they — they do in effect go into that in determining these questions.

If we read these cases, you’ll find that they go into — to what the man’s right of the place was.

Did he lease to someone else?

And if they go into it in some detail, so it doesn’t seem to me that that’s a — naturally, in the thing of this type, we’re going to have a great variety of situations and there’s a question of where to draw the line.

Felix Frankfurter:

But that — but —

James W. Knapp:

And —

Felix Frankfurter:

(Voice Overlap) of property relation.

Now where it comes (Inaudible) of tax laws, we say that nice of being a property law with all the incorporated distinctions — distinction coming down to futile days appropriate with only the who owns what, who is responsible for (Inaudible) when you come to a — to a constitutional provision like the Fourth Amendment, other considerations can come into play.

James W. Knapp:

Of course, the Fourth Amendment is — is put there for the protection of the people and we’re not trying to — to whittle it down.

As a matter of fact, the — the circuit courts seem to be even stronger.

James W. Knapp:

They seem to hold that he has to have some proprietary of possessory interest in the property.

And there was one case, I recall — I don’t recall the name but it’s in our brief where — where the man owned a house, he had leased our house back of it, but he lives with his father.

And they held that in that case, the liquor that was found in the premises which he said he leased that he had no standing even though he was in fact owner of them.

And there had been case after case where the man owned it and leased it to someone else and they said he has no standing because he doesn’t — he doesn’t use it.

I would like to say this that we claimed that he may not stand on the Government’s proof because of the position that he took and consistently maintained at the trial here.

We claimed that he must show some right was violated since the privilege of the Amendment is personal.

We assert that the interest he has shown is not sufficient because he was not using the places, the place of abode or a place to keep his private effects.

But, even if it should be held that he had standing here, under the circumstances, we do not believe that it avails him of anything because it is our position that the warrant was good.

And I would like to turn to that point, Your Honors, unless you have further questions on the standing issue.

Felix Frankfurter:

I just want to know whether eventually you say more than you have to say on the ultimate question, namely, that the whole concept of standing is transferring to this realm of law.

And I know the law of course.

That is what I (Inaudible)

That which is clearly in concept with the (Inaudible) of the Fourth Amendment.

James W. Knapp:

Are you referring to the — are —

Felix Frankfurter:

The position taken by the California Supreme Court.

James W. Knapp:

I — sorry, I didn’t read that.

Were you referring to the question of sanctions?

Felix Frankfurter:

I’m referring to the fact that — that anybody who’s anywhere where the police break in (Voice Overlap) —

James W. Knapp:

Well —

Felix Frankfurter:

— he has said.

James W. Knapp:

As — as I — I believe that I have answered part of that, Your Honor, through my argument that the constitutional privilege is a privilege personal.

Felix Frankfurter:

I know that’s —

James W. Knapp:

The right is personal in which — for that reason, he has to be personally asserted that it’s a personal right.

And the — the rule which suppresses the evidence as I understand is — is a judicial rule made to implement and to — to carry out the protection that’s remedial.

Felix Frankfurter:

But (Voice Overlap) —

James W. Knapp:

It gives the man a remedy if he’s been wrong and it won’t let the Government heard these issues of having obtained something illegal.

But it does and of course, tend to impose sanctions on the officer but the question is — on this question of sanction is, “Should we have sanctions here?”

It’s all right to have sanctions.

One is going to do some good.

But here, we don’t have a gross, wrongful, deliberate violation of constitutional rights.

James W. Knapp:

If —

Felix Frankfurter:

Would you get of — would you get of the imprisonment of the formula, the right of personnel, wouldn’t want to accept that formula and stated that it is a personal thing that you’re — that needs protection?

James W. Knapp:

Well, I don’t think it’s personal if it’s somebody else’s — if the — if the injury was to someone else.

Felix Frankfurter:

(Voice Overlap) question is if I’m in a —

James W. Knapp:

If a —

Felix Frankfurter:

— in an apartment or in a house, I believe breaking in and take something from that person or something that within — specifically within my control, I don’t think it would be violence in English language that that personal at the first claim I’m making.

Something that technically, personally, you know the house doesn’t belong to me, but the apartment (Inaudible).

James W. Knapp:

Why should a person charged with a crime who has not had any of his own rights invaded be able to suppress the evidence which — because it’s been an invasion someone else’s right.

Take the case of A and B that I gave to you.

He might very well be in sense that A might very well be in sense that B had used his gun to commit an offense.

It might be a willing witness, would have no objection at all to the police had been broken into his place even grossly.

Why should B be able to stand on some invasion of A’s rights?

Felix Frankfurter:

I suppose the search warrant would these papers on my body, isn’t it?

James W. Knapp:

Yes, sir.

I assume that it —

Felix Frankfurter:

I’m talking about search warrant.

The record of taking things off my body while I’m visiting your apartment in your house and the entry is illegal.

James W. Knapp:

Well —

Felix Frankfurter:

Would do you think that’s (Voice Overlap) —

James W. Knapp:

If — if the search warrant is invalid, it’s — it’s valid (Voice Overlap) —

Felix Frankfurter:

No, I’m assuming the search warrant is – is valid but it’s (Inaudible).

James W. Knapp:

Oh, you mean the — the — you’re talking not to the third point?

Felix Frankfurter:

No, I don’t want to deal with it, but I’m assuming that the search warrant is — well, the search warrant might not be valid as found in this case it isn’t.

But —

James W. Knapp:

Well, if the search warrants were not valid and the things were all new personally and the invasion to your person, I should think then, of course, you would have standing.

Felix Frankfurter:

But it’s — but the papers that I have on the desk in which I am working at the time of the offense weren’t mine.

Suppose the house wasn’t mine or the apartment (Voice Overlap) —

James W. Knapp:

The papers if they were yours, I think would be the Jeffers case makes that clear, Your Honor, if they’re your papers, if they’re your papers.

Felix Frankfurter:

But if they search the things in order to find out, that was this case (Voice Overlap) —

James W. Knapp:

If it’s your papers.

Felix Frankfurter:

What about the narcotics?

James W. Knapp:

Then you — well, he didn’t see, says they’re not his narcotics.

He’s always said that.

Felix Frankfurter:

He says you have no business to take them.

James W. Knapp:

He says, “You have no business to take them,” but he makes that standing dependent upon his use of the premises, not upon his ownership as a narcotics.

He always said, he’s never — he always said, “I — I don’t know any of these narcotics.”

But if you get to the point relative to the warrant, we contend that the warrant was a valid warrant.

The information was received from a source which had given information to the affiant on previous occasions in which was correct.

I’ll agree that the word “previous occasion” is susceptible of two meanings.

It could mean one occasion.

It could mean more than one.

But at least, it — the — on its face, the warrant showed that the information came from someone who had previously given information which was correct.

Now, he said, “Why didn’t the officer use word reliability or previous reliable?”

Well, of course, he might then turn around and say, “Well, he’s just stating a conclusion.”

Here, he’s stating a fact whether or not a person has previously found to be reliable might be considered a conclusion.

And I have no doubt if someone opposite circumstance could so argue.

But — then let’s see what the information was.

The information was detailed.

It was detailed that the petitioner and Earline Richardson were involved in illicit narcotic traffic, that they kept a ready supply of heroin in what they had at that apartment.

The apartment was designated by street number and by apartment number.

It said, “Where the narcotics were kept?

Under a pillow, on the person, on a dresser or on a window ledge?”

That’s pretty specific information.

He said that the search that the source of information had made purchases at the apartment on many occasions the last time was August 20, which was the day before the warrant was obtained.

It’s pretty specific information.

It’s a lot more than a tip.

The tip might be that Jones is engaged in a narcotic traffic.

That might be a tip or maybe that Jones and Richardson are selling narcotics but never really were in part.

That’s a tip.

But here, he’s got specific information.

Am I not correct in thinking that particularly in these narcotic places, it’s very rare to see a name of an informant given —

James W. Knapp:

That’s true.

— in a — an affidavit for a warrant in either arrest or search?

James W. Knapp:

I couldn’t state from personal knowledge but I would —

Used to be there.

James W. Knapp:

— guess that what you say is true, Justice.

Charles E. Whittaker:

Well, would there be any reason why a commissioner or a magistrate might say to the officer, “I won’t insist that you put the man’s name in the affidavit, but you tell me who he is, I want to know something about his reliability?”

James W. Knapp:

I can’t say whether a commissioner would do it.

I think he would be entitled to it, he might.

He might wish to know that.

But I don’t know whether as a matter of fact, as the Commissioner does.

But in addition to this —

Charles E. Whittaker:

You don’t know these things to prevent it, do you?

James W. Knapp:

No, sir.

I do not.

In addition to this specific character of the information, we have a knowledge on the affiant’s part that these people are narcotic addicts, that they displayed needle marks and that the statement that these people are familiar to him, I think that has to be taken into context that perhaps it’s not spelled out as much as — as a lawyer might or a prosecuting attorney might put this man as a police officer.

He’s not a trained prosecutor.

Earl Warren:

A commissioner is a lawyer.

James W. Knapp:

A commissioner is a lawyer, but the —

Earl Warren:

Well, to be exact.

James W. Knapp:

Well, I think that the Commissioner must have been satisfied that that was a meaning of that paragraph.

Besides that, the — the warrant — the application — the affidavit shows on its face that there’s some verification for this, that other sources of information, they’d received information from other sources the same as they had received from — as he had received in the narcotics people and this Court had received from this particular source.

So, you have — and he said, “The same information regarding the illicit narcotic traffic conducted by Cecil Jones and Earline Richardson has been given to the undersigned and other officers of the narcotics brought by other sources of information.”

So you have a specific, long specific detailed source of information.

You have other — his sources of information, all of which confirm it.

The question is, Is there a probable cause?

Does he have a reasonable ground to believe that the narcotics are up there?

Does he have a reasonable ground as a reasonable person to think that there’s an offense against the laws of the United States?”

If there’s narcotics there, very well.

He has specific information.

James W. Knapp:

His information from the source has previously been — been correct.

He has it confirmed by other sources, other sources.

Any of his knowledge that these people are addicts or they’ve been using narcotics.

That put it all together in looking at it in the policeman’s knowledge, reasonable for him to — to believe that the story that he’s received is correct.

And I think under those circumstances, any reasonable man would — would have a basis for believing them the offense was committed, for believing that the narcotics were in that place.

And the — the judicial officer who scrutinized this document also was of the same opinion, had two men that thought that, reasonable man who came to that conclusion.

I would like to — I don’t think the question is so much as to whether it was received, the warrant was issued on information, it might be hearsay.

But what kind of hearsay?

How reliable?

How reasonable was the officer in relying on it?

And I think in that case, that here, there are certainly — certain indicia of truthfulness, a veracity enough to justify a man to rely upon that information and to act upon it.

And I think that is all that probable cause requires.

Now, the counsel did not reach the third part of this argument concerning the execution of the warrant.

Our brief does not raise the question of standing here.

Although, it might well had been raised as to whether he had standing.

But I would like to point out first that at no time did he specifically raise this question below.

Although, he asked the necessary questions of his defendant and cross-examined the police officers.

But he never raised the objection as the execution of this warrant was faulty.

And therefore, the Government never had notice of that objection, never had an opportunity to put other police officers on the stand who have accompanied Officer Didone.

I believe there were three of them at least there.

And so the — the Government has no chance to corroborate what he had said about it.

And I think that under those circumstances, the least in this Court would do is to consider the evidence of the Government witness, Didone, as to what he said about it.

They considered whether or not testimony, the execution was valid.

And it’s submitted that — on that testimony, the — there was a compliance with 18 U.S.C. 3109 which provides as an officer may break into a home to execute a warrant if after notice of his authority and purpose, he has refused to admittance.

Now, what these officers did was in effect get the defendant to open the door without having first disclosed their identity.

Regarding they opened the door, they first knocked several times and he asked, “Who’s there?”

They didn’t answer.

He finally called out downstairs someone to get the janitor.

There are people at his door.

One of the officers went downstairs.

James W. Knapp:

He got the janitor.

They knocked again.

And when he called, “Who’s there?”

The janitor answered, “Janitor”.

Therefore, the door was opened.

And the — you’ll find the testimony of the officer on record page 37, “The door was opened three or four inches and he had a knife chain attached on the inside.”

The officer said, “I had my wallet opened with identification exposed and I’ve placed this inside the door saying I had a search warrant for the premise.”

They defend who had opened the door and was standing directly behind the partially opened door there, torn and went straight back to the bathroom.

Then seeing he was refusing the entrance, I placed my hand on the chain and pulled the knife — pulled the knife chains that loosed.”

So there, we have the announcement of this purpose obvious refusal of the defendant to grant him immediate entrance and thereafter of pulling of the chain and affecting a forcible entrance.

We contend that the statute was complied.

It did give notice of his authority in purpose.

Again, you’ll find that on cross-examination, his testimony on page 45 which he — he said, “I identified myself as a police officer and said I have a search warrant.”

He recognized the defendant and he immediately turned and went back across the foyer to the bathroom.

Well, the opinion of the dissenting judge in the Court of Appeals seems to feel that the government officer should have announced their presence when they first — in their identity when they first wrapped on the door.

The Government thinks and believes that police officers and the cases where they’re searching for evidence or things which are not evidence but things which have been used in the commission of the crime or contraband, he has a right to at least get the door open by means of some strategy.

There was no — to deliver and no lying here.

They just knock, they didn’t answer, unless say, of course, the petitioner’s statement of what transpired various greatly and from that of the government witnesses.

What you just say as to the (Inaudible) question in connection with this point of the case, namely, that there was a dispute (Inaudible) the police, how they got in.

That’s never been tried out.

James W. Knapp:

That is correct, Your Honor.

The — but it was never raised below.

The point was never specifically raised and thus, the Government was never given the opportunity of bringing corroborating witnesses.

Felix Frankfurter:

The Court of Appeals considered the question, does it not?

James W. Knapp:

The Court of Appeals did consider the question.

And they considered it on the basis of the Government’s evidence.

And we think here that it can be decided on the basis of the Government’s evidence.

Do you agree with Judge Bazelon that the majority urged in that respect was saying that it was determined by the lower court?

James W. Knapp:

Well, I — I do, sir, yes, sir —

Do you think (Voice Overlap) —

James W. Knapp:

— because —

— in your brief says it?

James W. Knapp:

I don’t believe that the lower court — the lower court certainly never determined.

That point —

That wasn’t determined?

James W. Knapp:

— was never — but none on this record —

Charles E. Whittaker:

It was presented —

James W. Knapp:

— I’ve never find — find it.

Charles E. Whittaker:

It was presented to the lower court, was it?

There was only one motion was denied and that’s this motion which had talked the sufficiency of the affidavit and warrant on its face, isn’t that it?

James W. Knapp:

That’s right.

Well, if you get to that issue, I suppose the case should have to be sent back (Inaudible).

James W. Knapp:

Well, I —

Unless — unless your point that they didn’t raise it below and therefore, it can’t be raised on appeal, etcetera.

This is a little different from the Agnello case (Voice Overlap) —

James W. Knapp:

We don’t even say that it can’t be raised on appeal.

We say that if you raise this and if you consider it, consider it on the basis of the Government’s evidence.

Even Bazelon — Judge Bazelon who dissented below considered it on the basis of the Government’s evidence.

He said on the basis of the Government’s evidence.

He found that he would have — he dissent it, but he didn’t — he didn’t find it on the basis of the defendant’s evidence.

Charles E. Whittaker:

I thought that you wanted to preserve the point.

Though, you should raise it and try it in the —

James W. Knapp:

Well —

Charles E. Whittaker:

— trial court in this situation.

James W. Knapp:

I — that’s my understanding, too, of course, in — of this nature.

But apparently, the Circuit Court did — did go into it and did decide it and so it —

Felix Frankfurter:

(Inaudible) if a court said that an issue is before it, you ought not to decide it on a mutilated — on mutilation — on a mutilated basis.

James W. Knapp:

Perhaps not, but I think that here, we — we can safely assume that the Government’s evidence would certainly not be any different in what has already is.

It would merely bring two other witnesses and testify to substantially the same thing.

Felix Frankfurter:

On the concept that it might be controverted.

James W. Knapp:

Well, it has been controverted by the defendant.

Felix Frankfurter:

(Voice Overlap) the whole difference and your other (Inaudible)

James W. Knapp:

Well, of course, he might bring the janitor.

He might bring the janitor.

I don’t know.

The janitor was there.

Felix Frankfurter:

Well I’m suggesting is that it — had something in the cases.

If the Court of Appeals says, “This would be before us, it wasn’t raised.”

(Inaudible) but didn’t want to.

James W. Knapp:

Well, they — they decided it and —

Felix Frankfurter:

(Voice Overlap) —

James W. Knapp:

— I can’t quarrel with the Court of Appeals, but we — we strenuously contend that on the Government’s evidence, certainly there was a compliance with the statute.

There was an announcement of the authority in purpose.

He was refused to admit admittance, and it was after that and after the —

William J. Brennan, Jr.:

And you might have thing of (Inaudible) which is here or isn’t determined by that understanding.

Why in this is (Inaudible) by a reference solely to represent that?

James W. Knapp:

Well, the only alternative would, of course, be to send it back for trial on that point.

And it seems to me that —

William J. Brennan, Jr.:

What — what would be our justification?

In light of the (Inaudible)

James W. Knapp:

Personally — my personal view point, Your Honor, is that the thing ought — the question ought not to be here at all.

William J. Brennan, Jr.:

(Inaudible)

James W. Knapp:

That’s —

William J. Brennan, Jr.:

(Inaudible)

James W. Knapp:

That —

William J. Brennan, Jr.:

Assuming it is, assuming it is in light of what the Court of Appeals did, I simply don’t follow you that it should be resolved by reference only to the Government’s witness.

James W. Knapp:

Well, of course, the only other way to do it would be (Voice Overlap) —

Suppose your practical answer to that would be that it’s not a very strong point.

James W. Knapp:

Well, my practical answer, of course, if the —

(Inaudible)

James W. Knapp:

Well, that’s —

William J. Brennan, Jr.:

At least one judge below (Inaudible)

James W. Knapp:

That’s — I — I — if —

William J. Brennan, Jr.:

It might be the others.

James W. Knapp:

— if the defendant’s version is true, it was — if the defendant’s version is true, well, then, of course, it is a strong point.

We say that the defendant’s version is not true, we say that he never gave us the chance to — to contest it any further then he never asked for a finding by the court below, the trial court on this point and that therefore, we — I feel that he completely raised the point that it should not be here but the Circuit Court didn’t take it.

But in any event, the — the Court should desire to decide this point on the record before it.

We contend that the fact that they didn’t announce their presence when they first — that — their identity and the purpose when they first wrap on the door, it was perfectly all right that officers have a right to use a strategy to get people inside to open the door.

And that’s obviously because if you knocked on the door and say you’re a narcotic agent with a search warrant, the evidence and the contraband is going down the drain before you ever get inside the door.

Felix Frankfurter:

That — that —

James W. Knapp:

No one is going to (Inaudible) suppose he is running for the bathroom there.

Felix Frankfurter:

Mr. Knapp, that argument takes you a long distance.

James W. Knapp:

Well —

Felix Frankfurter:

We’re now suggesting a special doctrine of law.

Mr. Henkin suggests the special dock for a particular — we’re looking at possessory cases.

You’re not suggesting that the position is — the announcement —

James W. Knapp:

Well —

Felix Frankfurter:

— didn’t apply to narcotics (Voice Overlap) —

James W. Knapp:

I say the provision of the — oh, yes, Your Honor.

The announcement —

Felix Frankfurter:

(Voice Overlap) —

James W. Knapp:

— the announcement was made, the announcement was made before he broke the door, before he pulled the latch door, the string — the chain there, before he pulled the chain.

As soon as that door was opened, he told him who he was and why he was there.

The man ran back.

He was refused to admit and so he went in, so the statute was complied with.

Government Justice — Judge Bazelon’s only complaint was that you didn’t comply within earlier, and my answer to that is that’s utterly impractical because if you come across to that extent, you might not never need to worry about search warrant because you’re never going to find any narcotics because it’s going down the drain in normal reaction.

And secondly, there’s another reason in the cases of more serious nature.

If you’re going over, this has been applied in the Woods case to arrest, you’re going to arrest around a desperate character and you tell him who you are you’ll able to find some fellow shooting at you.

And so, you have a right to try to get that door open for your own protection.

I think officers have that right.

James W. Knapp:

Otherwise, you can announce.

An officer announces who he is before the — he gets and then to open the door.

He’s likely to get killed.

And it’s a real serious thing.

I’m not saying every case, but there certainly are some cases.

We had one example of it here in the district.

For example, where an officer was killed, he never know.

So, they have a right to take precautions to prevent the destruction of contraband and the materials used in the crime and to protect their own lives.

Hugo L. Black:

If — if either one of you says that the thing about that there was narcotic.

Where was the narcotic found?

James W. Knapp:

[Laughs] Your Honor please, the — the narcotics —

Hugo L. Black:

I’m asking (Inaudible)

James W. Knapp:

Well, perhaps, we ought to clear that point.

When the officers knock, apparently, the defendant went into the bathroom, and he — he leaned outside and he called down to the man downstairs who was a detective to tell him that someone was at his door and please get the janitor.

But at the same time, he reached around and so he went to — into an awning that was partially closed, apparently, had falls and there was a bird’s nest in the awning.

And he placed his hand in there, and it was in the bird’s nest that they found the narcotics and the adequate paraphernalia.

In other words, he was using a bird’s nest which the birds had used to — that constructed in a partially closes, partially opened and closed awning.

They find the narcotics.

In effect, the —

Hugo L. Black:

Was known that they went to that?

James W. Knapp:

Well, as the officer testified, I believe that the bird’s nest where they’ve got the paraphernalia and the other one looked out.

And the bird’s nest fell out and fell down on the window ledge and that’s the time that they found the capsule.

[Laughs] So, actually much as I don’t have the narcotics if I’ll not even be considered as being on the premises, it might — but of course they want to break that argument because [Laughs] the — the awning, the awning was attached over the window.

Earl Warren:

Mr. Henkin, I understand that you are representing this man as an indigent defendant and —

Louis Henkin:

Yes, sir.

Earl Warren:

— without any compensation and — through assigment by the Court of Appeals below.

And I would like to express appreciation of the Court to you.

You’re very —

Louis Henkin:

Thank you very much, sir.

Earl Warren:

— able and very — on this matter in which you — you represented.

Earl Warren:

So it’s — comfort the Court to know that members of the bar will undertake assignments like this in the administration of justice.

We thank you.

Louis Henkin:

Thank you, sir.

The assignment of the court below was to my co-counsel.

He was —

Earl Warren:

Yes.

Louis Henkin:

— unfortunately ill but I had to argue this case.

Earl Warren:

Yes, I — I understand that.

Mr. Knapp, of course, we — we appreciate your very earnest, able manner in which you have represented the Government of the United States in this matter.

James W. Knapp:

Thank you, it’s been an interesting talk.

Earl Warren:

I think it would serve no purpose to start the next case.

We would only have — have minutes unless counsel insists on starting at this time, we’ll — we will carry on.

(Inaudible)

Earl Warren:

[Laughs] Very well.